Fetch U.S. DOJ Blog Entries
doj_blog_entries.RdFor accessing U.S. Department of Justice (DOJ) open data blog entries.
Arguments
- n_results
The number of results to return. By default, 50 results are returned.
- search_direction
Set to ASC or DESC to fetch data starting from the most or least recent entries. By default, data is sorted in descending order (the most recent entries).
- keyword
Only return results containing a keyword. Keyword can be a single word, a list or words, or a regex separated by the pipe delimiter
- clean
Set to FALSE to return data without additional cleaning. By default HTML tags, white space, line breaks, and other messy characters are removed. Epoch time is converted to year-month-day format.
Examples
# Return a dataframe with 50 of the latest records. Data is cleaned.
latest_records <- doj_blog_entries()
#> Warning: There were 2 warnings in `mutate()`.
#> The first warning was:
#> ℹ In argument: `created = anydate(as.numeric(created))`.
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#> ℹ Run `dplyr::last_dplyr_warnings()` to see the 1 remaining warning.
head(latest_records)
#> body
#> 1 From November 26 to 27, the ICITAP Albania Police Oversight Agency (POA) advisory team partnered with the POA delegation, led by the POA Director General, the POA Tirana Director, and two POA Specialists for the 2024 European Partners Against Corruption (EPAC) Conference in Bucharest, Romania. The POA delegation joined more than 30 member countries aligned to the Europe Against Corruption Network, along with representatives from ICITAP and non-EU law enforcement partners. Hosted by the Romania Anticorruption General Directorate (DGA) and other anti-corruption agencies to include police oversight bodies of Romania, the conference brought together prominent speakers from international organizations, EU agencies, and EPA) and European Contact-point Network Against Corruption (EACN) members (including POA Albania) to discuss and share strategic issues and practices for the prevention of and combatting of corruption. Conference themes and breakouts session included: Investigating and prosecuting corruption and fraud; Preventing corruption and integrity building in law enforcement; Advancing and building resilient anticorruption frameworks for public institutions and private sectors. The annual conference provides an opportunity to bring together leader-practitioners and subject matter experts to discuss relevant topics and mutual challenges, leading to constructive recommendations. The EPAC and EACN forum provides both ICITAP and POA representatives the opportunity to thicken the network across a diverse and niche group of European organizations focused on anti-corruption efforts, including police corruption. The event featured the annual EPAC/EACN Awards for the best anti-corruption or police oversight initiatives. The U.S. Department of State, Bureau of International Narcotics and Law Enforcement Affairs funds an embedded ICITAP Advisory team at the Ministry of Interior to train, advise, and assist the POA advance the rule of law and EU integration.
#> 2 A crucial element of the Justice Department’s fight against white collar crime is transparency — being clear about what we at the department are doing and why. As someone who has spent significant time as a defense lawyer, I know from personal experience how important it is to be able to explain to your client — whether that client is an individual or a board of directors at a publicly traded company — what is happening in an investigation, how the government might view their actions, and the risks and the benefits of proceeding in a certain way.This is not a new concept. The Justice Department has long valued transparency. That is why the Justice Manual, which outlines department polices on a wide range of issues, including critical decisions such as charging, is publicly available. And that is why all sorts of department policies — such as policies addressing when to charge mandatory minimum sentences or take actions that could affect members of the news media — are also publicly available.But the need for transparency is particularly acute in our efforts to tackle white collar crime and corporate criminal enforcement. Why is that? Because corporations have compliance officers.For a lot of my career, I was an organized crime prosecutor. I prosecuted members of the mafia, the five families — criminal organizations that exist to profit through greed and crime. Their members take a vow of silence. They don’t have compliance officers. White collar crime is different because most companies are not criminal organizations — yes, they operate for profit, but most companies are made up of hundreds or thousands of people just doing their jobs, who want to operate within the law. And when individuals at a company start committing crimes — for example, fraud, insider trading, or bribery — if the company has the right mechanisms in place, there can be many opportunities for others at the company to learn of the misconduct and stop it in its tracks.That’s the ultimate goal, and it’s why transparency around white collar criminal enforcement is so critical.First, it encourages companies to stop bad actors and deter them from misconduct. The Criminal Division has long had public policies that focus on effective compliance programs, including questions directed to how well the compliance program is resourced, whether compliance personnel are empowered at the company, and more recently, how the company uses compensation as both a carrot and a stick to incentivize good corporate behavior or to hold to account those who engage in or allow bad behavior. There is no oath of omerta here. To the contrary, being transparent about our expectations and the factors we consider in determining the appropriate resolution in a case makes it more likely companies will implement robust compliance programs that will detect and prevent misconduct before it spreads. With our policies and our words and actions, we at DOJ try to empower compliance personnel to demand a seat at the boardroom table to ensure that compliance programs are properly designed and appropriately resourced. To make the business case for compliance.Second, transparency is also key for companies and their boards, executives, employees, and counsel to navigate investigations and prosecutions — so they know what to expect if we come calling. We don’t want our expectations to come as a surprise or to catch individuals or companies off-guard.So how do we at the department and the division make sure that we are being as direct as possible about the policies our career prosecutors are following, as well as how those policies work in practice?By releasing posts like this, by having our policies on our website, by explaining our decision making in the relevant considerations section of our corporate resolution documents, and through a new, exciting resource that I will describe below.In the spirit of transparency, this post describes some of the key policy changes and their impact during my time leading the Criminal Division: (1) our Compensation Incentives and Clawbacks Pilot Program; (2) how we account for a company’s history of misconduct; (3) how we credit payments to other authorities as part of our “anti-piling on” policy; and (4) our Corporate Enforcement and Voluntary Self-Disclosure Policy. This post will also discuss several steps we’re taking today to clarify these policies and codify our recent practices when implementing them.First is the Criminal Division’s Compensation Incentives and Clawbacks Pilot Program. In September 2022, Deputy Attorney General Monaco directed the Criminal Division to formulate guidance to reward companies that employ compensation clawbacks or similar arrangements that shift the burden of corporate financial penalties away from shareholders — who frequently play no role in misconduct — onto those more directly responsible.We created a working group in the Criminal Division, consulted widely, and heard various concerns and ideas raised by experts and stakeholders. And we looked to our prior experience, including the resolutions with MoneyGram, Western Union, and Danske Bank, in which these financial institutions agreed to implement compliance-related criteria in their compensation systems. In March 2023, then-Assistant Attorney General Kenneth Polite announced the Pilot Program.The Pilot Program has two parts. First, in every criminal resolution with the Criminal Division, the company must include criteria related to compliance in its compensation and bonus system. Second, every company resolving with us is eligible for a fine reduction for any compensation withheld or clawed back from certain culpable employees, either at the time of resolution or during the period of the agreement.We’re now just more than halfway through this Pilot Program, and in the spirit of transparency, I wanted to address how we think the program is working. To that end, today we are announcing a first-of-its-kind: a status report on one of our pilot programs. This report is an example of how the division can continue to be transparent about trends or issues that span more than a single resolution. We have long sought to be transparent in our resolutions, including by discussing in the papers the factors we considered in determining the appropriate resolution in the case. This kind of status report is another way for us to be transparent about how we are approaching issues that arise across cases. We know that the business community looks to our policies and our words in implementing and calibrating compliance programs, and so we understand that our assessments of our policies and our enforcement work — looking both at past precedent and future trends — are particularly relevant.In short, our Pilot Program has been a success.In the time we’ve had the Program, 16 companies have entered into corporate resolutions and agreed to implement compliance criteria into their compensation programs. This helps promote a corporate culture that rejects wrongdoing for the sake of profit and rewards those who do the right thing.We’ve also seen three companies — Albemarle, SAP, and TD Bank — take advantage of the second part of the program and receive fine reductions for withheld compensation. In fact, TD Bank not only received a fine reduction of about $2 million at the time of its guilty plea for compensation it had already withheld, but it also may receive an additional reduction of up to $5.5 million if it recoups more compensation during the term of its plea agreement.What have we learned since March of last year? Well, we heard before we released our Pilot Program that certain local laws may make it difficult for companies to recoup money that’s already been paid, and this has been borne out. Therefore, we’ve made clear that we will award fine reductions not only to companies that recoup compensation from qualifying employees, but also to those that withhold the money from ever being paid in the first place. We’ve also communicated to our prosecutors that they should make sure companies know early during an investigation that we are interested in, and able to reward, appropriate withholding and clawbacks of compensation from culpable individuals. So, defense counsel should expect that our career prosecutors will bring that up in their early conversations with you and your clients. We’ve updated our Evaluation of Corporate Compliance Programs with suggested questions that our prosecutors can pose to companies on this topic.So, looking back, over a dozen companies have been required to align compliance and compensation systems, and, from what we hear both at conferences and in our work, many more have likely done so on their own. And in our resolutions, a portion of fines has been shifted from innocent shareholders onto more responsible individuals. While we are only halfway through the Pilot Program, I am proud of our achievements thus far.That brings me to the second policy: how the department considers a company’s prior history and how we approach multiple resolutions by a single company. In October 2021, DAG Monaco announced changes to department policy such that prosecutors now must consider the full criminal, civil, and regulatory record of any company when determining an appropriate resolution. Second or successive DPAs and NPAs are disfavored. In assessing all aspects of a company’s prior history, we consider the type of prior resolution, the age of the misconduct, the similarity to the conduct currently under investigation, any overlap in culpable personnel, and more. Under the Criminal Division’s revised Corporate Enforcement Policy and Voluntary Self-Disclosure Policy (CEP) it is clear that, for recidivist companies, cooperation and remediation reductions will generally not be from the low end of the U.S. Sentencing Guidelines’ fine range, and prosecutors will have discretion to determine the starting point for the reduction based on the particular facts and circumstances of the case.In the past three years, we have accounted for prior history by selecting an appropriate starting point for a criminal penalty, before any reduction for cooperation and remediation. For companies that have no prior history, the starting point is often the bottom of the otherwise applicable range under the Guidelines. But for companies with prior misconduct, depending on the nature and seriousness of that misconduct, and as guided by the factors established by DAG Monaco, we will now start at a higher percentile, as you will have seen from our resolutions. For example, for the resolution with ABB we started at the 75th percentile because ABB had multiple prior criminal resolutions, including two FCPA criminal resolutions. In contrast, we started our calculation with Trafigura at the 5th percentile of the Guidelines range because the company had a dated prior criminal guilty plea.I want to highlight a slightly different circumstance that has arisen in several recent investigations. Instead of a company having prior civil or criminal resolutions, a company may have several ongoing investigations into different criminal offenses that are resolving concurrently. While an ongoing investigation does not constitute a prior resolution, we must account for a company’s commission of multiple criminal schemes. Depending on the particular facts and circumstances, this can be indicative of a broader failure in a company’s culture or compliance program.Take our recent resolutions with Raytheon Corporation. The company committed two schemes: a major government fraud scheme involving defective pricing, prosecuted by our Fraud Section’s Market Integrity and Major Frauds Unit along with the U.S. Attorney’s Office in Boston; and a scheme involving the bribery of a Qatari government official, led by the Fraud Section’s Foreign Corrupt Practices Act Unit, along with my old office the Brooklyn U.S. Attorney’s Office, and the National Security Division.These schemes overlapped in time: 2012 through 2016 for the foreign bribery conspiracy and 2012 to 2013 and again from 2017 to 2018 for the defective pricing misconduct. Both schemes were sufficiently serious to warrant criminal resolutions with the department. But there was no overlap in personnel and the mispricing and bribery misconduct were far different from each other. The company was willing to resolve both cases at the same time, and did not engage in misconduct after receiving a prior DPA or NPA — and therefore did not implicate our policy disfavoring successive NPAs or DPAs. As a result, Raytheon resolved both investigations with DPAs. But starting at the bottom of the Guidelines range would have understated the totality of Raytheon’s criminality. As we explained in the relevant considerations section of the agreements, we therefore calculated the penalty starting above the bottom of the Guidelines range in each of the two DPAs to account for the company’s culpability in multiple criminal violations.This does not mean that a company should expect to receive a heightened penalty simply because there are other investigations at play. We recognize that companies, particularly multinational entities or those in highly regulated industries, may have frequent touchpoints with regulators. And the policy disfavoring successive DPAs or NPAs does not apply when a company resolves criminal investigations concurrently. But where a company has committed two criminal schemes that warrant criminal prosecution, including when resolving at the same time, we will account for that in our resolutions — something we expect will be seen again soon.The third policy I would like to address concerns our determinations of whether, and if so, how much, to credit payments made by companies simultaneously resolving with other authorities, whether criminal or civil, domestic or foreign. In each of our criminal resolutions, we review the evidence and the law and determine the available penalties, forfeiture, and victim compensation. Once that is complete, we assess other financial aspects of the resolution, including crediting payments to other agencies, ability to pay, and payment terms.Since 2018, our formal “anti-piling on” policy has been outlined in the Justice Manual, but we applied a similar approach to coordinated resolutions before that time. Under this policy, department prosecutors investigating the same misconduct are to coordinate with one another to avoid the unnecessary imposition of duplicative fines, penalties, and/or forfeiture against a company. Prosecutors should also endeavor, as appropriate, to coordinate with and consider the amount of fines, penalties, and/or forfeiture paid to other federal, state, local, and foreign enforcement authorities seeking to resolve with the company for the same misconduct.As you all have seen, prosecutors implementing this policy often exercise discretion to credit a portion of the penalty or forfeiture owed to the department against payments made to other authorities. For instance, in FCPA cases against issuers, we typically credit disgorgement payments made to the SEC against criminal forfeiture. The rationale is simple — where a company is already disgorging its ill-gotten gains, it does not make sense to have the company also pay criminal forfeiture, which serves the same purpose. On the flip side, we have made clear we now require all companies resolving FCPA violations, including non-issuers, to forfeit their ill-gotten gains and disgorge any profits gained through the scheme.But we take a different approach to crediting when the monetary components of our resolutions can support victims. We never credit restitution or forfeiture that can be used for remission payments to victims, because both provide direct compensation to victims of the underlying crimes. The rare exception to this rule is when another agency has an equally effective mechanism to compensate victims. The fines and monetary penalties in our resolutions, as you may know, are deposited into the Crime Victims Fund, or CVF. The CVF provides general assistance to victims of crime by distributing its funds to federal, state, local, and tribal victim assistance organizations and similar programs. Because of the critical support offered by the CVF, once our prosecutors determine the appropriate penalties and forfeiture, our goal is to be deliberate in our decisions about crediting to ensure that the penalties to be paid are appropriately apportioned and that we are considering the uses to which those penalties will be put. To ensure that these principles are implemented in a consistent manner, we are issuing additional guidance to all Criminal Division prosecutors, which will codify and clarify our existing practices while ensuring that all penalties and forfeitures we impose in our corporate resolutions are based on the facts and the law.The last policy change I’d like to highlight is the Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy, or CEP.Our CEP’s roots trace back to the FCPA Pilot Program from 2016, which was one of the first department policies to set out, in black-and-white, the real benefits that come to companies that step up and own up by voluntarily self-disclosing misconduct. Since that time, the FCPA Pilot Program evolved into the CEP, which, since 2018, has applied across the Criminal Division. And now all litigating components across the department have their own VSD policies.In January 2023, we announced the first substantial changes to the CEP in over five years. These changes helped widen the gap between the benefits that inure to companies that act as good corporate citizens, and the penalties for companies that do not. We created a potential path to a declination with disgorgement for companies that voluntarily self-disclose misconduct, even in the face of aggravating factors. We also increased the potential fine reduction available to companies that fully cooperate with our investigations and timely and appropriately remediate the misconduct — up to 50% for companies that do not voluntarily self-disclose and up to 75% for those that self-disclose but for which a criminal resolution is warranted.One of the goals of these changes was to allow our prosecutors to make finer distinctions among companies to reward those that truly go above and beyond.Companies should not expect to receive the maximum possible fine reduction simply for cooperating with our investigation. All companies start with zero credit and must earn any reduction that accounts for both cooperation and remediation.You’ve seen us make those distinctions in the past two years: for example, SAP received a 40% fine reduction for its significant cooperation and remediation, which was immediate, proactive and preserved important evidence. In contrast, Trafigura only received a 10% fine reduction because its cooperation and remediation was slow, reactive and failed to preserve relevant evidence.In none of those case did the company voluntarily self-disclose the misconduct. As a result, they were not eligible for the greatest benefit under our CEP, a declination with disgorgement. That is by design—we want to encourage companies to come forward when they detect misconduct and do so promptly. That helps us preserve evidence about misconduct we otherwise would never have known about and hold individual actors accountable. After all, companies act only through individuals, and individual accountability is our number one goal.But we recognize that whether a company meets the precise requirements of a “voluntary self-disclosure” can have significant impact on the nature of the ultimate resolution. If a company does not qualify for a CEP declination, it could face a potential criminal resolution that carries significant penalties and obligations over several years, including cooperation and reporting requirements and necessary improvements to compliance programs.We therefore must balance our desire to incentivize reasonably prompt disclosures of crimes we are not aware of with the reality that sometimes companies may come forward and fulfill many of our requirements but not qualify for a VSD under our policy.Take Albemarle. We’ve discussed this case frequently. That’s because it stands as a key example of a company that tried to do the right thing, but narrowly missed the VSD mark. The company substantially cooperated and undertook significant remediation. It also voluntarily disclosed the misconduct that formed the basis for this agreement before the conduct came to the department’s attention. To be sure, the company was not “reasonably prompt” in doing so, as defined under the CEP, and therefore was ineligible for a declination with disgorgement. But the company’s decision to come forward — even if belatedly — resulted in significant and concrete benefits, including entering into a non-prosecution agreement rather than a DPA.The company’s decision to disclose also factored heavily in our decision to award a 45% discount off the low end of the penalty range — the highest reduction ever and near the maximum possible under the CEP.Rooted in this experience, today we are amending our CEP to account for that scenario. Specifically, where a company’s self-disclosure does not meet the definition of “voluntary self-disclosure” as articulated in the CEP, but the company has demonstrated that it acted in good faith to self-report the misconduct — and that it fully cooperated and timely and appropriately remediated — prosecutors will consider the company’s self-disclosure in determining the appropriate resolution, including the appropriate form, the appropriate monetary penalty, and the length of the term of the agreement.Our revisions to the CEP now reflect our experience with Albemarle and reflect another incentive for companies to do the right thing. Those that make good faith efforts to self-report, even if they do not qualify for a declination, could still receive substantial benefits. These potential benefits include, among other things, the possibility of a non-prosecution agreement, greater credit for cooperation and remediation, and a potentially shorter length of the term of agreement. And this is consistent with the approach that other DOJ offices have taken, including U.S. Attorneys’ Offices, who favorably consider prompt self-disclosure even if all the VSD criteria are not satisfied.The message remains clear — there are real and concrete benefits to calling us before we call you.We are also codifying two other current practices in the CEP. First, consistent with our longstanding practice, the policy now makes clear that, to qualify as a voluntary self-disclosure, the company must disclose original information, that is, information about which the department was not already aware. This aligns with one of the primary goals of the CEP, which is to encourage companies to disclose — and allow us to prosecute — crimes about which we were not aware. It is also inherent in the definition of “disclosure” and the definition we use in our Corporate Whistleblower Awards and Individual VSD Pilot Programs. Although we will consider a company’s good faith disclosure of information that — unbeknownst to them — we already knew about under the CEP amendment we’re announcing today, a declination with disgorgement will not be available.Second, the updated CEP removes one of the aggravating circumstances — significant profit — that could make a company ineligible for a presumption of declination. We recognize that the amount of profits may not be known during the early stages of an investigation. We don’t want companies to hesitate in coming forward out of fear that, down the line, we may determine that the amount of profits were significant. After all, even with a CEP declination, companies are required to disgorge their illicit profits, whatever they may be.This change aligns our CEP with the voluntary disclosure policy issued by the U.S. Attorneys’ Offices and our primary goal: to encourage companies to come forward at the earliest possible juncture so we can prosecute culpable individuals. This applies with even greater force to those who orchestrate a significantly profitable scheme. And while significant profits may in some cases be correlated with egregious misconduct, we reached the conclusion that a separate aggravating factor of “significant profits” is not necessary.Over the years, the Criminal Division has continued to lead the way in the department’s corporate enforcement efforts. We never stop thinking, discussing, and evaluating the best way to root out and deter misconduct. While the particular facts or issue may change, one thing remains constant — the division’s commitment to transparency. We view our enforcement strategy as an ongoing conversation that is enriched by differing viewpoints and robust discussion. We may not always agree with the defense bar, but we know that our policies are made stronger, more effective, and more just when we are transparent.It has been my great privilege to lead the dedicated career public servants of the Criminal Division. I am awed every day by each member of the division in all that they do on behalf of the American people. Our prosecutors work tirelessly, and with the highest integrity, to see that justice is done in each and every case. I am proud to have been a part of the Criminal Division for the past two-and-a-half years, and I look forward to seeing its continued successes.View the Corporate Enforcement Page: Criminal Division | Criminal Division Corporate EnforcementView the CEP: Criminal Division | Revised Corporate Enforcement Policy and Voluntary Self-Disclosure PolicyView the Enforcement Note: Criminal Division | Corporate Enforcement Note: Compensation Incentives and Clawback Pilot
#> 3 On November 21, ICITAP representatives attended the graduation ceremony for the 72nd class of the Kyiv Patrol Police Academy. This cohort included 69 graduates—18 women and 51 men—who took an oath and received the honorable title of police officers. These graduates will now join Patrol Police units across Ukraine, enhancing law and order nationwide. This milestone brings the total number of Patrol Police Academy graduates to 5,446, each trained under the joint efforts of Ukraine’s Ministry of Internal Affairs, National Police, and international partners. ICITAP has been a longstanding supporter of the academy, contributing to the development of modern training standards and the professional growth of future law enforcement leaders in Ukraine. In Ukraine, ICITAP works with the support of and in coordination with the U.S. Department of State Bureau of International Narcotics and Law Enforcement Affairs and the U.S. Embassy in Kyiv.
#> 4 View All Environmental Crimes BulletinsIn This Issue:Cases by District/CircuitIndictmentsGuilty PleasSentencingsCases by District/CircuitDistrict/CircuitCase NameStatute(s)Southern District of AlabamaUnited States v. AM/NS Calvert LLCSteel Production Emissions/ Clean Air ActUnited States v. AMVAC Chemical Corporation, et al.Pesticide Manufacturer/ Resource Conservation and Recovery ActDistrict of AlaskaUnited States v. Kyle Potter, et al.Crab Harvesting/Lacey ActDistrict of ArizonaUnited States v. Raymond Anthony Rabago Montoya, et al.Wildlife Trafficking/ Conspiracy, Lacey ActEastern District of ArkansasUnited States v. Keidrick D. Usifo, et al.Tiger Cub Possession/Big Cat Safety ActWestern District of ArkansasUnited States v. Redemption Repairs & PerformanceEmissions Tampering/ Clean Air ActSouthern District of CaliforniaUnited States v. Edwin FloresGreenhouse Gas Imports/ ConspiracyNorthern District of FloridaUnited States v. Gremex Shipping S.A. de C.V.Vessel/Act to Prevent Pollution from ShipsDistrict of IdahoUnited States v. Brian Tibbets, et al.Asbestos Remediation/Clean Air Act, ObstructionEastern District of MissouriUnited States v. Visionary Bowling Products, et al.Hazardous Waste Storage/ Resource Conservation and Recovery ActDistrict of MontanaUnited States v. Travis J. Branson, et al.Eagle Part Sales/ Bald and Golden Eagle Protection ActDistrict of NebraskaUnited States v. Ramiro Hernandez Tziquin, et al.Eagle Killing/Bald and Golden Eagle Protection ActWestern District of North CarolinaUnited States v. Robert G. GambillBald Eagle Killing/ Bald and Golden Eagle Protection ActSouthern District of OhioUnited States v. Ronald P. BedraAnimal Videos/Animal Crush, ConspiracyMiddle District of PennsylvaniaUnited States v. Frock Brothers Trucking, Inc., et al.Emissions Tampering/Conspiracy, Clean Air ActDistrict of Rhode IslandUnited States v. Jose V. FernandezAsbestos Training Certification/ False StatementSouthern District of TexasUnited States v. Andres Alejandro SanchezWildlife Trafficking/ Conspiracy, Lacey Act, SmugglingDistrict of VermontUnited States v. Wan Yee NgTurtle Smuggling/SmugglingEastern District of VirginiaUnited States v. Michael MacartneyAnimal videos/Animal Crush, ConspiracyUnited States v. Benjamin GathercoleHazardous Waste Transportation/ Resource Conservation and Recovery ActWestern District of VirginiaUnited States v. Envigo RMS, LLC, et al.Dog Breeding Facility/ Animal Welfare Act, Clean Water Act, ConspiracyEastern District of WashingtonUnited States v. Ryan Hugh Milliken, et al.Emissions Tampering/Clean Air Act, False Claims, Wire Fraud IndictmentsUnited States v. Visionary Bowling Products, et al.No. 4:24-CR-00418 (Eastern District of Missouri)AUSA Dianna CollinsOn October 2, 2024, prosecutors charged Visionary Bowling Products (VBP), and company owners, John Wonders, Sr., and Jason Wonders, with violating the Resource Conservation and Recovery Act (RCRA) for illegally storing hazardous waste (42 U.S.C. § 6928(d)(2)(A)).VBP operated a 60,000 square-foot factory, which it used to manufacture bowling balls for approximately 20 years before ceasing operations in July 2019.When the defendants abandoned the property in October 2019, they left behind a variety of chemicals and industrial materials. On October 21, 2021, a fire ignited and burned for approximately 12 hours, requiring multiple fire departments to respond. Officials ordered the evacuation of nearby homes and businesses due to the potential hazard posed by the burning chemicals. The following day, a smaller fire rekindled but was quickly extinguished.Local environmental officials later discovered hundreds of discarded and abandoned containers at the facility in various stages of deterioration. Testing by federal environmental officials confirmed that the defendants had illegally stored hazardous waste at the site.The U.S. Environmental Protection Agency Criminal Investigation Division and Missouri Department of Natural Resources conducted the investigation. Case photo of bowling ball facility following a fire.United States v. Andres Alejandro SanchezNo. 24-CR-1264 (Southern District of Texas)AUSA Tory SailerAssistance from ECS Senior Counsel Elinor ColbournOn October 29, 2024, prosecutors charged Andres Alejandro Sanchez with smuggling, conspiracy, and violating the Lacey Act for smuggling spider monkeys into the United States (18 U.S.C. §§ 371, 545; 16 U. S.C. §§ 3372(a)(1), 3373(d)(2)).On October 7, 2024, Sanchez travelled from Mexico to Laredo, Texas, and failed to declare a spider monkey he had in his vehicle to Customs and Border Patrol officers as he attempted to cross the border.The U.S. Customs and Border Control, Homeland Security Investigations, and U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation. Guilty PleasUnited States v. Frock Brothers Trucking, Inc., et al.No. 1:24-CR-00250 (Middle District of Pennsylvania)AUSA William BeheOn October 1, 2024, Frock Brothers Trucking, Inc. (Frock), pleaded guilty to conspiracy and violating the Clean Air Act (CAA) for tampering with the emission control systems of several of their heavy-duty fleet trucks. The company admitted to disabling emission controls in violation of the CAA (18 U.S.C. § 371 and 42 U.S.C. § 7413(c)(2)(C)). The company is set for sentencing on January 9, 2025.Frock, a long-distance trucking company based in New Oxford, Pennsylvania, transports a variety of goods, including snack foods, refrigerated items, and produce. Ed Frock owned the company until his death in August 2022.Between November 13, 2018, and December 28, 2018, Frock contracted with co-defendant Leon Martin, a mechanic who operated out of his home, to disable and/or remove emission control components from eight of their diesel trucks. Martin also tampered with the required onboard diagnostic equipment (OBD) to delete factory-installed emission controls from Frock's heavy duty diesel trucks. Martin's tunes enabled those deleted trucks to operate without emission control devices as required by federal law.Martin pleaded guilty to violating the Clean Air Act. He is scheduled for sentencing on January 7, 2025.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. United States v. Jose V. FernandezNo. 1:24-CR-00071 (District of Rhode Island)AUSA John McAdamsOn October 2, 2024, Jose V. Fernandez pleaded guilty to making false statements for distributing false asbestos abatement training certifications (18 U.S.C. § 1001 (a)(3)). Sentencing is scheduled for January 7, 2025.Fernandez owned the Rhode Island Safety Environment Training Center (RISE). The Rhode Island Department of Health (RIDH) accredited the facility to provide asbestos abatement training. On multiple occasions between 2021 and 2023, Fernandez submitted false documentation to the RIDH attesting that nearly two dozen individuals paid for, attended, and successfully completed an Environmental Protection Agency-approved abatement training program when, in fact, no one attended any classes.The U.S. Environmental Protection Agency Criminal Investigation Division and the Rhode Island Department of Health conducted the investigation.United States v. Redemption Repairs & PerformanceNo. 4:24-CR-40016 (Western District of Arkansas)AUSA Sydney StanleyOn October 2, 2024, Redemption Repairs & Performance (RRP) pleaded guilty to violating the Clean Air Act (CAA) for modifying and deleting the emissions control systems of diesel engines and tampering with and rendering inaccurate the vehicles’ onboard diagnostic systems (OBD) (42 U.S.C § 7413(c)(2)(C)).RRP is a truck repair shop specializing in diesel engine repairs and performance located in Texarkana, Arkansas. Between May 2020 and October 2022, the company falsified, tampered with, and rendered inaccurate monitoring devices required to be maintained and followed under the CAA. After removing or altering the emission control equipment on diesel trucks, RRP modified the diesel trucks’ OBD systems to prevent detection of the removal and disabling of the equipment. The company performed this service on close to 50 vehicles, charging between $2,600-$2,700 per truck.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. United States v. AM/NS Calvert LLCNo. 1:24-CR-00117 (Southern District of Alabama)ECS Senior Counsel Kris DigheAUSA Mike AndersonOn October 10, 2024, AM/NS Calvert LLC (AM/NS), a steel production facility, pleaded guilty to violating the Clean Air Act (CAA) (42 U.S.C. § 7413(c)(2)(B)). In addition, the court also sentenced the company to pay a $750,000 fine and complete a three-year term of probation.AM/NS is a joint venture by ArcelorMittal and Nippon Steel operating in Calvert, Alabama. The company held a CAA permit issued by the Alabama Department of Environmental Management (ADEM), which required the treatment of certain air emissions for chlorine. In 2015, AM/NS determined it could not meet emissions limits using water and switched to a caustic solution with ADEM's approval.In early 2017, AM/NS went back to using water since the caustic solution was damaging the pipes, necessitating extensive repairs. In August 2017, the U.S. Environmental Protection Agency (EPA) and ADEM conducted a joint inspection of the AM/NS Calvert acid regeneration plant. During the inspection, they found that the facility was not using the caustic solution, violating the permit. Further investigation revealed the AM/NS Calvert acid regeneration plant had not used caustic solution for approximately 700 days over a two-year period.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.United States v. Wan Yee NgNo. 2:24-CR-00084 (District of Vermont)AUSA Thomas AlibertiECS Senior Counsel Elinor ColbournOn October 11, 2024, Chinese national Wan Yee Ng pleaded guilty to attempting to smuggle eastern box turtles, a protected species, from the United States to Canada (18 U.S.C. § 554). Sentencing is scheduled for December 13, 2024.U.S. Border Patrol agents began surveilling Ng during the spring of 2024, after she rented lodging from a facility near the Canadian border known for illegal smuggling activities.On June 26, 2024, agents observed Ng carrying a duffel bag as she prepared an inflatable kayak on the shore of Lake Wallace. The Royal Canadian Mounted Police notified those agents that two individuals (one believed to be Ng’s spouse) had launched an inflatable watercraft on the Canadian side of the lake and begun paddling southward, toward the United States. Before she could leave the shore, agents intercepted Ng and detained her for suspected smuggling activity.Agents found 29 turtles individually wrapped in socks inside her duffle bag. A U.S. Fish and Wildlife agent preliminarily identified them as eastern box turtles. The pet trade market, especially in China and Hong Kong, highly prizes turtles with colorful markings. These animals are protected by the Convention on International Trade in Endangered Species (CITES).The U.S. Border Patrol, Homeland Security Investigations, and the U.S. Fish and Wildlife Service conducted the investigation with assistance from the Royal Canadian Mounted Police.Related Press Release: District of Vermont | Woman Charged with Attempted Smuggling of Protected Turtles | United States Department of JusticeUnited States v. Robert G. GambillNo. 5:24-CR-00028 (Western District of North Carolina)AUSA Katherine T. ArmstrongOn October 11, 2024, Robert G. Gambill pleaded guilty to violating the Bald and Golden Eagle Protection Act for killing a bald eagle (16 U.S.C. § 668(a)).On June 5, 2024, Gambill shot and killed a bald eagle that was perched in a tree near a bridge in Sparta, North Carolina. After killing the eagle, Gambill drove away from the scene, abandoning the carcass on the bank of the New River. Two witnesses recovered the carcass and turned it over to the U.S. Fish and Wildlife Service (FWS). The U.S. FWS forensic laboratory determined that injuries suffered by the bald eagle were consistent with a gunshot wound from a high-powered rifle.The plea agreement requires Gambill to forfeit his Ruger M77 Mark 2 22-250 rifle and Nikon Monarch MR31 4x16-42 scope.The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation, with assistance from the North Carolina Wildlife Resources Commission and the Alleghany County Sheriff’s Office.United States v. Edwin FloresNo. 3:24-CR-00093 (Southern District of California)ECS Senior Trial Attorney Stephen DaPonteFormer AUSA Melanie PiersonOn October 17, 2024, Edwin Flores pleaded guilty to conspiracy and to failing to present merchandise for inspection by a customs officer (18 U.S.C. § 371). Sentencing is scheduled for January 9, 2025.On April 18, 2024, Flores drove a vehicle over the border from Mexico with three 30-pound cylinders of HCFC-22 that he failed to present for inspection.The U.S. Environmental Protection Agency Criminal Investigation Division, Homeland Security Investigations, and Customs and Border Protection conducted the investigation.United States v. Keidrick D. Usifo, et al.No. 24-CR-00040 (Eastern District of Arkansas)AUSA Edward WalkerOn October 22, 2024, Keidrick Damond Usifo and Deon Johnson pleaded guilty to violating the Big Cat Public Safety Act (BCPSA)(16 U.S.C. §§ 3372 (e)(1)(A), 3373 (d)).Lawmakers enacted the BCPSA in December 2022 to protect the public by prohibiting the private ownership of big cats, such as tigers and lions, as pets and by prohibiting exhibitors from allowing public contact with big cats, including tiger cubs. This law places new restrictions on the commerce, breeding, possession, and use of certain big cat species.In April 2023, a citizen tipped off local game authorities after seeing a tiger cub in a residential neighborhood in Conway, Arkansas. Further investigation confirmed that Usifo purchased a tiger in March 2023 from a broker in Dallas, Texas, and brought it back to his residence in Arkansas.After a second complaint was filed about the tiger cub, law enforcement conducted a traffic stop on April 21, 2023, arresting Usifo on a felony state warrant. The Conway Police Department then executed a search warrant at Usifo’s residence. The animal was not there, but they found evidence of its presence, including the fact that rooms in the house matched those in photos of the tiger that Usifo posted on Instagram.While in the Pulaski County Detention Facility (PCDF), Usifo made several calls to Johnson. Johnson fed the tiger for Usifo while he was held in detention. Johnson concealed his knowledge of the tiger when questioned by agents.The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation, with assistance from the Arkansas Game and Fish Commission, the Conway Police Department, and the Little Rock Police Department. Related Press Release: Eastern District of Arkansas | Defendants Plead Guilty To Violation of The Big Cat Public Safety Act | United States Department of Justice Case photo of tiger cub illegally purchased by defendant Usifo.United States v. Ryan Hugh Milliken, et al.No. 2:24-CR-00057 (Eastern District of Washington)AUSA Dan FruchterAUSA Jacob BrooksOn October 24, 2024, Ryan Hugh Milliken and his company, Hardaway Solutions, LLC (Hardaway), pleaded guilty to conspiracy to violate the Clean Air Act (18 U.S.C. § 371; 42 U.S.C. § 7413(c)(2)(C)). Sentencing is scheduled for January 22, 2025.Between August 2017 and November 2023, Milliken and Hardway created and sold illegal “delete tune” packages designed to disable and defeat required emissions controls and monitoring systems. Milliken and Hardway created and sold these delete tune files for various customers and vehicles, including numerous Spokane-based trucking companies. Pavel Ivanovich Turlak, and his companies--PT Express, LLC, Spokane Truck Service, LLC, and Pauls Trans, LLC--are scheduled for trial on January 27, 2025.Milliken created and sold custom software delete tunes to Turlak for vehicles based on specifications Turlak outlined. Turlak then charged as much as $3,500 to diesel truck owners to “delete” and “tune” their vehicles by tampering with their pollution monitoring devices. Turlak also fraudulently received more than $300,000 in federal funding designated for eligible small businesses during the pandemic. Charges against Turlak include wire fraud and false claims in connection with this fraud (18 U.S.C. §§ 1343, 287).The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation with assistance from the EPA National Enforcement Investigations Center, the Small Business Administration Office of Inspector General, and the Spokane Police Department.United States v. Benjamin GathercoleNo. 3:24-CR-00098 (Eastern District of Virginia)AUSA Heather Hart MansfieldRCEC David LastraOn October 30, 2024, Benjamin Gathercole pleaded guilty to violating the Resource Conservation and Recovery Act (RCRA) for illegally transporting hazardous waste without a manifest (42 U.S.C. § 6928(d)(5)).Gathercole lived in Tappahannock, Virginia, and worked at a brake manufacturing facility also located in Tappahannock. In 2019, a Virginia Department of Environmental Quality (DEQ) inspector determined that the brake manufacturing facility failed to make an accurate waste determination for 32 55-gallon drums stored on site. Some of the drums displayed labels noting they contained hazardous waste, but not in accordance with RCRA requirements. The DEQ issued the facility a notice of violation in May 2019.In September and October 2019, Gathercole removed and transported 31 of the 55-gallon drums from the facility to his residence. He dug a near his property and buried the drums in the ground, crushing some of them during the process, and spilling their contents into the ground.In December 2020, a citizen tipped the U.S. Environmental Protection Agency about the illegal burial. In November 2021, agents executed a search warrant on the defendant’s property. Gathercole admitted burying the drums at the request of his employer, directing authorities to the burial site. Further testing confirmed the defendant had buried ignitable hazardous waste. The EPA finished excavating the site in November 2022.The U.S. Environmental Protection Agency Criminal Investigation Division and EPA National Enforcement Investigation Center conducted the investigation.SentencingsUnited States v. Michael MacartneyNo. 2:24-CR-00025 (Eastern District of Virginia)AUSA Elizabeth YusiOn October 1, 2024, a court sentenced Michael Macartney to 40 months’ incarceration, followed by three years’ supervised release, after pleading guilty to conspiracy to create and distribute animal crush videos (18 U.S.C. §§ 371, 48(a)(2),(a)(3)).Between November 2021 and August 2022, Macartney and co-conspirators administered a private online chat group, and participated on other private online chat groups, that used encrypted messaging to fund, view, and distribute videos depicting, among other things, the torture, murder, and sexually sadistic mutilation of animals, specifically, juvenile and adult monkeys. Macartney received more than 300 electronic payments related to this activity.In March 2022, Macartney agreed to sell copies of all his animal crush videos to a co-conspirator for $100. The co-conspirator sent Macartney $75 electronically and Macartney sent the co-conspirator website links to his stored videos. Macartney stated there were just under 2,300 videos.Homeland Security Investigations conducted the investigation.United States v. Raymond Anthony Rabago Montoya, et al.No. 2:23-CR-01305 (District of Arizona)AUSA Lisa JennisAUSA Stuart ZanderOn October 2, 2024, Raymond Anthony Rabago Montoya was sentenced to 12 months and one day in prison, followed by three years of supervised release, for his role in a conspiracy to traffic in protected wildlife. In addition, he was ordered to pay $3,000 to the Cooperative Endangered Species Conservation Fund. This sentence follows a previous conviction for his mother, Griselda Guadalupe Montoya-Gastelum, who received an 18-month prison sentence, also with three years of supervised release. Both defendants pleaded guilty to conspiring to violate the Lacey Act for trafficking in protected wildlife (18 U.S.C. § 371; 16 U.S.C. §§ 3372(a)(1), 3373(d)(1)B)).The U.S. Fish and Wildlife Service began investigating the defendants in August 2022 after receiving a report from a person who purchased four exotic parrots and believed Rabago Montoya had illegally imported the birds. Further investigation determined that the defendants illegally imported exotic and protected wildlife, including tigers, panthers, monkeys, and parrots, from Mexico into the United States.In January 2023, agents executed a search warrant at Carlos Castro’s home, where they found a tiger cub, an alligator, 12 snapping turtles, six tortoises, and boxes of other reptiles. Snapchat messages revealed that Montoya-Gastelum and Castro discussed illegal exotic animal sales and trades. A court in Maricopa County subsequently convicted Castro of Unlawful Sale of Wildlife in the Arizona Superior Court.In April and May of 2023, federal agents received information about spider monkeys being sold on Facebook. They arranged two undercover purchases of the monkeys from the defendants, paying $6,000 each. In June and August 2023, agents arrested Rabago Montoya with dozens of endangered parrots concealed in his vehicle, many of them deceased.The U.S. Fish and Wildlife Service; Homeland Security Investigations; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Border Patrol, and the Pinal County Sheriff’s Office conducted the investigation. Related Press Release: District of Arizona | Mother and Son Sentenced for Illegally Importing Endangered Wildlife | United States Department of Justice Case photo of spider monkey smuggled by defendants.United States v. Ronald P. BedraNo. 2:24-CR-00048 (Southern District of Ohio)ECS Trial Attorney Mark RomleyECS Senior Trial Attorney Adam CullmanAUSA Nicole PakizOn October 10, 2024, a court sentenced Ronald Bedra to 54 months’ incarceration, followed by three years’ supervised release. Bedra pleaded guilty to conspiracy and to violating the Animal Crush statute for collaborating with others to create and distribute videos depicting acts of extreme violence and abuse against monkeys (18 U.S.C. §§ 371, 48(a)(3)).The conspirators used encrypted chat apps to direct money to individuals in Indonesia willing to commit the requested acts of torture on camera. Bedra also mailed a thumb drive containing 64 videos of monkey torture to a co-conspirator in Wisconsin.The U.S. Fish and Wildlife Service Office of Law Enforcement and the Federal Bureau of Investigation conducted the investigation. United States v. Brian Tibbets, et al.Nos. 4:21-CR-00218, 4:22-CR-00282 (District of Idaho)ECS Senior Trial Attorney Cassie BarnumAUSA Francis ZebariECS Law Clerk Amanda BackerOn October 22, 2024, a court sentenced Brian Tibbets to pay a $40,000 fine and complete a five-year term of probation, to include six months’ home confinement. Tibbetts also will perform 1,000 hours of community service. Tibbets pleaded guilty to obstructing a pending proceeding related to a demolition project (18 U.S.C. § 1505). Co-defendant Brek Pilling was sentenced in August 2024 to pay a $100,000 fine, and complete a five-year term of probation, to include three months of home confinement. He also will perform 100 hours of community service. Pilling pleaded guilty to a Clean Air Act negligent endangerment count (42 U.S.C. § 7413).In late 2017, Pilling and Tibbets purchased two buildings in Burley, Idaho, planning to demolish them and build a parking lot. During a walkthrough with city officials, the building inspector pointed out likely asbestos-containing material (ACM). In further communications with the city, other city employees warned the owners about the presence of ACM requiring remediation. The owners took “samples” from the buildings that included wood, brick, and stone (but no building materials that could plausibly be composed of ACM) and submitted those to a forensic lab for analysis.In January 2018, both buildings caught fire under suspicious circumstances. After seeing the fire on the news, a local contractor contacted the defendants and offered to demolish what remained of the buildings using his own asbestos inspector and remediation company. The owners accepted the contractor’s bid but said they would hire their own remediation company. Two days later, the contractor saw the buildings under demolition. The defendants chose to hire an individual to knock them down without conducting any asbestos abatement. During the demolition, individuals hauled several truckloads of debris to a nearby landfill. The owners also lied to an inspector during a subsequent conversation about onsite testing.The National Enforcement Investigation Center analyzed samples taken from the sites and found multiple areas with ACM. Officials ultimately removed approximately 860 tons of asbestos-contaminated demolition debris from the site, at a cost of approximately $845,000.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.United States v. Kyle Potter, et al.No. 3:24-CR-00047 (District of Alaska)AUSA Seth BrickeyOn October 22, 2024, a court sentenced Kyle Potter to pay a $20,000 fine and complete a five-year term of probation. Co-defendant Justin Welch was sentenced on October 1, 2024, to pay a $10,000 fine and complete a three-year term of probation. A restitution hearing is scheduled for December 10, 2024. Potter and Welch pleaded guilty to violating the Lacey Act for their roles in illegally transporting crab from Alaska (16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B)). Corey Potter is set for a status conference on December 11, 2024.Corey Potter owns two crab catching vessels; Kyle Potter and Welch worked as vessel captains. In February and March 2024, the vessels harvested more than 7,000 pounds of Tanner and Golden king crab in Southeast Alaska. Corey Potter directed Welch and Kyle Potter to take the crab to Seattle, Washington, where they intended to sell it at a higher price than they would have in Alaska. Neither captain landed the harvested crab at a port in Alaska, and they never recorded the harvest on a fish ticket, as required under state law.A large portion of the king crab that arrived in Seattle from Alaska had died and was unmarketable. Corey Potter knew that some of the crab aboard was infected with Bitter Crab Syndrome (BCS), a parasitic disease fatal to crustaceans. Officials were forced to destroy more than 4,000 additional pounds of Tanner crab due to the risk of BCS infection. If the defendants had properly landed the crab in Alaska, authorities could have inspected the harvest and removed the infected crab before leaving Alaska.The National Oceanic and Atmospheric Administration Office of Law Enforcement conducted the investigation.United States v. Ramiro Hernandez Tziquin, et al.No. 8:23-CR-00058 (District of Nebraska)AUSA Donald KleineAUSA Kimberly BunjerOn October 23, 2024, a court sentenced Ramiro Hernandez Tziquin, a Guatemalan citizen, to time-served for violating the Bald and Golden Eagle Protection Act (16 U.S.C. § 668(a)). Tziquin has been in custody since June 6, 2024. Hernandez Tziquin is subject to removal proceedings with United States Immigration and Customs Enforcement. Co-defendant Domingo Zetino Hernandez was sentenced in November 2023 to time served.On February 28, 2023, law enforcement received a report of a suspicious vehicle located at the Wood Duck Wildlife Management Area, located in Stanton County, Nebraska. They found the vehicle and questioned the defendants. Zetino Hernandez admitted that he shot a bird and that it was in the trunk of Hernandez Tziquin’s vehicle. Law enforcement confirmed that the carcass was indeed that of a bald eagle.The U.S. Fish and Wildlife Service Office of Law Enforcement, Nebraska Games and Parks Commission, and the Stanton County Sheriff’s Office, conducted the investigation.United States v. Envigo RMS, LLC, et al.No. 6:24-CR-00016 (Western District of Virginia)ECS Senior Trial Attorney Banu RangarajanECS Trial Attorney Sarah BrownECS Paralegal Jillian GrubbAUSA Randy RamseyerAUSA Corey HallAUSA Carrie MaconSAUSA Michelle WelchOn October 24, 2024, a court sentenced Envigo RMS, LLC, and Envigo Global Services, Inc. to pay a total criminal fine of $22 million. Envigo RMS pleaded guilty to conspiring to knowingly violate the Animal Welfare Act (AWA), and Envigo Global Services pleaded guilty to conspiring to knowingly violate the Clean Water Act (CWA) (18 U.S.C. § 371; 33 U.S.C. §§ 1311, 1319(c)(2)(A), 7 U.S.C. § 2149(d)). This case is related to the breeding, export, and sale of dogs for medical and scientific research purposes from a dog breeding facility located in Cumberland County, Virginia. In May 2022, officials rescued more than 4,000 beagles from the premises.As part of the resolution, Inotiv, the parent corporation of Envigo RMS and Envigo Global Services, will guarantee more than $35 million in payments, is subject to increased animal care standards, and engage a compliance monitor. This resolution marks the largest agreed-to fine in an AWA case.Envigo RMS violated the AWA by failing to provide, among other things, adequate veterinary care, adequate staffing, and safe living conditions for dogs housed at the Cumberland County facility. In addition, Envigo Global Services violated the CWA by failing to properly operate and maintain the wastewater treatment plant, leading to massive unlawful discharges of insufficiently treated wastewater into a local waterway. This failure also impacted the health and well-being of the dogs at the facility.In addition to the $22 million fine, the entities will pay approximately $1.1 million to the Virginia Animal Fighting Task Force and approximately $1.9 million to the Humane Society of the United States for direct assistance provided to the investigation. The defendants also will complete five-year terms of probation.The defendants will pay an additional $3.5 million to the National Fish and Wildlife Foundation to benefit and restore the environment and ecosystems in Cumberland County, with approximately $500,000 dedicated to purchasing riparian wetland or riparian land located in or near Cumberland. They also will spend $7 million to improve their facilities and train personnel over and above the minimum standards required by the AWA.The U.S. Department of Agriculture Office of Inspector General and the U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation, with assistance from the Virginia State Police.Related Press Release: Western District of Virginia | Animal Breeder Sentenced in Animal Welfare and Water Pollution Crimes, Will Pay More than $35M, Including Record Fine in Animal Welfare Case | United States Department of Justice Case photo of beagles rescued from the facility.United States v. AMVAC Chemical Corporation, et al.Nos. 1:24-CR-00043, 1:22-CR-00060 (Southern District of Alabama)ECS Senior Counsel Kris DigheAUSA Michael AndersonRCEC Jennifer LewisECS Paralegal Chloe HarrisOn October 25, 2024, a court sentenced AMVAC Chemical Corporation (AMVAC) to pay a $400,000 fine and to complete a three-year term of probation. The corporation pleaded guilty to violating the Resource Conservation and Recovery Act (RCRA) for transporting hazardous waste without a hazardous waste manifest (42 U.S.C. § 6928(d)(5)).AMVAC is a pesticide manufacturer that produced a pesticide called “Thimet” in Alabama and exported it to Canada, Australia, and other countries. Thimet is an organophosphate insecticide used to control crop pests by absorption into the crops themselves. In 2013, authorities determined that AMVAC was importing tens of thousands of used containers of Thimet through Savannah, Georgia; Port Huron, Michigan; Boston, Massachusetts; and Los Angeles, California. Some of the containers were nearly empty, while others were partially full. The containers were designed to attach directly to farming equipment and then be returned to AMVAC when emptied.The containers were not labeled as containing hazardous waste but as containing product (pesticide) for reformulation. However, the Environmental Protection Agency did not authorized AMVAC to reformulate Thimet. The active ingredient in Thimet is “phorate,” a RCRA acute hazardous waste. AMVAC is a large quantity generator of hazardous waste, with specific, known responsibilities under RCRA. AMVAC subsequently told EPA that the pesticide in the containers was imported for disposal. AMVAC failed to use hazardous manifests to transport the containers of waste Thimet to its Alabama facility.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. Case photo of Thimet pesticideUnited States v. Gremex Shipping S.A. de C.V.No. 3:24-CR-00101 (Northern District of Florida)Former ECS Senior Trial Attorney Joel LaBissonniereECS Paralegal Jonah FruchtmanECS Law Clerk Saskia SanchezOn October 25, 2024, a court sentenced Gremex Shipping S.A. de C.V. (Gremex) to pay a $1.75 million fine, serve a four-year term of probation, and implement an environmental compliance plan. The shipping corporation pleaded guilty to violating the Act to Prevent Pollution from Ships (APPS) for failing to maintain an accurate oil record book (ORB) (33 U.S.C. § 1908(a)).Gremex is a Mexican corporation that managed several ships including the M/V Suhar. The Suhar is a 7,602 gross ton Panamanian-flagged ocean-going bulk carrier that routinely hauled cement from Tampico, Mexico, to Pensacola, Florida. Gremex was responsible for the Suhar’s day-to-day operations, including hiring all crew, and ensuring compliance with all environmental and international regulations.The Coast Guard inspected the ship when it arrived in Pensacola on August 25, 2023. Inspectors determined that the vessel’s crew regularly discharged untreated oily bilge water overboard, bypassing onboard pollution control equipment, and falsified the ship’s ORB to conceal these discharges.The U.S. Coast Guard Investigative Service conducted the investigation.Related Press Release: Office of Public Affairs | Ship Management Company Fined $1.75M for Failing to Maintain an Accurate Oil Record Book that Concealed Unauthorized Discharges at Sea | United States Department of JusticeUnited States v. Travis J. Branson, et al.No. 9:23-CR-00055 (District of Montana)AUSA Randy TannerAUSA Ryan WeldonOn October 31, 2024, a court sentenced Travis J. Branson to 46 months’ incarceration, followed by 36 months of supervised release. Branson also was ordered to pay $777,250 in restitution into the Lacey Act Reward Fund. Branson pleaded guilty to conspiracy and violations of the Bald and Golden Eagle Protection Act and the Lacey Act. Branson and co-defendant Simon Paul (a fugitive) unlawfully killed bald and golden eagles on the Flathead Indian Reservation and elsewhere in Montana, Idaho, and Nevada, and sold them on the black market (18 U.S.C. § 371; 16 U.S.C. §§ 668(a); 3372(a)(1), 3373(d)(1)(B)).Between January 2015 and March 2021, the defendants conspired to illegally kill bald and golden eagles on the Reservation and offer eagle feathers and parts for sale to domestic U.S. and international buyers. Branson traveled from Washington to the Reservation and arranged for Paul to shoot and ship the eagles for him. Confederated Salish & Kootenai tribal authorities tipped off Fish and Wildlife agents to the defendants’ activity.In total, Paul and Branson killed approximately 3,600 birds, including eagles. They then sold eagle feathers and parts on the black market for significant sums of money across the United States and elsewhere. Officials estimated that between 2009 and 2021, Branson made between $180,000 and $360,000 by selling eagles feathers and parts on the black market.The U.S. Fish and Wildlife Service and Confederated Salish and Kootenai Tribes’ Fish and Game Department conducted the investigation.Related Press Release: District of Montana | Washington man sentenced to nearly four years in federal prison for trafficking eagles, hawks killed on the Flathead Indian Reservation and sold on black market | United States Department of Justice Case photo of eagle claws illegal sold by defendants.View All Environmental Crimes Bulletins
#> 5 View All Environmental Crimes BulletinsIn This Issue:Cases by District/CircuitIndictmentsGuilty PleasSentencingsCases by District/CircuitDistrict/CircuitCase NameStatute(s)Southern District of AlabamaUnited States v. AM/NS Calvert LLCSteel Production Emissions/ Clean Air ActUnited States v. AMVAC Chemical Corporation, et al.Pesticide Manufacturer/ Resource Conservation and Recovery ActDistrict of AlaskaUnited States v. Kyle Potter, et al.Crab Harvesting/Lacey ActDistrict of ArizonaUnited States v. Raymond Anthony Rabago Montoya, et al.Wildlife Trafficking/ Conspiracy, Lacey ActEastern District of ArkansasUnited States v. Keidrick D. Usifo, et al.Tiger Cub Possession/Big Cat Safety ActWestern District of ArkansasUnited States v. Redemption Repairs & PerformanceEmissions Tampering/ Clean Air ActSouthern District of CaliforniaUnited States v. Edwin FloresGreenhouse Gas Imports/ ConspiracyNorthern District of FloridaUnited States v. Gremex Shipping S.A. de C.V.Vessel/Act to Prevent Pollution from ShipsDistrict of IdahoUnited States v. Brian Tibbets, et al.Asbestos Remediation/Clean Air Act, ObstructionEastern District of MissouriUnited States v. Visionary Bowling Products, et al.Hazardous Waste Storage/ Resource Conservation and Recovery ActDistrict of MontanaUnited States v. Travis J. Branson, et al.Eagle Part Sales/ Bald and Golden Eagle Protection ActDistrict of NebraskaUnited States v. Ramiro Hernandez Tziquin, et al.Eagle Killing/Bald and Golden Eagle Protection ActWestern District of North CarolinaUnited States v. Robert G. GambillBald Eagle Killing/ Bald and Golden Eagle Protection ActSouthern District of OhioUnited States v. Ronald P. BedraAnimal Videos/Animal Crush, ConspiracyMiddle District of PennsylvaniaUnited States v. Frock Brothers Trucking, Inc., et al.Emissions Tampering/Conspiracy, Clean Air ActDistrict of Rhode IslandUnited States v. Jose V. FernandezAsbestos Training Certification/ False StatementSouthern District of TexasUnited States v. Andres Alejandro SanchezWildlife Trafficking/ Conspiracy, Lacey Act, SmugglingDistrict of VermontUnited States v. Wan Yee NgTurtle Smuggling/SmugglingEastern District of VirginiaUnited States v. Michael MacartneyAnimal videos/Animal Crush, ConspiracyUnited States v. Benjamin GathercoleHazardous Waste Transportation/ Resource Conservation and Recovery ActWestern District of VirginiaUnited States v. Envigo RMS, LLC, et al.Dog Breeding Facility/ Animal Welfare Act, Clean Water Act, ConspiracyEastern District of WashingtonUnited States v. Ryan Hugh Milliken, et al.Emissions Tampering/Clean Air Act, False Claims, Wire Fraud IndictmentsUnited States v. Visionary Bowling Products, et al.No. 4:24-CR-00418 (Eastern District of Missouri)AUSA Dianna CollinsOn October 2, 2024, prosecutors charged Visionary Bowling Products (VBP), and company owners, John Wonders, Sr., and Jason Wonders, with violating the Resource Conservation and Recovery Act (RCRA) for illegally storing hazardous waste (42 U.S.C. § 6928(d)(2)(A)).VBP operated a 60,000 square-foot factory, which it used to manufacture bowling balls for approximately 20 years before ceasing operations in July 2019.When the defendants abandoned the property in October 2019, they left behind a variety of chemicals and industrial materials. On October 21, 2021, a fire ignited and burned for approximately 12 hours, requiring multiple fire departments to respond. Officials ordered the evacuation of nearby homes and businesses due to the potential hazard posed by the burning chemicals. The following day, a smaller fire rekindled but was quickly extinguished.Local environmental officials later discovered hundreds of discarded and abandoned containers at the facility in various stages of deterioration. Testing by federal environmental officials confirmed that the defendants had illegally stored hazardous waste at the site.The U.S. Environmental Protection Agency Criminal Investigation Division and Missouri Department of Natural Resources conducted the investigation. Case photo of bowling ball facility following a fire.United States v. Andres Alejandro SanchezNo. 24-CR-1264 (Southern District of Texas)AUSA Tory SailerAssistance from ECS Senior Counsel Elinor ColbournOn October 29, 2024, prosecutors charged Andres Alejandro Sanchez with smuggling, conspiracy, and violating the Lacey Act for smuggling spider monkeys into the United States (18 U.S.C. §§ 371, 545; 16 U. S.C. §§ 3372(a)(1), 3373(d)(2)).On October 7, 2024, Sanchez travelled from Mexico to Laredo, Texas, and failed to declare a spider monkey he had in his vehicle to Customs and Border Patrol officers as he attempted to cross the border.The U.S. Customs and Border Control, Homeland Security Investigations, and U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation. Guilty PleasUnited States v. Frock Brothers Trucking, Inc., et al.No. 1:24-CR-00250 (Middle District of Pennsylvania)AUSA William BeheOn October 1, 2024, Frock Brothers Trucking, Inc. (Frock), pleaded guilty to conspiracy and violating the Clean Air Act (CAA) for tampering with the emission control systems of several of their heavy-duty fleet trucks. The company admitted to disabling emission controls in violation of the CAA (18 U.S.C. § 371 and 42 U.S.C. § 7413(c)(2)(C)). The company is set for sentencing on January 9, 2025.Frock, a long-distance trucking company based in New Oxford, Pennsylvania, transports a variety of goods, including snack foods, refrigerated items, and produce. Ed Frock owned the company until his death in August 2022.Between November 13, 2018, and December 28, 2018, Frock contracted with co-defendant Leon Martin, a mechanic who operated out of his home, to disable and/or remove emission control components from eight of their diesel trucks. Martin also tampered with the required onboard diagnostic equipment (OBD) to delete factory-installed emission controls from Frock's heavy duty diesel trucks. Martin's tunes enabled those deleted trucks to operate without emission control devices as required by federal law.Martin pleaded guilty to violating the Clean Air Act. He is scheduled for sentencing on January 7, 2025.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. United States v. Jose V. FernandezNo. 1:24-CR-00071 (District of Rhode Island)AUSA John McAdamsOn October 2, 2024, Jose V. Fernandez pleaded guilty to making false statements for distributing false asbestos abatement training certifications (18 U.S.C. § 1001 (a)(3)). Sentencing is scheduled for January 7, 2025.Fernandez owned the Rhode Island Safety Environment Training Center (RISE). The Rhode Island Department of Health (RIDH) accredited the facility to provide asbestos abatement training. On multiple occasions between 2021 and 2023, Fernandez submitted false documentation to the RIDH attesting that nearly two dozen individuals paid for, attended, and successfully completed an Environmental Protection Agency-approved abatement training program when, in fact, no one attended any classes.The U.S. Environmental Protection Agency Criminal Investigation Division and the Rhode Island Department of Health conducted the investigation.United States v. Redemption Repairs & PerformanceNo. 4:24-CR-40016 (Western District of Arkansas)AUSA Sydney StanleyOn October 2, 2024, Redemption Repairs & Performance (RRP) pleaded guilty to violating the Clean Air Act (CAA) for modifying and deleting the emissions control systems of diesel engines and tampering with and rendering inaccurate the vehicles’ onboard diagnostic systems (OBD) (42 U.S.C § 7413(c)(2)(C)).RRP is a truck repair shop specializing in diesel engine repairs and performance located in Texarkana, Arkansas. Between May 2020 and October 2022, the company falsified, tampered with, and rendered inaccurate monitoring devices required to be maintained and followed under the CAA. After removing or altering the emission control equipment on diesel trucks, RRP modified the diesel trucks’ OBD systems to prevent detection of the removal and disabling of the equipment. The company performed this service on close to 50 vehicles, charging between $2,600-$2,700 per truck.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. United States v. AM/NS Calvert LLCNo. 1:24-CR-00117 (Southern District of Alabama)ECS Senior Counsel Kris DigheAUSA Mike AndersonOn October 10, 2024, AM/NS Calvert LLC (AM/NS), a steel production facility, pleaded guilty to violating the Clean Air Act (CAA) (42 U.S.C. § 7413(c)(2)(B)). In addition, the court also sentenced the company to pay a $750,000 fine and complete a three-year term of probation.AM/NS is a joint venture by ArcelorMittal and Nippon Steel operating in Calvert, Alabama. The company held a CAA permit issued by the Alabama Department of Environmental Management (ADEM), which required the treatment of certain air emissions for chlorine. In 2015, AM/NS determined it could not meet emissions limits using water and switched to a caustic solution with ADEM's approval.In early 2017, AM/NS went back to using water since the caustic solution was damaging the pipes, necessitating extensive repairs. In August 2017, the U.S. Environmental Protection Agency (EPA) and ADEM conducted a joint inspection of the AM/NS Calvert acid regeneration plant. During the inspection, they found that the facility was not using the caustic solution, violating the permit. Further investigation revealed the AM/NS Calvert acid regeneration plant had not used caustic solution for approximately 700 days over a two-year period.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.United States v. Wan Yee NgNo. 2:24-CR-00084 (District of Vermont)AUSA Thomas AlibertiECS Senior Counsel Elinor ColbournOn October 11, 2024, Chinese national Wan Yee Ng pleaded guilty to attempting to smuggle eastern box turtles, a protected species, from the United States to Canada (18 U.S.C. § 554). Sentencing is scheduled for December 13, 2024.U.S. Border Patrol agents began surveilling Ng during the spring of 2024, after she rented lodging from a facility near the Canadian border known for illegal smuggling activities.On June 26, 2024, agents observed Ng carrying a duffel bag as she prepared an inflatable kayak on the shore of Lake Wallace. The Royal Canadian Mounted Police notified those agents that two individuals (one believed to be Ng’s spouse) had launched an inflatable watercraft on the Canadian side of the lake and begun paddling southward, toward the United States. Before she could leave the shore, agents intercepted Ng and detained her for suspected smuggling activity.Agents found 29 turtles individually wrapped in socks inside her duffle bag. A U.S. Fish and Wildlife agent preliminarily identified them as eastern box turtles. The pet trade market, especially in China and Hong Kong, highly prizes turtles with colorful markings. These animals are protected by the Convention on International Trade in Endangered Species (CITES).The U.S. Border Patrol, Homeland Security Investigations, and the U.S. Fish and Wildlife Service conducted the investigation with assistance from the Royal Canadian Mounted Police.Related Press Release: District of Vermont | Woman Charged with Attempted Smuggling of Protected Turtles | United States Department of JusticeUnited States v. Robert G. GambillNo. 5:24-CR-00028 (Western District of North Carolina)AUSA Katherine T. ArmstrongOn October 11, 2024, Robert G. Gambill pleaded guilty to violating the Bald and Golden Eagle Protection Act for killing a bald eagle (16 U.S.C. § 668(a)).On June 5, 2024, Gambill shot and killed a bald eagle that was perched in a tree near a bridge in Sparta, North Carolina. After killing the eagle, Gambill drove away from the scene, abandoning the carcass on the bank of the New River. Two witnesses recovered the carcass and turned it over to the U.S. Fish and Wildlife Service (FWS). The U.S. FWS forensic laboratory determined that injuries suffered by the bald eagle were consistent with a gunshot wound from a high-powered rifle.The plea agreement requires Gambill to forfeit his Ruger M77 Mark 2 22-250 rifle and Nikon Monarch MR31 4x16-42 scope.The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation, with assistance from the North Carolina Wildlife Resources Commission and the Alleghany County Sheriff’s Office.United States v. Edwin FloresNo. 3:24-CR-00093 (Southern District of California)ECS Senior Trial Attorney Stephen DaPonteFormer AUSA Melanie PiersonOn October 17, 2024, Edwin Flores pleaded guilty to conspiracy and to failing to present merchandise for inspection by a customs officer (18 U.S.C. § 371). Sentencing is scheduled for January 9, 2025.On April 18, 2024, Flores drove a vehicle over the border from Mexico with three 30-pound cylinders of HCFC-22 that he failed to present for inspection.The U.S. Environmental Protection Agency Criminal Investigation Division, Homeland Security Investigations, and Customs and Border Protection conducted the investigation.United States v. Keidrick D. Usifo, et al.No. 24-CR-00040 (Eastern District of Arkansas)AUSA Edward WalkerOn October 22, 2024, Keidrick Damond Usifo and Deon Johnson pleaded guilty to violating the Big Cat Public Safety Act (BCPSA)(16 U.S.C. §§ 3372 (e)(1)(A), 3373 (d)).Lawmakers enacted the BCPSA in December 2022 to protect the public by prohibiting the private ownership of big cats, such as tigers and lions, as pets and by prohibiting exhibitors from allowing public contact with big cats, including tiger cubs. This law places new restrictions on the commerce, breeding, possession, and use of certain big cat species.In April 2023, a citizen tipped off local game authorities after seeing a tiger cub in a residential neighborhood in Conway, Arkansas. Further investigation confirmed that Usifo purchased a tiger in March 2023 from a broker in Dallas, Texas, and brought it back to his residence in Arkansas.After a second complaint was filed about the tiger cub, law enforcement conducted a traffic stop on April 21, 2023, arresting Usifo on a felony state warrant. The Conway Police Department then executed a search warrant at Usifo’s residence. The animal was not there, but they found evidence of its presence, including the fact that rooms in the house matched those in photos of the tiger that Usifo posted on Instagram.While in the Pulaski County Detention Facility (PCDF), Usifo made several calls to Johnson. Johnson fed the tiger for Usifo while he was held in detention. Johnson concealed his knowledge of the tiger when questioned by agents.The U.S. Fish and Wildlife Service Office of Law Enforcement conducted the investigation, with assistance from the Arkansas Game and Fish Commission, the Conway Police Department, and the Little Rock Police Department. Related Press Release: Eastern District of Arkansas | Defendants Plead Guilty To Violation of The Big Cat Public Safety Act | United States Department of Justice Case photo of tiger cub illegally purchased by defendant Usifo.United States v. Ryan Hugh Milliken, et al.No. 2:24-CR-00057 (Eastern District of Washington)AUSA Dan FruchterAUSA Jacob BrooksOn October 24, 2024, Ryan Hugh Milliken and his company, Hardaway Solutions, LLC (Hardaway), pleaded guilty to conspiracy to violate the Clean Air Act (18 U.S.C. § 371; 42 U.S.C. § 7413(c)(2)(C)). Sentencing is scheduled for January 22, 2025.Between August 2017 and November 2023, Milliken and Hardway created and sold illegal “delete tune” packages designed to disable and defeat required emissions controls and monitoring systems. Milliken and Hardway created and sold these delete tune files for various customers and vehicles, including numerous Spokane-based trucking companies. Pavel Ivanovich Turlak, and his companies--PT Express, LLC, Spokane Truck Service, LLC, and Pauls Trans, LLC--are scheduled for trial on January 27, 2025.Milliken created and sold custom software delete tunes to Turlak for vehicles based on specifications Turlak outlined. Turlak then charged as much as $3,500 to diesel truck owners to “delete” and “tune” their vehicles by tampering with their pollution monitoring devices. Turlak also fraudulently received more than $300,000 in federal funding designated for eligible small businesses during the pandemic. Charges against Turlak include wire fraud and false claims in connection with this fraud (18 U.S.C. §§ 1343, 287).The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation with assistance from the EPA National Enforcement Investigations Center, the Small Business Administration Office of Inspector General, and the Spokane Police Department.United States v. Benjamin GathercoleNo. 3:24-CR-00098 (Eastern District of Virginia)AUSA Heather Hart MansfieldRCEC David LastraOn October 30, 2024, Benjamin Gathercole pleaded guilty to violating the Resource Conservation and Recovery Act (RCRA) for illegally transporting hazardous waste without a manifest (42 U.S.C. § 6928(d)(5)).Gathercole lived in Tappahannock, Virginia, and worked at a brake manufacturing facility also located in Tappahannock. In 2019, a Virginia Department of Environmental Quality (DEQ) inspector determined that the brake manufacturing facility failed to make an accurate waste determination for 32 55-gallon drums stored on site. Some of the drums displayed labels noting they contained hazardous waste, but not in accordance with RCRA requirements. The DEQ issued the facility a notice of violation in May 2019.In September and October 2019, Gathercole removed and transported 31 of the 55-gallon drums from the facility to his residence. He dug a near his property and buried the drums in the ground, crushing some of them during the process, and spilling their contents into the ground.In December 2020, a citizen tipped the U.S. Environmental Protection Agency about the illegal burial. In November 2021, agents executed a search warrant on the defendant’s property. Gathercole admitted burying the drums at the request of his employer, directing authorities to the burial site. Further testing confirmed the defendant had buried ignitable hazardous waste. The EPA finished excavating the site in November 2022.The U.S. Environmental Protection Agency Criminal Investigation Division and EPA National Enforcement Investigation Center conducted the investigation.SentencingsUnited States v. Michael MacartneyNo. 2:24-CR-00025 (Eastern District of Virginia)AUSA Elizabeth YusiOn October 1, 2024, a court sentenced Michael Macartney to 40 months’ incarceration, followed by three years’ supervised release, after pleading guilty to conspiracy to create and distribute animal crush videos (18 U.S.C. §§ 371, 48(a)(2),(a)(3)).Between November 2021 and August 2022, Macartney and co-conspirators administered a private online chat group, and participated on other private online chat groups, that used encrypted messaging to fund, view, and distribute videos depicting, among other things, the torture, murder, and sexually sadistic mutilation of animals, specifically, juvenile and adult monkeys. Macartney received more than 300 electronic payments related to this activity.In March 2022, Macartney agreed to sell copies of all his animal crush videos to a co-conspirator for $100. The co-conspirator sent Macartney $75 electronically and Macartney sent the co-conspirator website links to his stored videos. Macartney stated there were just under 2,300 videos.Homeland Security Investigations conducted the investigation.United States v. Raymond Anthony Rabago Montoya, et al.No. 2:23-CR-01305 (District of Arizona)AUSA Lisa JennisAUSA Stuart ZanderOn October 2, 2024, Raymond Anthony Rabago Montoya was sentenced to 12 months and one day in prison, followed by three years of supervised release, for his role in a conspiracy to traffic in protected wildlife. In addition, he was ordered to pay $3,000 to the Cooperative Endangered Species Conservation Fund. This sentence follows a previous conviction for his mother, Griselda Guadalupe Montoya-Gastelum, who received an 18-month prison sentence, also with three years of supervised release. Both defendants pleaded guilty to conspiring to violate the Lacey Act for trafficking in protected wildlife (18 U.S.C. § 371; 16 U.S.C. §§ 3372(a)(1), 3373(d)(1)B)).The U.S. Fish and Wildlife Service began investigating the defendants in August 2022 after receiving a report from a person who purchased four exotic parrots and believed Rabago Montoya had illegally imported the birds. Further investigation determined that the defendants illegally imported exotic and protected wildlife, including tigers, panthers, monkeys, and parrots, from Mexico into the United States.In January 2023, agents executed a search warrant at Carlos Castro’s home, where they found a tiger cub, an alligator, 12 snapping turtles, six tortoises, and boxes of other reptiles. Snapchat messages revealed that Montoya-Gastelum and Castro discussed illegal exotic animal sales and trades. A court in Maricopa County subsequently convicted Castro of Unlawful Sale of Wildlife in the Arizona Superior Court.In April and May of 2023, federal agents received information about spider monkeys being sold on Facebook. They arranged two undercover purchases of the monkeys from the defendants, paying $6,000 each. In June and August 2023, agents arrested Rabago Montoya with dozens of endangered parrots concealed in his vehicle, many of them deceased.The U.S. Fish and Wildlife Service; Homeland Security Investigations; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the U.S. Border Patrol, and the Pinal County Sheriff’s Office conducted the investigation. Related Press Release: District of Arizona | Mother and Son Sentenced for Illegally Importing Endangered Wildlife | United States Department of Justice Case photo of spider monkey smuggled by defendants.United States v. Ronald P. BedraNo. 2:24-CR-00048 (Southern District of Ohio)ECS Trial Attorney Mark RomleyECS Senior Trial Attorney Adam CullmanAUSA Nicole PakizOn October 10, 2024, a court sentenced Ronald Bedra to 54 months’ incarceration, followed by three years’ supervised release. Bedra pleaded guilty to conspiracy and to violating the Animal Crush statute for collaborating with others to create and distribute videos depicting acts of extreme violence and abuse against monkeys (18 U.S.C. §§ 371, 48(a)(3)).The conspirators used encrypted chat apps to direct money to individuals in Indonesia willing to commit the requested acts of torture on camera. Bedra also mailed a thumb drive containing 64 videos of monkey torture to a co-conspirator in Wisconsin.The U.S. Fish and Wildlife Service Office of Law Enforcement and the Federal Bureau of Investigation conducted the investigation. United States v. Brian Tibbets, et al.Nos. 4:21-CR-00218, 4:22-CR-00282 (District of Idaho)ECS Senior Trial Attorney Cassie BarnumAUSA Francis ZebariECS Law Clerk Amanda BackerOn October 22, 2024, a court sentenced Brian Tibbets to pay a $40,000 fine and complete a five-year term of probation, to include six months’ home confinement. Tibbetts also will perform 1,000 hours of community service. Tibbets pleaded guilty to obstructing a pending proceeding related to a demolition project (18 U.S.C. § 1505). Co-defendant Brek Pilling was sentenced in August 2024 to pay a $100,000 fine, and complete a five-year term of probation, to include three months of home confinement. He also will perform 100 hours of community service. Pilling pleaded guilty to a Clean Air Act negligent endangerment count (42 U.S.C. § 7413).In late 2017, Pilling and Tibbets purchased two buildings in Burley, Idaho, planning to demolish them and build a parking lot. During a walkthrough with city officials, the building inspector pointed out likely asbestos-containing material (ACM). In further communications with the city, other city employees warned the owners about the presence of ACM requiring remediation. The owners took “samples” from the buildings that included wood, brick, and stone (but no building materials that could plausibly be composed of ACM) and submitted those to a forensic lab for analysis.In January 2018, both buildings caught fire under suspicious circumstances. After seeing the fire on the news, a local contractor contacted the defendants and offered to demolish what remained of the buildings using his own asbestos inspector and remediation company. The owners accepted the contractor’s bid but said they would hire their own remediation company. Two days later, the contractor saw the buildings under demolition. The defendants chose to hire an individual to knock them down without conducting any asbestos abatement. During the demolition, individuals hauled several truckloads of debris to a nearby landfill. The owners also lied to an inspector during a subsequent conversation about onsite testing.The National Enforcement Investigation Center analyzed samples taken from the sites and found multiple areas with ACM. Officials ultimately removed approximately 860 tons of asbestos-contaminated demolition debris from the site, at a cost of approximately $845,000.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation.United States v. Kyle Potter, et al.No. 3:24-CR-00047 (District of Alaska)AUSA Seth BrickeyOn October 22, 2024, a court sentenced Kyle Potter to pay a $20,000 fine and complete a five-year term of probation. Co-defendant Justin Welch was sentenced on October 1, 2024, to pay a $10,000 fine and complete a three-year term of probation. A restitution hearing is scheduled for December 10, 2024. Potter and Welch pleaded guilty to violating the Lacey Act for their roles in illegally transporting crab from Alaska (16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B)). Corey Potter is set for a status conference on December 11, 2024.Corey Potter owns two crab catching vessels; Kyle Potter and Welch worked as vessel captains. In February and March 2024, the vessels harvested more than 7,000 pounds of Tanner and Golden king crab in Southeast Alaska. Corey Potter directed Welch and Kyle Potter to take the crab to Seattle, Washington, where they intended to sell it at a higher price than they would have in Alaska. Neither captain landed the harvested crab at a port in Alaska, and they never recorded the harvest on a fish ticket, as required under state law.A large portion of the king crab that arrived in Seattle from Alaska had died and was unmarketable. Corey Potter knew that some of the crab aboard was infected with Bitter Crab Syndrome (BCS), a parasitic disease fatal to crustaceans. Officials were forced to destroy more than 4,000 additional pounds of Tanner crab due to the risk of BCS infection. If the defendants had properly landed the crab in Alaska, authorities could have inspected the harvest and removed the infected crab before leaving Alaska.The National Oceanic and Atmospheric Administration Office of Law Enforcement conducted the investigation.United States v. Ramiro Hernandez Tziquin, et al.No. 8:23-CR-00058 (District of Nebraska)AUSA Donald KleineAUSA Kimberly BunjerOn October 23, 2024, a court sentenced Ramiro Hernandez Tziquin, a Guatemalan citizen, to time-served for violating the Bald and Golden Eagle Protection Act (16 U.S.C. § 668(a)). Tziquin has been in custody since June 6, 2024. Hernandez Tziquin is subject to removal proceedings with United States Immigration and Customs Enforcement. Co-defendant Domingo Zetino Hernandez was sentenced in November 2023 to time served.On February 28, 2023, law enforcement received a report of a suspicious vehicle located at the Wood Duck Wildlife Management Area, located in Stanton County, Nebraska. They found the vehicle and questioned the defendants. Zetino Hernandez admitted that he shot a bird and that it was in the trunk of Hernandez Tziquin’s vehicle. Law enforcement confirmed that the carcass was indeed that of a bald eagle.The U.S. Fish and Wildlife Service Office of Law Enforcement, Nebraska Games and Parks Commission, and the Stanton County Sheriff’s Office, conducted the investigation.United States v. Envigo RMS, LLC, et al.No. 6:24-CR-00016 (Western District of Virginia)ECS Senior Trial Attorney Banu RangarajanECS Trial Attorney Sarah BrownECS Paralegal Jillian GrubbAUSA Randy RamseyerAUSA Corey HallAUSA Carrie MaconSAUSA Michelle WelchOn October 24, 2024, a court sentenced Envigo RMS, LLC, and Envigo Global Services, Inc. to pay a total criminal fine of $22 million. Envigo RMS pleaded guilty to conspiring to knowingly violate the Animal Welfare Act (AWA), and Envigo Global Services pleaded guilty to conspiring to knowingly violate the Clean Water Act (CWA) (18 U.S.C. § 371; 33 U.S.C. §§ 1311, 1319(c)(2)(A), 7 U.S.C. § 2149(d)). This case is related to the breeding, export, and sale of dogs for medical and scientific research purposes from a dog breeding facility located in Cumberland County, Virginia. In May 2022, officials rescued more than 4,000 beagles from the premises.As part of the resolution, Inotiv, the parent corporation of Envigo RMS and Envigo Global Services, will guarantee more than $35 million in payments, is subject to increased animal care standards, and engage a compliance monitor. This resolution marks the largest agreed-to fine in an AWA case.Envigo RMS violated the AWA by failing to provide, among other things, adequate veterinary care, adequate staffing, and safe living conditions for dogs housed at the Cumberland County facility. In addition, Envigo Global Services violated the CWA by failing to properly operate and maintain the wastewater treatment plant, leading to massive unlawful discharges of insufficiently treated wastewater into a local waterway. This failure also impacted the health and well-being of the dogs at the facility.In addition to the $22 million fine, the entities will pay approximately $1.1 million to the Virginia Animal Fighting Task Force and approximately $1.9 million to the Humane Society of the United States for direct assistance provided to the investigation. The defendants also will complete five-year terms of probation.The defendants will pay an additional $3.5 million to the National Fish and Wildlife Foundation to benefit and restore the environment and ecosystems in Cumberland County, with approximately $500,000 dedicated to purchasing riparian wetland or riparian land located in or near Cumberland. They also will spend $7 million to improve their facilities and train personnel over and above the minimum standards required by the AWA.The U.S. Department of Agriculture Office of Inspector General and the U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation, with assistance from the Virginia State Police.Related Press Release: Western District of Virginia | Animal Breeder Sentenced in Animal Welfare and Water Pollution Crimes, Will Pay More than $35M, Including Record Fine in Animal Welfare Case | United States Department of Justice Case photo of beagles rescued from the facility.United States v. AMVAC Chemical Corporation, et al.Nos. 1:24-CR-00043, 1:22-CR-00060 (Southern District of Alabama)ECS Senior Counsel Kris DigheAUSA Michael AndersonRCEC Jennifer LewisECS Paralegal Chloe HarrisOn October 25, 2024, a court sentenced AMVAC Chemical Corporation (AMVAC) to pay a $400,000 fine and to complete a three-year term of probation. The corporation pleaded guilty to violating the Resource Conservation and Recovery Act (RCRA) for transporting hazardous waste without a hazardous waste manifest (42 U.S.C. § 6928(d)(5)).AMVAC is a pesticide manufacturer that produced a pesticide called “Thimet” in Alabama and exported it to Canada, Australia, and other countries. Thimet is an organophosphate insecticide used to control crop pests by absorption into the crops themselves. In 2013, authorities determined that AMVAC was importing tens of thousands of used containers of Thimet through Savannah, Georgia; Port Huron, Michigan; Boston, Massachusetts; and Los Angeles, California. Some of the containers were nearly empty, while others were partially full. The containers were designed to attach directly to farming equipment and then be returned to AMVAC when emptied.The containers were not labeled as containing hazardous waste but as containing product (pesticide) for reformulation. However, the Environmental Protection Agency did not authorized AMVAC to reformulate Thimet. The active ingredient in Thimet is “phorate,” a RCRA acute hazardous waste. AMVAC is a large quantity generator of hazardous waste, with specific, known responsibilities under RCRA. AMVAC subsequently told EPA that the pesticide in the containers was imported for disposal. AMVAC failed to use hazardous manifests to transport the containers of waste Thimet to its Alabama facility.The U.S. Environmental Protection Agency Criminal Investigation Division conducted the investigation. Case photo of Thimet pesticideUnited States v. Gremex Shipping S.A. de C.V.No. 3:24-CR-00101 (Northern District of Florida)Former ECS Senior Trial Attorney Joel LaBissonniereECS Paralegal Jonah FruchtmanECS Law Clerk Saskia SanchezOn October 25, 2024, a court sentenced Gremex Shipping S.A. de C.V. (Gremex) to pay a $1.75 million fine, serve a four-year term of probation, and implement an environmental compliance plan. The shipping corporation pleaded guilty to violating the Act to Prevent Pollution from Ships (APPS) for failing to maintain an accurate oil record book (ORB) (33 U.S.C. § 1908(a)).Gremex is a Mexican corporation that managed several ships including the M/V Suhar. The Suhar is a 7,602 gross ton Panamanian-flagged ocean-going bulk carrier that routinely hauled cement from Tampico, Mexico, to Pensacola, Florida. Gremex was responsible for the Suhar’s day-to-day operations, including hiring all crew, and ensuring compliance with all environmental and international regulations.The Coast Guard inspected the ship when it arrived in Pensacola on August 25, 2023. Inspectors determined that the vessel’s crew regularly discharged untreated oily bilge water overboard, bypassing onboard pollution control equipment, and falsified the ship’s ORB to conceal these discharges.The U.S. Coast Guard Investigative Service conducted the investigation.Related Press Release: Office of Public Affairs | Ship Management Company Fined $1.75M for Failing to Maintain an Accurate Oil Record Book that Concealed Unauthorized Discharges at Sea | United States Department of JusticeUnited States v. Travis J. Branson, et al.No. 9:23-CR-00055 (District of Montana)AUSA Randy TannerAUSA Ryan WeldonOn October 31, 2024, a court sentenced Travis J. Branson to 46 months’ incarceration, followed by 36 months of supervised release. Branson also was ordered to pay $777,250 in restitution into the Lacey Act Reward Fund. Branson pleaded guilty to conspiracy and violations of the Bald and Golden Eagle Protection Act and the Lacey Act. Branson and co-defendant Simon Paul (a fugitive) unlawfully killed bald and golden eagles on the Flathead Indian Reservation and elsewhere in Montana, Idaho, and Nevada, and sold them on the black market (18 U.S.C. § 371; 16 U.S.C. §§ 668(a); 3372(a)(1), 3373(d)(1)(B)).Between January 2015 and March 2021, the defendants conspired to illegally kill bald and golden eagles on the Reservation and offer eagle feathers and parts for sale to domestic U.S. and international buyers. Branson traveled from Washington to the Reservation and arranged for Paul to shoot and ship the eagles for him. Confederated Salish & Kootenai tribal authorities tipped off Fish and Wildlife agents to the defendants’ activity.In total, Paul and Branson killed approximately 3,600 birds, including eagles. They then sold eagle feathers and parts on the black market for significant sums of money across the United States and elsewhere. Officials estimated that between 2009 and 2021, Branson made between $180,000 and $360,000 by selling eagles feathers and parts on the black market.The U.S. Fish and Wildlife Service and Confederated Salish and Kootenai Tribes’ Fish and Game Department conducted the investigation.Related Press Release: District of Montana | Washington man sentenced to nearly four years in federal prison for trafficking eagles, hawks killed on the Flathead Indian Reservation and sold on black market | United States Department of Justice Case photo of eagle claws illegal sold by defendants.View All Environmental Crimes Bulletins
#> 6 Individuals in financial distress are common targets for scammers. A scam operator calling itself the “Bankruptcy Fraud Watchdog Group” has recently set its sights on consumer debtors, sending letters falsely accusing debtors of failing to disclose assets in their bankruptcy cases. These letters threaten referrals to “the United States Bankruptcy Trustee” for fraud unless the debtors promptly pay “a one-time amnesty fine” of $450 in Bitcoin via a QR code to avoid “further legal consequences.” They also falsely state that debtors who share the letters with their attorneys will face “immediate referral for criminal prosecution.”As the actual watchdog of the bankruptcy system, the U.S. Trustee Program (USTP) identifies and helps investigate allegations of fraud or abuse, including schemes exploiting vulnerable consumers in bankruptcy. Accordingly, debtors should report contacts from the so-called “Bankruptcy Fraud Watchdog Group” or other suspicious communications to the USTP’s bankruptcy fraud hotline or to their local U.S. Trustee office.Consumer debtors can help protect themselves by looking out for common signs of schemes. For more information on these telltale signs and how to avoid falling victim to a scam, visit the websites of the Federal Bureau of Investigation and the Federal Trade Commission.
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#> 1 <NA> <NA> 2024-11-27
#> 2 <NA> <NA> 2024-11-22
#> 3 <NA> <NA> 2024-11-21
#> 4 <NA> <NA> 2024-11-21
#> 5 <NA> <NA> 2024-11-21
#> 6 <NA> <NA> 2024-11-13
#> teaser
#> 1 From November 26 to 27, the ICITAP Albania Police Oversight Agency (POA) advisory team partnered with the POA delegation, led by the POA Director General, the POA Tirana Director, and two POA Specialists for the 2024 European Partners Against Corruption (EPAC) Conference in Bucharest, Romania.
#> 2 A crucial element of the Justice Department’s fight against white collar crime is transparency — being clear about what we at the department are doing and why. As someone who has spent significant time as a defense lawyer, I know from personal experience how important it is to be able to explain to your client — whether that client is an individual or a board of directors at a publicly traded company — what is happening in an investigation, how the government might view their actions, and the risks and the benefits of proceeding in a certain way.
#> 3 On November 21, ICITAP representatives attended the graduation ceremony for the 72nd class of the Kyiv Patrol Police Academy.
#> 4 October’s cases include violations involving the Bald and Golden Eagle Protection Act, animal smuggling and wildlife trafficking, emissions tampering, asbestos and hazardous waste disposal, king crab harvesting, animal welfare/animal crush statutes, vessel pollution, and more.
#> 5 October’s cases include violations involving the Bald and Golden Eagle Protection Act, animal smuggling and wildlife trafficking, emissions tampering, asbestos and hazardous waste disposal, king crab harvesting, animal welfare/animal crush statutes, vessel pollution, and more.
#> 6 The USTP is warning consumer debtors of a scam operator calling itself the “Bankruptcy Fraud Watchdog Group,” which sends letters falsely accusing debtors of failing to disclose assets in their bankruptcy cases and threatening “legal consequences” such as criminal prosecution unless debtors pay a “one-time amnesty fine.”
#> title
#> 1 Romania: ICITAP Partners with Albania’s Police Oversight Agency for 2024 European Partners Against Corruption Conference and General Assembly in Bucharest
#> 2 Transparency in Criminal Division Enforcement
#> 3 Ukraine: ICITAP Attends Graduation Ceremony of 72nd Class at Patrol Police Academy
#> 4 Environmental Crimes Bulletin - October 2024
#> 5 Environmental Crimes Bulletin - October 2024
#> 6 U.S. Trustee Program Warns Consumers of Bankruptcy Fraud Alert Scam
#> url
#> 1 https://www.justice.gov/archives/criminal/criminal-icitap/blog/romania-icitap-partners-albanias-police-oversight-agency-2024-european-partners
#> 2 https://www.justice.gov/archives/opa/blog/transparency-criminal-division-enforcement
#> 3 https://www.justice.gov/archives/criminal/criminal-icitap/blog/ukraine-icitap-attends-graduation-ceremony-72nd-class-patrol-police-academy
#> 4 https://www.justice.gov/archives/enrd/blog/environmental-crimes-bulletin-october-2024
#> 5 https://www.justice.gov/archives/enrd/blog/environmental-crimes-bulletin-october-2024
#> 6 https://www.justice.gov/archives/ust/blog/us-trustee-program-warns-consumers-bankruptcy-fraud-alert-scam
#> uuid name
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#> 2 a1cff5bd-0c20-42de-85f1-8463fa620f4b <NA>
#> 3 0cd9dbb1-90cb-4b3d-83f2-d35da0ee13a8 <NA>
#> 4 db8a8326-8fbe-4f63-9895-fa12ca702787 <NA>
#> 5 db8a8326-8fbe-4f63-9895-fa12ca702787 <NA>
#> 6 c12d17f3-4fe4-4d15-b0d4-ab42ce69190a <NA>
# Return a dataframe with 15 of the earliest records. Data is not cleaned.
earliest_records <- doj_blog_entries(n_results = 15, search_direction = "ASC")
#> Warning: There were 2 warnings in `mutate()`.
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#> ! NAs introduced by coercion
#> ℹ Run `dplyr::last_dplyr_warnings()` to see the 1 remaining warning.
head(earliest_records)
#> body
#> 1 FOIA Post FOIA Training Session Referrals, Consultations and Coordination The Office of Information Policy (OIP) will host a government-wide training session focused on the newly issued guidance setting forth the procedures to be followed by agencies when processing records that originated outside their agencies, or that contain the equities of another agency or entity. The details for the training session are listed below: When: December 12, 2011 Where: OIP's Conference Room 1425 New York Avenue NW Suite 11050 Washington, DC Time: 11:00 - noon Who should attend: Federal agency personnel Registration is required to attend this event and seating is limited. If you are interested in attending, please e-mail your name to OIP’s Training Officer, Bertina Adams Cleveland, at DOJ.OIP.FOIA@usdoj.gov. If you have any questions regarding this event, please contact Ms. Adams at (202) 514-1010.
#> 2 FOIA Post - Court Decisions and Summaries of New Decisions - April 2011 Summaries of Court Decisions (April 2011) As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these cases summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.WEEK OF APRIL 4Courts of Appeals1. Schwarz v. DOJ, No. 10-3065, 2011 U.S. App. LEXIS 6968 (2d Cir. Apr. 5, 2011) (unpublished disposition)Re: Requests for records pertaining to two monetary awards to which plaintiff alleges she is entitled to in connection with whistleblower activityHolding: Affirming the judgment of the district court, which ruled that defendants conducted adequate searches for responsive records• Litigation considerations/adequacy of search: Reviewing de novo the district court's grant of summary judgment to the defendants, the Second Circuit "affirm[s] the judgment below for substantially the same reasons stated by the District Court in its well-reasoned decision" in which the court held that defendants' affidavits established the sufficiency of their searches for responsive records. The Circuit dismisses plaintiff's arguments on appeal, concluding that "they are without merit." District Courts1. Quick v. Dep't of Com., No. 09-2064, 2011 WL 1326928 (D.D.C. Apr. 7, 2011) (Kollar-Kotelly, J.) Re: Request for raw data used by the National Institute of Standards and Technology (NIST) in its architectural and engineering remodeling of the collapse of the World Trade Center 7 building on September 11, 2001 Holding: Granting defendant's motion for summary judgment based on the adequacy of its search, its withholdings under Exemption 3, and its showing of segregability; denying plaintiff's cross-motion for summary judgment and his request for discovery• Litigation considerations: Given that plaintiff did not submit a counter-statement to defendants' statement of material facts not in dispute as required by the court's local rules, "[t]o the extent that the Court is unable to discern the extent of [plaintiff's] agreement or disagreement with NIST's proffered facts from the contents of his statement [of facts submitted with his cross-motion for summary judgment], the Court shall, in an exercise of its discretion, assume the uncontroverted facts identified by NIST to be admitted for purposes of resolving the pending motions." The court further notes that since there "appears to be surprisingly little disagreement between the parties about the underlying facts, the impact of this conclusion is likely de minimus." Moreover, "[b]ecause [plaintiff] has completely failed to contest NIST's arguments that it conducted a reasonable search for records, produced all disclosable records, and properly withheld responsive records, the Court shall treat those arguments as conceded." Despite this finding, the court also determines that the agency's affidavits establish the adequacy of its search, justify its exemption claims, and demonstrate that it released all reasonably segregable nonexempt information. • Adequacy of search: The court finds that the agency made a "'good faith effort to conduct a search for the requested records'" where it "submitted a detailed declaration describing the contours of its search for the raw data used to prepare the architectural and engineering models simulating the collapse of the WTC 7 building." Notably, the agency's "search included consulting with experts in NIST's Building and Fire Research Laboratory . . . the agency component responsible for performing the modeling in question and the area most likely to maintain records responsive to [plaintiff']s request," which was the place where records were in fact located. • Exemption 3: The court concludes that "NIST has provided ample support for its contention that its decision to withhold 68,500 data files involved in a straightforward application of FOIA Exemption 3" in conjunction with a provision of the National Construction Safety Team Act, 15 U.S.C. § 7606(d), which allows NIST to protect "any information that it receives in the course of an investigation . . . if [NIST's] Director finds that the disclosure of that information might jeopardize public safety." Here, the court notes that under this provision, "the Director of NIST made an express finding that the public disclosure of certain types of information pertaining to the architectural and engineering modeling of the collapse of the WTC 7 building might jeopardize public safety." In contrast to the information disclosed to plaintiff, the court finds that "the withheld data files contain information that could be used to predict the collapse of a building and, if made available to a person with the appropriate level of expertise, would provide instruction to individuals wanting to learn how to simulate large building collapses and how to most effectively destroy large buildings." • Segregability: The court determines that "NIST's sworn declarations describe how, after conducting an extensive interrogation of the data files responsive to [plaintiff's] request, it has carefully reviewed and released all reasonably segregable information." • Vaughn Index: The court observes that "NIST's submissions are a perfect illustration of how abstraction and categorical treatment, used properly may assist the court in evaluating the agency's withholding decisions," noting that NIST's "Vaughn index divid[es] the data files into their organizational and functional case folder[s]" and sets forth detailed information about the nature of the withheld information. • Attorney fees: The court denies plaintiff's cross-motion for summary judgment to the extent that it is premised on his contention that he "'substantially prevailed' in this action because NIST produced records responsive to his request after the commencement of the instant action." The court rejects this claim, finding that this "question goes to his entitlement to attorneys' fees, and . . . [plaintiff] has since conceded that it is premature for the parties to address the recovery of attorneys' fees at this time." • Pattern or practice of delay: With respect to plaintiff's argument that "he is entitled to summary judgment because NIST has 'an unlawful patten [sic] and practice' of producing records only after a requester takes the step of commencing a lawsuit," the court finds that this assertion is "without merit" because "nothing even remotely resembling a 'pattern or practice' claim appears within the four corners of [plaintiff's] Complaint" and "he would nevertheless lack standing to pursue such a claim in this action" because "the record is clear that [plaintiff] was not himself subject to such a pattern or practice." While NIST did not respond within the "twenty-working-day default period," that is "unremarkable" given the "staggering scope and complexity of the data" requested. • Discovery: The court denies plaintiff's renewed request for "'limited discovery' as to whether NIST was actually taking action in processing his request prior to the filing of this action." For one, the court finds that plaintiff "still has not made a formal showing, by affidavit or declaration [required by Federal Rule of Civil Procedure 56(d)], that he 'cannot present facts essential to justify [his] opposition." Rather, plaintiff "never identifies precisely what information he would seek or what evidence he hopes to discover" and "fails to articulate how his speculative discovery requests 'would alter the [C]ourt's determination.'" Second, the court finds discovery unwarranted because the "agency's declarations are sufficiently detailed" and plaintiff "has failed to raise substantial or even colorable doubt concerning the adequacy or good faith of NIST's response to his request." 2. Rosario v. Holder, No. 10-1565, 2011 U.S. Dist. LEXIS 37825 (D.D.C. Apr. 7, 2011) (Bates, J.)Re: "Petition for writ of mandamus" to compel DEA to release a daily log book maintained by a DEA agent at San Juan International Airport Holding: Dismissing plaintiff's action under Rule 12(b)(6) on the grounds that it is barred by res judicata• Res judicata: As an initial matter, the court notes that "[b]ecause a claim for agency record is properly brought under the Freedom of Information Act . . . , defendants have construed this action as brought under the FOIA, and the Court will do so as well." The court holds that plaintiff's action is barred by the doctrine of res judicata where "this case is predicated on the same FOIA request forming the basis of Rosario I," a 2008 lawsuit brought by plaintiff where the court granted summary judgment to the government as conceded. Here, the court finds that the elements of claim preclusion are met because the parties and claims are the same in both the earlier and the instant action and court entered a final judgment for the defendants in the earlier case and "[p]laintiff did not appeal that order, which 'operated as an adjudication on the merits.'"3. Margolin v. NASA, 2011 U.S. Dist. LEXIS 40882 (D. Nev. Mar. 31, 2011) (Hicks, J.) Re: Records pertaining to an administrative claim of patent infringement made by plaintiff, an inventorHolding: Granting defendant's motion for summary judgment for all but one document based on Exemptions 3, 4 and 5; and granting plaintiff's summary judgment as to the one document• Exemption 3: The court concludes that NASA properly withheld copies of the proposal of a contractor involved in its Small Business Innovation Research program under Exemption 3 in conjunction with 41 U.S.C. § 253b(m), and 10 U.S.C. § 2035(g), which "expressly prohibit disclosure under FOIA of a 'competitive proposal' submitted by an agency contractor, unless the proposal 'is set forth or incorporated by reference in a contract entered into between the agency and the contractor.'" Here, NASA submissions established that this particular "proposal was not incorporated by reference into the resulting contract."• In camera review: The court finds that NASA's submissions "set forth in sufficient detail the factual and legal basis for withholding the [contractor's] proposal under Exemption 3" and that plaintiff's "mere refusal to believe [the agency declarant's] sworn representations is insufficient to warrant in camera review." • Exemption 4: The court holds that NASA properly invoked Exemption 4 to withhold certain offers of settlement or compromise by a company involved with NASA in a patent dispute, as well as information pertaining to those offers, such as license fees and other financial details relating to patents disputed in the administrative claim for infringement. NASA also properly withheld certain communications between another NASA contractor and its attorneys related to that claim. First, the court finds that these documents "plainly qualify as 'commercial or financial information' with in the meaning of [Exemption 4]." The information "was also obtained from a 'person.'" Next, the court determines that "the information is 'confidential' because disclosure would likely 'impair the government's ability to obtain necessary information in the future,'" "for fear that NASA would again release the information to the public." In the case of records claimed as privileged under Exemption 4 under "attorney-client, attorney work product, and common interest privileges," the court finds that "even if [plaintiff] were correct that [the NASA contractor's] materials ceased to be privileged upon disclosure to NASA, the information is still exempt from disclosure" because Exemption 4 covers information that "may be either 'privileged or confidential.'" Moreover, "if the common interest privilege were inapplicable, the [contractor's ] materials would qualify as confidential a fortiori, as the potential waiver of the attorney-client privilege and the public disclosure of attorney work product would certainly dissuade an agency contractor from providing its attorney work product to NASA in the future." • Waiver/inadvertent disclosure: NASA's inadvertent release of "bank account numbers and other information related to the . . . offers of settlement or compromise [in relation to the patent infringement dispute] in its initial FOIA response do not preclude NASA from withholding the same or similar information under Exemption 4 in its supplemental response." The court finds that "[a] contrary holding would only increase the reticence to provide commercial and financial information to NASA, thereby further impairing the agency's ability to obtain such information in the future." • Exemption 5 (attorney-client, attorney work product & deliberative process privileges): As a preliminary matter, the court determines that various communications, involving NASA attorneys and personnel and related to the patent infringement claim and the FOIA request underlying the instant litigation for which NASA claimed Exemption 5, "were circulated among NASA personnel and therefore qualify as 'intra-agency materials." The court then concludes that "these materials were circulated among NASA attorneys and between NASA attorneys and NASA's technical experts in the course of the investigation and analysis of [plaintiff's] administrative claim for patent infringement and NASA's response to [plaintiff's] FOIA request" and that "[s]uch attorney-client communications and attorney work product in the course of an agency's response to administrative claims against the agency and in contemplation of potential litigation against the agency are not 'normally' or 'routinely' subject to disclosure in civil litigation and therefore are exempt from mandatory disclosure under Exemption 5, without regard to the status of any litigation." Additionally, the court finds that "the same documents are also protected under the deliberative process privilege, at least insofar as they predate NASA's final agency decision on the patent infringement claim and NASA's final decision on [plaintiff's] FOIA request." The court notes that it "need not reach the parties' disagreement as to whether Exemption 5 and the common-interest privilege apply to the [contractor's] attorney-client communications that were disclosed to NASA, as the court has already concluded that such materials are exempt from disclosure under Exemption 4." However, the court grants summary judgment to the plaintiff with respect to one document for which NASA has not sufficiently justified its assertion of Exemption 5. The court finds that with respect to that document "NASA's submissions fail to identify [the sender or recipient of the communications], describe the subject matter of the patent claim, or establish how this document constitutes privileged intra- or inter-agency material." • Exemption 6: The court finds that NASA properly redacted the "personal information, including telephone numbers, street addresses, e-mail addresses, bank account information, and social security numbers" because "[s]uch information is properly considered private information within the purview of Exemption 6." As to plaintiff's assertion that "NASA's redactions of names and addresses is 'disingenuous' because 'NASA openly posts names and addresses of many NASA employees on their Web sites,'" the court finds that this "argument misses the mark . . . as NASA has not claimed an exemption for agency information, only personal information" and, moreover, plaintiff "has entirely failed to carry his burden of showing how disclosure of such information would shed light on NASA's performance or otherwise let citizens know what their government is up to." WEEK OF APRIL 11Courts of Appeals1. Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 09-5439, 2011 WL 1437419 (D.C. Cir. Apr. 15, 2011) (Williams, J.)Re: Request for records pertaining to import restrictions imposed on cultural artifacts from China, Italy, and Cyprus Holding: Affirming the judgment of the district court that withholdings under Exemptions 1 and 5 were proper; reversing and remanding the district court's dismissal of plaintiffs' claims with respect to one record withheld under Exemption 3 and, in part, the holding on the adequacy of the agency's search • Exemption 1/prior disclosure: The D.C. Circuit affirms the decision of the district court that the State Department properly withheld, pursuant to Exemption 1, portions of reports of the Cultural Property Advisory Committee (CPAC) containing information provided by the government of Cyprus and a request from China for American import restrictions. The Circuit dismisses plaintiffs' argument that Exemption 1 protection was waived for the information provided by Cyprus because it was shared with a private organization. Rather, the Circuit finds that plaintiffs' "evidence falls way short" of satisfying its burden to identify "specific information in the public domain duplicative of the withheld information." Additionally, the Circuit comments that "[e]ven if [the State Department] had disclosed such information, a limited disclosure to a small number of individuals might not be enough to render classification inappropriate." As to "State's publication of a summary of [China's] application [for import restrictions] on its website," this limited release "does not, in itself, make classification of material in the longer [undisclosed] report inappropriate." The Circuit notes that "as a simple factual matter, publication of part of a document does not put the rest into the public domain" and concludes that "[w]e have no reason to doubt State's contention that the full application contains information on looting that is properly classified." • Exemption 3: The D.C. Circuit concludes that provisions of the Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2605(h), 2506(i)(1), qualify as an Exemption 3 withholding statute. With respect to plaintiffs' argument that section "2605(h) does not meet Exemption 3's requirements," the Circuit finds that because the provision "authorizes the President or his designee to close CPAC meetings otherwise required to be open, exempts materials 'involved in' such proceedings from the open-meetings provisions of [the Federal Advisory Committee Act (FACA)], and provides 'particular criteria' for deciding on such closures (or at least as 'particular' as one can expect criteria to be in the realm of foreign affairs), § 2605(h) qualifies as an Exemption 3 withholding statute." The Circuit also rejects plaintiffs' contention that "the resulting non-disclosure [under § 2605(h)] should be understood to apply only until negotiations on the agreement at issue have ended." Rather, the Circuit observes that "the language of §2605(h) invites no such temporal slicing" and finds that "[w]hile it may be especially obvious that disclosure in advance of agreement may stifle the negotiating process, the threat of imminent disclosure – ripening just at the moment of agreement – would surely inhibit the candor that [the provision] is meant to foster." As to plaintiffs' challenge that the State Department's declarant is "not the proper official to make . . . a determination" under §2605(h), the Circuit notes that "[t]his argument misunderstands the standard" and concludes that "[t]he decision to close a CPAC meeting itself required a determination by the President or his designee under § 2605(h)" and that the agency's declaration explains that "the proper official made such a determination."The D.C. Circuit agrees with plaintiffs that as to one withholding made under § 2605(i)(1), which "prohibits disclosure . . . of any information 'submitted in confidence by the private sector to officers or employees of the United States or to the Committee in connection with the responsibilities of the Committee,'" the State Department has not met its burden. Applying the standard for confidentiality discussed by the Supreme Court in Landano, the Circuit determines that the State Department's declaration does not sufficiently explain "how the declarant knows that [a certain individual] provided information in confidence." Accordingly, the Circuit reverses and remands to the district court for that document and states that "[o]n remand, State may provide additional reasons for its belief that [the individual] provided information in confidence." • Exemption 5 (deliberative process privilege): The D.C. Circuit affirms the district court ruling that the State Department properly withheld portions of CPAC reports. The Circuit finds that although CPAC is subject to the disclosure provisions of the FACA, "[r]ather than preempting the FOIA exemptions, the relevant portion of FACA explicitly incorporates FOIA into the standard for public disclosure of committee reports, presumably with its exemptions intact." Contrary to plaintiffs' assertions, the fact that the CPAC reports are required to be made available to Congress "does not . . . imply a waiver of later invocation of such exemptions" because the "the statute explicitly makes disclosure to Congress an exception to the rule that information 'submitted in confidence by the private sector . . . shall not be disclosed to any person." The D.C. Circuit notes that plaintiffs did not raise the issue as "whether CPAC is an agency for purpose of Exemption 5," but since "plaintiffs seem to share State's assumption that the documents here qualify as interagency or intra-agency memoranda," "we will assume without deciding that they are such memoranda." The Circuit finds that "CPAC recommendations are pre-decisional because "they were created '[a]ntecedent to the adoption of an agency policy.'" Moreover, the Circuit finds that factual summaries contained in the reports are also protected by Exemption 5 because they "reflect CPAC's predecisional deliberative process," in culling certain facts from a much larger universe of facts, as was done in Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993). • Adequacy of search: The D.C. Circuit concludes that the State Department must supplement its declarations regarding the adequacy of its search. As an initial matter, the Circuit disagrees with plaintiffs' "first contention – that State's search was inadequate because it turned up only a few emails from CPAC's Executive Director – even if that slim yield may be intuitively unlikely." Rather, the Circuit finds the fact "[t]hat State's search turned up only a few emails from [the Executive Director] is not enough to render its search inadequate, even supposing that any reasonable observer would find this result unexpected." However, the Circuit finds that plaintiffs' "second argument, that State failed to show the adequacy of its search, because it didn't address its employees' archived emails and backup tapes, has more merit." The Circuit determines that the State Department failed to explain whether it has email archives for certain employees, "whether there are backup tapes containing staff member emails and, if so, whether such backup tapes might contain emails no longer preserved on staff members' computers." The Circuit acknowledges that “[i]t may well be that searching additional emails archives and backup tapes would be impossible, impractical, or futile,” still, given that plaintiffs raised this issue before the district court, the Circuit concludes that "it is reasonable to expect State to inform the court and plaintiffs whether backup tapes of any potential relevance exist; if so, whether their responsive material is reasonably likely to add to that already delivered; and if these questions are answered affirmatively, whether there is any practical obstacle to searching them." The issue is remanded.District Courts1. Ctr. for Int'l Envtl. Law v. Office of the U.S. Trade Rep., No. 01-498, 2011 WL 1379823 (D.D.C. Apr. 12, 2011) (Roberts, J.) Re: Request for records concerning sessions of the Negotiating Group on Investment for the Free Trade Agreement of the Americas (FTAA); remaining at issue is one document withheld pursuant to Exemption 1Holding: Denying USTR's renewed motion for summary judgment where it has not sufficiently demonstrated that disclosure of one particular document would harm the United States' national security interests, and directing the filing of a schedule on which the case should proceed• Exemption 1: The court denies USTR's renewed motion for summary judgment on the basis that it did not adequately justify its assertion of Exemption 1 to protect a document discussing the United States' interpretation of the phrase "in like circumstances," the meaning of which "defines the conditions under which the national treatment and most-favored-nation treatment rules apply." First, the court finds that "while disclosure here would breach the understanding with the other participating governments [taking part in the FTAA negotiations], the claim that such a breach would harm national security is much less compelling than it was in other [Exemption 1 cases decided by the district court and the D.C. Circuit], since the United States would be revealing its own position only, not that of any other country." Therefore, the court concludes that USTR "has not shown it likely that disclosing [the] document [at issue] would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential." Additionally, the court finds USTR's contention that disclosure "could 'undermine the ability of the United States to negotiate and conclude the FTAA and other trade and investment agreements on terms favorable to the U.S. economic and security interests' by damaging the trust that negotiating partners have in the United States" is inconsistent with USTR's justification for withholding the meaning of the phrase "in like circumstances," i.e., that "foreign nations could use USTR's position as evidence that the United States has breached investment agreements [and thereby] could 'potentially subject the United States to trade or investment retaliation, causing harm to U.S. foreign relations.'" The court notes that "[i]t hardly seems consonant to argue on the one hand that disclosure would harm national security because it would undermine trade partners' trust in the United States, and on the other hand that disclosure would harm national security because it would prevent the United States from articulating one interpretation of 'in like circumstances' in trade negotiations and then adjusting that definition to suit its needs in other situations – a tactic that would presumably undermine the trust of foreign governments in the United States." Accordingly, the court finds that "[s]uch inconsistency is an indication of unreliability and the agency affidavits will be shown no deference with respect to any justification for withholding that involves maintaining the trust of negotiating partners." The court also discounts USTR's claim that "disclosure of its own trade positions would create the perception among foreign nations that the United States is attempting to strengthen its bargaining position through public pressure, which, in turn, might cause foreign nations to attempt to increase public support for their own positions and might reduce the likelihood of compromise among nations." The court determines that "[t]his explanation does not provide a logical nexus between the document and the claimed national security exemption." Moreover, "USTR would not be releasing [the] document [at issue] by way of a unilateral decision that a negotiating partner could perceive as a negotiating tactic," but rather "to comply with the FOIA – after protracted litigation no less." 2. McCoy v. FBI, No. 10-1973, 2011 WL 1343048 (D.D.C. Apr. 7, 2011) (Wilkins, J.)Re: Plaintiff's motion for leave to supplement his complaint with a discussion of the Prisoner Litigation Reform Act and request for grant of in forma pauperis status under Rule 15(d) or for court to reconsider its order vacating plaintiff's in forma pauperis status Holding: Denying plaintiff's motion to supplement complaint under Rule 15(d); denying plaintiff's motion to reconsider its decision to vacate order granting plaintiff in forma pauperis status• In forma pauperis: The court denies plaintiff's request for reconsideration of its order vacating his in forma pauperis status premised on his claim that he qualifies for the imminent danger exception to the Prison Litigation Reform Act's three-strikes rule. The court finds that plaintiff's claim that he is in imminent danger in prison has "nothing to do with [his underlying FOIA] claim." "Plaintiff's action under the Freedom of Information Act . . . is wholly unconnected to the generalized allegations of danger Plaintiff allegedly faces in prison." The court notes "[i]n other words, whether Defendants improperly withheld records in response to Plaintiff's FOIA request bears no relation to whether Plaintiff faces danger from prison violence." 3. Ferrigno v. DHS, No. 09-5878, 2011 WL 1345168 (S.D.N.Y. Mar. 29, 2011) (Sullivan, J.) Re: Request for records pertaining to plaintiff's employment-related harassment complaintHolding: Granting DHS's motion for summary judgment as to the adequacy of its search and its withholdings under Exemptions 5 and 6; ordering DHS to submit certain documents for in camera review in order to evaluate segregability• Adequacy of search: The court holds that DHS conducted a reasonable and good faith search for e-mails responsive to plaintiff's request and that discovery on this point is unnecessary. The court "agrees with plaintiff that Defendant should have searched for the e-mails at the time of plaintiff's original request; however, the Court finds that Defendant's later supplemental search was reasonable, if not perfect." The supplemental search included backup tapes, which is where DHS determined that the e-mails would be located. The court further notes that "[p]laintiff has presented no evidence that Defendant acted in bad faith, by for example, intentionally deleting the e-mails to avoid disclosing them." With respect to records other than e-mails, the court concludes that DHS search was sufficient because its declaration showed that DHS performed "an extensive search for responsive documents in five of its subdivisions and has provided copies of all documents that do not fall within an exemption under FOIA" and plaintiff does not contest those searches. • Fee waiver: The court denies plaintiff's request for a waiver of fees, concluding that "Plaintiff has failed to demonstrate that the disclosure of information about the investigation into his harassment complaint will open agency action to the light of public scrutiny." The court rejects plaintiff's argument that he is entitled to a fee waiver because the e-mails at issue "'may involve the planning of unlawful or inappropriate actions by high ranking officials.'" For one, the court notes that "Plaintiff's allegations of government impropriety are purely conclusory" and that he "has presented no evidence challenging the [Immigration and Customs Enforcement (ICE)] Investigator's finding that his allegations against [his] Supervisor were unfounded." Additionally, the court concludes that "this 'allegedly 'public' interest is easily outweighed by the private benefit plaintiff seeks,'" noting that his "request for the e-mails seems to be little more than an attempt to continue the investigation and settle old scores," which "can hardly be said to be in the public interest and do not justify a fee waiver." Moreover, "Plaintiff has not even argued that he has an intention of disseminating the e-mails to the public, much less demonstrated his ability to do so." • In camera review: The court declines to conduct an in camera review for the purpose of "determining the applicability of the FOIA exemptions in this case" because DHS's "Vaughn Index and Declaration are sufficiently detailed." • Exemption 6: The court concludes that DHS properly withheld third party information contained in investigative memoranda pursuant to Exemption 6. As an initial matter, the court finds that "the requested files – records of ICE's internal investigation containing the names and statements of witnesses, the Investigator, and the Supervisor are clearly similar files for the purpose of Exemption 6." In terms of the privacy interests, the court determines that "the Supervisor, the Investigator, and the interviewees whose statements are recorded in the memoranda at issue all have a more than de minimus [sic] privacy interest in these memoranda, as being identified as part of the investigation in Plaintiff's complaint could subject them to embarrassment and harassment."Conversely, plaintiff failed to identify any countervailing public interest in disclosure. The court notes that "[t]o the extent Plaintiff is asserting that his interest in vindicating his claims, justifies disclosure, this private reason for obtaining the information is clearly insufficient." Moreover, the court further states that "[p]laintiff has produced absolutely no evidence that government impropriety might have occurred, beyond his own assertions." Balancing the privacy and public interests involved, the court holds that disclosure of information pertaining to third parties named in the records would constitute a clearly unwarranted invasion of personal privacy. Although the court noted that "there is a stronger case for releasing" the identity of the supervisor, it ultimately concluded that "the Supervisor's somewhat low rank, the relatively minor charge against him, and the weakness of the evidence all weigh against disclosure." • Exemption 5 (deliberative process privilege): The court finds that DHS properly invoked the deliberative process privilege to withhold portions of investigative memos containing witness statements collected during the course of an investigation into plaintiff's harassment complaint. The court determines that "[t]he witness memoranda in this case are certainly pre-decisional, as they were prepared before [the] decision [as to whether to discipline the supervisor] was made and were created to help ICE officials make that decision." Additionally, the documents were also "deliberative, as the information contained in the interview memoranda formed an important link in the investigative process . . . , the memoranda reflect the personal opinions of the interviewees . . . , and their public disclosure is likely to have a chilling effect on witnesses in future investigations."• Segregability: Even though DHS's declaration provides some details regarding segregability of non-exempt information, the court concludes that it will review the documents in camera in order to evaluate whether any withheld portions are reasonably segregable. WEEK OF APRIL 18Courts of Appeals1. Sanders v. DOJ, No. 10-5273, 2011 U.S. App. LEXIS 8326 (D.C. Cir. Apr. 21, 2011) (per curiam)Re: Requests for certain records pertaining to plaintiff's prosecutionHolding: Granting summary affirmance of the district court judgment, which dismissed plaintiff's claims against individual defendants and his various requests for relief unrelated to the disclosure of records, ruled that a grand jury transcript was properly withheld under Exemption 3, and concluded that the government conducted an adequate search• Proper party defendant: The D.C. Circuit holds that "[t]he district court properly dismissed claims against the individual defendants because such claims are not cognizable under the Freedom of Information Act." • Adequacy of search: The D.C. Circuit concludes that the district court properly found that the agency "met its burden of demonstrating that its search for responsive records was adequate" "through its detailed declarations." • Exemption 3: The D.C. Circuit affirms the district court's decision that the agency properly withheld grand jury transcripts pursuant to Exemption 3 in conjunction with Federal Rule of Civil Procedure 6(e) because they "would reveal 'such matters as the identities . . . of witnesses . . . , the substance of testimony, [and] the questions of jurors.'" • Relief: The D.C. Circuit holds that "because FOIA requesters are not entitled to relief beyond the disclosure of the records that they seek, the district court properly concluded that appellant's various requests for relief in addition to the disclosure of documents are not available to him in this FOIA suit." 2. Stevens v. Colt, No. 10-14387, 2011 WL 1500599 (11th Cir. Apr. 20, 2011) (per curiam)Re: Mandamus petition to compel IRS agents to provide documents supporting their authority to file liens and levies on plaintiff's assetsHolding: Affirming the district court's decision to dismiss plaintiff's mandamus petition • Jurisdiction: The Eleventh Circuit concludes that plaintiff "failed to demonstrate entitlement to mandamus relief sufficient to sustain mandamus jurisdiction" and, furthermore, notes that the FOIA "provided an alternative avenue of relief, as it authorizes judicial review of an agency decision to withhold agency records." 3. Brayton v. Office of the U.S. Trade Rep., No. 09-5402, 2011 WL 1466337 (D.C. Cir. Apr. 19, 2011) (Griffith, J.)Re: Request for a classified international trade agreement between the United States and the European Union concerning Internet gamblingHolding: Affirming the district court's denial of plaintiff's request for attorney fees where USTR declassified and released the requested trade agreement to the public after the parties moved for summary judgment but before the court ruled• Standard of review: The D.C. Circuit reviews for abuse of discretion the district court's denial of plaintiff's request for an award of attorney fees and "examine[s] de novo whether the district court applied the correct legal standard." • Attorney Fees: The D.C. Circuit affirms the judgment of the district court that plaintiff is not entitled to recover attorney fees in connection with a FOIA request when the agency's "initial decision to withhold was clearly justified." Indeed, despite the change in the "eligibility" standard brought about by the OPEN Government Act of 2007, that "did not have any effect on the standard for fee entitlement." "For purposes of fee entitlement, the rule remains that if the government was 'correct as a matter of law' to refuse a FOIA request, 'that will be dispositive.'" The Circuit rejects plaintiff's argument that the district court, despite finding that he was not entitled to an award of attorney fees, "still should have considered awarding him fees because his claim for disclosure was 'not insubstantial.'" The D.C. Circuit also finds that plaintiff's interpretation of the fee award provision "would make the law of FOIA fee entitlement even more favorable to plaintiffs than it was before Buckhannon" and concludes that the legislative history of the OPEN Government Act does not support such a reading. Additionally, the Circuit comments that "[i]f a court finds that there were genuine issues of material fact in dispute before the case was settled, the court may still award fees as long as the plaintiff has substantially prevailed on the basis of a claim that was 'not insubstantial.'" The Circuit notes that ironically awarding fees in cases such as this one "might prod government agencies to be less rather than more transparent." Conversely, however, "[u]nder the rule applied by the district court, agencies in USTR's position can choose to relent for the sake of transparency and release requested documents without exposing themselves to monetary penalties: the fact that their initial nondisclosure decision rested on a solid legal basis creates a safe harbor against the assessment of attorney fees." District Courts1. Porter v. CIA, No. 10-050, 2011 WL 1497648 (D.D.C. Apr. 21, 2011) (Boasberg, J.)Re: Requests for records pertaining to plaintiff Holding: Granting summary judgment to defendants based on reasonableness of their search for responsive records• Procedural/Adequacy of search: The court determines that "[h]aving previously conducted searches in response to two substantively similar FOIA requests from plaintiff," the CIA's decision to confine the timeframe of its search to a period which "represents the time between Plaintiff's second request and Defendant's acceptance of his third request" was reasonable. In light of the fact that the CIA twice notified plaintiff regarding the limited scope, the court finds "Defendant's belief that Plaintiff had acquiesced by his silence in the scope of the search was reasonable." Additionally, the court finds that "Defendant's decision to limit the time period was independently reasonable, given that this was Plaintiff's third request for the same information" and that "[p]laintiff has submitted neither evidence nor persuasive argument to support its position that the time limitation was unreasonable or that documents not previously located might crop up on this occasion." • Exhaustion: The court concludes that plaintiff's challenge to the scope of the search would also fail on the grounds that "he has not exhausted his administrative remedies on this issue." Although plaintiff submitted an administrative appeal in connection with his third FOIA request, and did appeal the adequacy of the search, "[a]t no point during the appeal process did Plaintiff ever aver that he was appealing the timeframe of the search." As such, the court finds that "summary judgment on this issue is consistent with the purposes of exhaustion and FOIA's detailed administrative scheme." • Adequacy of search: The court holds that the CIA conducted an adequate search for responsive records where its declaration "lays out in detailed fashion: (1) the files that were searched; (2) the reasons for searching those files; (3) the search terms employed; and (4) the search method used." With respect to plaintiff's argument that the CIA failed to produce one document that was previously released to him under another request, the court finds "given the more recent timeframe of the search, it is unsurprising that this older document was not uncovered." Moreover, "the fact that responsive documents once existed does not mean that they remained in Defendant's custody or that Defendant had a duty to retain them, and the agency's failure to turn up a particular document – or mere speculation that as yet uncovered documents might exist – will not undermine an otherwise adequate search." 2. Physicians for Human Rights v. DOD, No. 08-273, 2011 WL 1495942 (D.D.C. Apr. 19, 2011) (Bennett, J.) Re: Request for records pertaining to mass gravesite in Afghanistan where Taliban fighters are allegedly buried; at issue is the sufficiency of a supplemental search for records by the U.S. Central Command (CENTCOM) and its withholding of certain information contained in three documents uncovered during the search Holding: Granting defendants' renewed motion for summary judgment based on the adequacy of its supplemental search and its justifications for withholding information pursuant to Exemptions 1, 2, 3, and 6 • Adequacy of search: The court concludes that CENTCOM's search was adequate based on its declaration, which "describes in sufficient detail the location, search methods, and scope of the search conducted." Contrary to plaintiff's arguments, the court notes that "there is no requirement, and [plaintiff] points to no case law so indicating, that an agency is required to list the individual units of an agency that were not searched – indeed, such a requirement would impose a burden on Defendants that FOIA does not contemplate." The court likewise rejects plaintiff's arguments that "the declaration is insufficient because it is not detailed enough with regard to how the key word search was carried out, that the declaration fails to identify the specific individuals who conducted the searches, and because the declaration does not indicate the precise method by which Defendants ruled out false positive responses." As to defendants' key word searches and its ability to rule out false positives, the court finds that CENTCOM's "declaration sufficiently sets forth 'the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials . . . were searched" and, consequently, "[t]he declaration allows this Court to assess CENTCOM's search to the extent necessary to determine that it satisfied its burden." With respect to defendants' failure to identify the specific individuals conducting the search, the court determines that this fact "is of little moment – FOIA does not impose such a burden on the agency." Additionally, the court finds plaintiff's "contention that Defendants' search was inadequate because the declaration does not establish that CENTCOM searched in Afghanistan, can be easily disposed of" because "[i]t is clear that the declaration sufficiently states the geographic scope of Defendants’ search and this Court concludes that the search was adequate and included records located in Afghanistan." • Exemption 1 (Exec. Order 12,958): The court holds that defendants properly redacted certain information concerning intelligence activities and foreign relations pursuant to Exemption 1. The court dismisses plaintiff's claim that "the declaration does not describe how Exemption 1 applies to each of the redacted sections individually," finding that "the very case relied upon by [plaintiff] does not impose such a requirement, and [the agency's] declaration provides this court with a sufficient basis to evaluate the exemption claim" where it describes the withheld material and identifies the harm that would be occasioned by its disclosure.• In camera review: The court concludes that in camera review is not warranted to inspect the material withheld under Exemption 1 "[b]ecause this Court has already concluded that the affidavit submitted by Defendants is sufficient, and because [plaintiff] has put forth no arguments or evidence tending to question the justifications provided in the affidavit."•Exemption 2: Citing Crooker and not referencing the Supreme Court's decision in Milner, the court concludes that defendants properly withheld internal telephone numbers pursuant to Exemption 2, noting that "[t]he withholding of internal telephone numbers is generally appropriate, and is appropriate in this particular case as well.'"• Exemption 3: The court concludes that defendants properly invoked Exemption 3 in conjunction with 10 U.S.C. § 424, which "protects 'sensitive identifying information . . . ., including the name, geographic location, and subject matter responsibilities of some of its offices,'" to withhold a Defense Intelligence Agency unit and its location. • Exemption 6: "Considering the fact that [plaintiff] does not challenge Defendants' invocation of Exemption 6 with regard to the withholding of certain individuals' names, and that this Court has previously found that Defendants properly withheld individuals' names in similar circumstances, . . . [the] Court concludes that the names at issue were properly withheld."WEEK OF APRIL 25District Courts1. Madison v. United States, No. 10-742, 2011 WL 1591811 (Fed. Cl. Apr. 28, 2011) (Hodges, J.)Holding: Dismissing plaintiff's FOIA claim for lack of subject matter jurisdictionJurisdiction: The court holds that it lacks jurisdiction to hear claims brought under the FOIA. 2. Islamic Shura Council of S. Cal. v. FBI, No. 07-1088, 2011 WL 1576476 (C.D. Cal. Apr. 27, 2011) (Carney, J.)Re: Request for records pertaining to any FBI investigation or surveillance of plaintiffs; at issue is a remand from the Ninth Circuit concerning the government's challenge to the district court's sealed, ex parte order Holding: Vacating court's previous ex parte, sealed order in its entirety• Litigation considerations/summary judgment: The district court, in response to a remand from the Ninth Circuit, vacates the court's prior sealed, ex parte order to make all the contents of the order public. The court finds that "[a]lthough the FOIA allows the Government to withhold certain categories of documents from requestors such as Plaintiffs pursuant to statutory exemptions, 5 U.S.C. § 552(b), or exclusions, 5 U.S.C. § 552(c), the FOIA does not permit the Government to withhold responsive information from the Court." The court notes that its prior order "reflect[ed] the Court's erroneous understanding of the facts of this case" based on defendants' initial representations and, accordingly, vacates the order in its entirety. With respect to the parties' cross-motions for summary judgment, the court holds that "Plaintiffs are not entitled to any further information regarding the Government's previous searches for documents, and the Government does not need to conduct any additional searches for responsive documents." Additionally, the court advised plaintiffs that "the Government located more documents responsive to their FOIA request," but notes that "disclosing the number and nature of the documents the Government possesses could reasonably be expected to compromise national security." The court holds that "[f]or this . . . reason, the Government does not have to confirm or deny whether any of the Plaintiffs is a subject or material witness in any criminal investigation." 3. Jacobs v. BOP, No. 09-2134, 2011 WL 1576013 (D.D.C. Apr. 26, 2011) (Wilkins, J.)Re: Requests for records pertaining to prices charged for commissary items at a federal prison; plaintiff's placement in a special housing unit; and his prison transportHolding: Granting defendant's renewed motion for summary judgment, and denying plaintiff's request for court fees and costs• Litigation considerations: The court treats as conceded defendant's renewed motion for summary judgment where plaintiff failed to file a timely opposition or request an extension and the court had advised him of his obligation to do so. • Litigation/fees & costs: The court denies plaintiff's request for reimbursement of his fees and costs associated with litigating this case. As an initial matter, the court notes that BOP claimed that it "received the requests only after this litigation commenced." Plaintiff produced certified mail receipts demonstrating that he had submitted the FOIA requests prior to initiating the instant action. The court finds that BOP's "response to the requests reasonably can be considered 'a voluntary or unilateral change in position by the agency' after a lawsuit was filed." However, under the entitlement prong, the court ultimately finds that plaintiff is not entitled to court fees and costs because his claim is insubstantial. First, the court finds that the information sought was for plaintiff's "personal use only." Second, the court notes that although "[i]t does not appear that plaintiff derives a commercial benefit from the requested records, [there is likewise no showing] that the public benefits in any way from their release." Lastly, the court comments that "if the BOP had no record of receipt of the requests, it hardly is surprising that it failed to respond promptly." 4. Honeywell Tech. Solutions, Inc. v. Dep't of the Air Force, No. 05-1772, 2011 WL 1595161 (D.D.C. Apr. 19, 2011) (Hogan, J.)Re: Reverse-FOIA suit; plaintiff seeks to enjoin the Air Force from disclosing certain information pursuant to a FOIA request pertaining to a contract between the two parties Holding: Remanding the case, in part, for the Air Force to consider plaintiff's arguments regarding substantial competitive harm with respect to certain documents; granting plaintiff's motion for summary judgment, in part, as to a record for which it demonstrated that substantial competitive harm would likely result from its release; holding in abeyance plaintiff's motion to strike declaration filed by the Air Force• Standard of review: "The Court reviews this case under the Administrative Procedures Act, and will set aside the agency's decision if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'" • Exemption 4/voluntary or required submission: As an initial matter, the court notes that "[t]he parties do not dispute that the contested information is 'commercial or financial' information, or that [plaintiff, as the submitter of commercial information,] is a 'person' within the meaning of Exemption 4." Because plaintiff submitted the information at issue as part of a bidding process for an Air Force contract, the court finds that "the contested information is generally governed by the National Parks standard [as a required submission] unless some specific exemption applies." Although acknowledging that "there is precedent in this Circuit for treating certain information submitted as part of a bid for a government contract as voluntarily submitted while treating accompanying information as involuntarily submitted," the court finds that based upon the existing record, it cannot determine whether the Request for Proposal (RFP) associated with the particular contract in question "required the submission of [certain] 'non-core' work solutions" as part of the bidding process. As such, the court orders the parties to file the RFP "for its consideration before [it] rules on whether the RFP required submission of 'non-core' work solutions." • Exemption 4/impairment prong: Applying the National Parks test to the records at issue, the court rejects plaintiff's claim that "if the information being sought is released, it would likely impair the government's ability to obtain similar information in the future." The court finds that "nothing in the record indicates that the Government ever assured [plaintiff] that this information could not or would not be released pursuant to a FOIA request" and notes that "as a large government contractor, [plaintiff] surely was aware that courts have authorized release of similar information in other FOIA cases." Moreover, the court finds "the claim that [plaintiff] would abjure the opportunity for a multi-million-dollar contract to avoid a FOIA disclosure strains credibility" and notes that plaintiff maintained "inconsistent positions" as to "the likelihood that [it] would not have produced the information to the government under these circumstances." The court also indicates that plaintiff failed to present "evidence that it or any other government contractor has withheld such information for fear of FOIA disclosure." Lastly, the court comments that if plaintiff "could successfully invoke the government-impairment prong with conclusory and unintuitive statements as those offered here, it could transform the prong into a de facto prohibition on disclosure."• Exemption 4/substantial competitive harm prong/actual competition: In terms of the demonstrating substantial competitive harm, the court concludes that despite the Air Force's arguments to the contrary, plaintiff faces "actual competition" in the marketplace. For one, the court determines that plaintiff "need only present evidence that it faces competition regarding the types of services offered under the Contract," rather than showing actual competition with respect to this particular contract. The court finds that plaintiff's evidence that it faces competition in connection with four upcoming contracts that likely "involve similar if not identical services as those offered under the [instant] Contract" is sufficient to demonstrate actual competition. Moreover, the court notes that "because the . . . Contract [at issue] is such a comprehensive contract, it is reasonable to assume that some of the myriad services offered thereunder would be relevant to some other upcoming government contract." Moreover, "the Court is mindful that a group representing [plaintiff's] major competitors is apparently behind the FOIA request at issue here." • Exemption 4/substantial competitive harm prong: Concluding that the "record suffers from a frustrating ambiguity, i.e., what [plaintiff's] arguments were, and to what arguments the Air Force reasonably thought it was responding," the court identifies in plaintiff's submissions "three possible theories" as to why certain technical and financial information is sensitive. Namely, the court notes that plaintiff may be arguing that the technical and financial information is sensitive because it reveals "how work is being done," "how [plaintiff] allocates resources," or "granular cost elements." The court notes that Air Force only responded to the third argument and that "if the Court credits [plaintiff] with having made Arguments 1 and 2, the Court could find that the Air Force did not meet its burden in rebutting those arguments." The court, however, notes that "'the evidence must be analyzed in the light most favorable to the non-movant [Air Force], with all justifiable inferences drawn in [its] favor'" and, accordingly, "remands the case to the Air Force so that the Air Force may clarify its position as to what it considers [plaintiff's] arguments to be, and to respond to Arguments 1 and 2 to the extent that it feels that [plaintiff] raised them in the existing record." Additionally, the court awards summary judgment to plaintiff enjoining the Air Force from releasing in response to the pending FOIA request, a certain "section" reflecting plaintiff's "'strategic approach'" that would afford insight into how to structure award fee plans because disclosure would likely result in competitive harm. The court finds that the Air Force "does not rebut the substance of [plaintiff's] argument" that "on its face the information's structure is sensitive and can be copied by competitors to [plaintiff's] detriment." Litigation considerations/Motion to strike: The court holds in abeyance plaintiff's motion to strike one of the declarations submitted by the Air Force. Plaintiff argues that the declaration "improperly supplements the existing administrative record with 'a post-hoc explanation of the Air Force's decision that is not reflected in the Air Force's [earlier] decision letter.'" The court concludes that [it] needs "a complete and legible version of the [Request for Proposal]" before it determines whether the declaration merely explains the original record or whether it contains new rationalizations, which would be impermissible.
#> 3 Summaries of New Decisions - May 2011 As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, the cases are broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these cases summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.WEEK OF MAY 2 Courts of Appeal 1. Watkins v. U.S. Bureau of Customs & Border Protect., No. 09-35996, 2011 WL 1709852 (9th Cir. May 6, 2011) (Walter, J.)Re: Requests for CBP's Notices of Seizure of Infringing Merchandise from various commercial portsHolding: 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• Standard of review: The Ninth Circuit applies a two-step standard of review for FOIA cases. First, it determines "whether, de novo, 'an adequate factual basis exists to support the district court's decisions'" and, second, it then reviews "the district court's conclusions of fact for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo." • Exemption 4 (threshold): The Ninth Circuit holds that Exemption 4 applies to the information in question, but nevertheless concludes that the government waived its ability to assert the exemption by disclosing the Notices of Seizure to trademark owners without placing limits on dissemination. As an initial matter, the Circuit rejects plaintiff's argument that "the information contained in the Notices of Seizure cannot be commercial because it pertains to 'the unlawful importation of counterfeit goods, and not any sort of legitimate commercial activity.'" The Circuit instead agrees with the district court that the notices are not "final determinations that goods seized are counterfeit," but rather are "akin to a finding of probable cause," which are subject to administrative and legal challenge by the importer. As such, the Circuit finds that it "cannot conclude that information contained in a Notice of Seizure is non-commercial just because it's likely – perhaps even very likely – that the merchandise seized is counterfeit," but, rather, holds that "the district court's finding that the Notices contain plainly commercial information, which discloses intimate aspects of an importer's business such as supply chain and fluctuations of demand for merchandize, is well-supported." • Exemption 4 (substantial competitive harm): The government "conceded that importers are mandated to provide" the requested information. As preliminary issue, the Circuit finds that, despite plaintiff's claims that defendants failed to specify a relevant market with respect to identifying actual competition for Exemption 4 purposes, the request itself "established the relevant market as the entire market for imported goods." The Circuit then finds that "the Agency's affidavits provide a sufficient factual basis for the district court to conclude that the disclosure of the information in the Notices of Seizure poses a substantial likelihood of competitive injury to importers of non-counterfeit goods who zealously guard their supply chains." Moreover, "[c]ombine this information with already public information and importers' entire distribution network and demand trends could be revealed." Accordingly, the Circuit concludes that "[t]he district court was not clearly erroneous in its finding that the information was confidential and privileged" and, therefore, finds that "Exemption 4 applies to Notice of Seizure." • Waiver/public domain test: Although the Ninth Circuit finds that requested information qualifies for protection under Exemption 4, it ultimately determines that "CBP waived the confidentiality of the Notices by disclosing them to trademark owners without any further limits on dissemination." The Circuit notes that while 19 U.S.C. § 1526(e) requires "disclosure of the Notices of Seizure to an aggrieved trademark owner," the government does not place limits on disclosure and, accordingly, the trademark owner can "freely disseminate the Notice to his attorneys, business affiliates, trade organizations, the importer's competitors, or the media in a way that would compromise the purportedly sensitive information about an impending importer's trade operations." While the Circuit considered the "public domain" test articulated by the D.C. Circuit for the purposes of ascertaining waiver, it finds that most cases applying this test deal with "requests for sensitive information involving high-level criminal investigations or matters of national security," which are not at issue in this case. In a case such as this one, "[t]aken to its logical extreme, the 'public domain' test would still shield commercial information under Exemption 4 even if CBP or an aggrieved trademark owner opened up the phonebook and faxed a copy of a seizure notice to every importer in the region, provided the disclosures were not preserved in some public record." Accordingly, the Circuit concludes that "[w]hile the public domain test will be persuasive in most cases, it does not reach the concerns of confidentiality in circumstances like those presented in this case" and "[t]herefore, when an agency freely discloses to a third party confidential information covered by a FOIA exemption without limiting the third-party's ability to further disseminate the information then the agency waives the ability to claim an exemption to a FOIA request for the disclosed information." • Adequacy of agency declarations: 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.'" • Fee calculations: The Ninth Circuit reverses the district court's decision that DHS's FOIA fee regulations apply to the requests, rather than CBP's regulations. DHS's FOIA regulations "apply to all components of DHS (which includes CBP)," "'[e]xcept to the extent a Department component has adopted separate guidance under the FOIA.'" CBP has separate fee provisions and the Circuit finds that since the time that it promulgated the regulations, "CBP has continued to keep these regulations active by amending them and never repealing them." Moreover,"[r]egardless of the district court's assertion that the revisions were merely technical . . . , they were revisions that demonstrate that the fee regulations are still valid." Accordingly, the Circuit holds that CBP's regulations control and not those of DHS. 2. Furrow v. BOP, No. 10-1628, 2011 WL 1740067 (7th Cir. May 4, 2011) (unpublished disposition)Re: Request for plaintiff's prison file Holding: Vacating district court's decision dismissing the action on mootness grounds; and remanding for further proceedings• Summary judgment/mootness: The Seventh Circuit vacates the decision of the district court dismissing the case on mootness grounds and remands the case for further proceedings. Contrary to the district court's finding that "the agency 'provided [plaintiff] or made available to him for his inspection all the agency records he requested, except for those which [he] does not contend have been improperly withheld,'" the Circuit concludes that the record demonstrates that "a case or controversy remains" because plaintiff alleges that "the agency has not provided everything [he] wants, and he disputes the validity of the exemptions the BOP claims." The Circuit notes that "BOP did not give the district court any information about the nature of the documents withheld and the exemptions asserted as to each document, nor did the agency take the alternative approach of submitting the undisclosed documents to the court for in camera inspection and evaluation." The Circuit finds that until BOP either substantiates its claims of exemption or turns over all requested records to plaintiff, a "redressable dispute remains between the parties." • In forma pauperis status: The Seventh Circuit notes that "[a]fter [plaintiff] filed his notice of appeal in this litigation, he disqualified himself from proceeding in forma pauperis in future civil litigation by incurring four recent litigation 'strikes' under 28 U.S.C. § 1915(g)" and accordingly, "[a]bsent a showing of imminent danger, [he] must prepay all filing and docketing fees before initiating any new lawsuit or appeal." District Courts 1. Milton v. DOJ, No. 08-242, 2011 WL 1743234 (D.D.C. May 6, 2011) (Roberts, J.)Re: Requests for recordings of prison telephone conversations between plaintiff and othersHolding: Denying BOP's motion for summary judgment without prejudice, finding that although BOP properly invoked Exemption 6 as a basis for withholding certain recordings, it did not satisfy its obligations with respect to segregability • Exemption 6: As an initial matter, the court concludes that the telephone recordings at issue meet the threshold of Exemption 6 because they "consist of information that pertain to particular individuals." In terms of the privacy interests, the court finds that "the '[r]elease of a recording of a telephone conversation can be an invasion of personal privacy.'" As to the public interest, the court determines that "there is no public interest in disclosure of information about private citizens that reveals 'little or nothing about an agency's own conduct.'" Additionally, the court notes that plaintiff "has not articulated any significant public interest in disclosure of the phone records." The court finds that "[i]n the absence of any evidence of government impropriety," plaintiff's claim that the recordings are needed to "support his innocence" only represents a personal interest in the records at issue. The court also rejects plaintiff's assertion that the waiver that he signed "allowing [BOP] to monitor his phone calls . . . implicitly extends to any party who accepted his calls." The court notes that plaintiff "has not produced Privacy Act waivers from the individuals with whom he spoke on the telephone" or other evidence of waiver, and concludes that "[n]o uncorroborated surmise that the persons he called necessarily would have heard a recorded warning that the calls were being monitored or recorded should suffice to replace a written Privacy Act waiver." Accordingly, the court holds that "[b]ecause the privacy interest is more than de minimis, the Department of Justice's withholding under Exemption 6 was proper." • Segregability: The court concludes that BOP's "affidavit provides no basis for concluding that the Department of Justice cannot segregate non-exempt portions of [the telephone recordings]." The court finds that "[i]t is unclear whether the Department of Justice is claiming that no technology or program exists for editing or modifying [these recordings], whether the Department of Justice merely lacks that technology, or whether it is impossible to segregate the files for some other reason." Moreover, "the generalized assertion that efforts to segregate calls are difficult because individuals may interrupt each other on the phone and because segregated portions of the calls may lack context is a conclusory claim that is insufficient to demonstrate that there are no portions of these calls that are reasonably segregable." The court affords BOP time to file a renewed motion for summary judgment.2. Carson v. SEC, No. 09-615, 2011 U.S. Dist. LEXIS 46974 (E.D. Tenn. May 2, 2011) (Phillips, J.)Re: Allegation that defendant failed to timely respond to request for records Holding: Dismissing plaintiff's complaint as moot• Mootness: The court holds that "[a]s petitioner's complaint challenges only the tardiness of the SEC's response to his FOIA request, his claim was rendered moot by the agency's [subsequent] response that no responsive documents could be located." "Because the petitioner has already obtained all the relief that he seeks in his complaint, there is no live controversy for this court to adjudicate."3. Carson v. DOJ, No. 10-56, 2011 U.S. Dist. LEXIS 47033 (E.D. Tenn. May 2, 2011) (Phillips, J.)Re: Allegation that defendants failed to timely respond to requests for records demonstrating DOJ's compliance with 5 U.S.C. § 2302(c) Holding: Dismissing plaintiff's complaint as moot• Mootness: The court concludes that petitioner's complaint "was rendered moot by the agency's responses" where plaintiff's complaint only alleges that three DOJ components failed to timely respond to his FOIA requests. The court further notes that "[p]etitoner has submitted no evidence to suggest that any of these agencies was not acting in good faith regarding the attention given to this requests or the time of the responses." 4. Carson v. U.S. Office of Special Counsel, No. 10-57, 2011 U.S. Dist. LEXIS 46951 (E.D. Tenn. May 2, 2011) (Phillips, J.)Re: Allegation that defendant failed to timely respond to request for records demonstrating Office of Special Counsel's compliance with 5 U.S.C. § 2302(c) Holding: Dismissing plaintiff's complaint as moot• Mootness: The court concludes that petitioner's complaint was rendered moot where it "challenges only the tardiness of OSC's response to his FOIA request," and, subsequent to the filing of this suit, OSC "released in full all records responsive to his request." The court notes that "[t]here is nothing more OSC can do to respond to petitioner's FOIA request, and the relief he seeks through his complaint has been fully provided." 5. Muset v. Comm'r Ishimaru, No. 07-4083, 2011 U.S. Dist. LEXIS 47587 (E.D.N.Y. Apr. 30, 2011) (Vitaliano, J.)Re: Requests for records related to IRS's sanction of plaintiffHolding: Dismissing plaintiff's FOIA claim as moot as to the records released by IRS and dismissing for lack of subject matter jurisdiction as to the withheld documents due to plaintiff's failure to exhaust his administrative remedies• Mootness: The court finds that plaintiff's "claim for relief under FOIA [based on agency delay] became moot when he received the requested documents" after the action was filed.• Exhaustion of administrative remedies: The court finds that "as a matter of FOIA process" that plaintiff "was required first to appeal directly to the IRS before seeking federal judicial relief" and that his "failure to exhaust the administrative remedies provided by FOIA divests a federal district court of subject matter jurisdiction over any claim regarding that request for judicial relief." 6. Penn v. DOJ, No. 10-2494, 2011 WL 1627343 (E.D. Cal. Apr. 28, 2011) (Brennan, Mag.) Re: Requesting leave to amend complaint to add FOIA claims against various California State entities and for appointment of counselHolding: Denying without prejudice plaintiff's motion for leave to amend his complaint and his request for appointment of counsel • Amending the complaint/proper party defendant: The court denies plaintiff's leave to amend his complaint to add additional state entities without prejudice, but notes that "because the proposed new defendants are not 'agencies' within the meaning of FOIA, it appears amendment to state a FOIA claim against those defendants would be futile." • Appointment of counsel: "The court cannot conclude that plaintiff's likelihood of success, the complexity of the issues, or the degree of plaintiff's ability to articulate his claims amount to exceptional circumstances justifying the appointment of counsel [pursuant to 28 U.S.C. § 1915(e)(1)] at this time."WEEK OF MAY 9 District Courts 1. Kottori v. FBI, No.10-11913, 2011 WL 1827673 (D. Mass. May 13, 2011) (Bowler, Mag.)Re: Request for records that the FBI "requires her to have in order to release her from detention"Holding: Dismissing the complaint for lack of subject matter jurisdiction based on plaintiff's failure to exhaust her administrative remedies • Exhaustion of administrative remedies: The court dismisses the complaint for lack of subject matter jurisdiction, concluding that plaintiff failed to exhaust administrative remedies where "neither FBI headquarters nor the FBI's Boston field office have received any document requests from plaintiff" and "[p]laintiff has not offered any evidence to the contrary." The court notes that "by failing to submit a FOIA request, plaintiff never began the FOIA administrative process and thus cannot show that she has exhausted all administrative remedies." WEEK OF MAY 16 District Courts 1. ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 1900140 (W.D. Wash. May 19, 2011) (Lasnik, J.)Re: Request for records describing the operation and maintenance of the National Crime Information Center's Violent Gang and Terrorist Organization File (VGTOF)Holding: Granting, in part, and denying, in part, defendants' motion for reconsideration; permitting government to supplement its Vaughn index with respect to certain withholdings prior to reviewing the contested documents in camera; and concluding that defendants provided an insufficient basis for withholding certain information pursuant to Exemption 7(E)• Exemption 7(E): The court orders defendants to provide additional justification for withholding non-public "information describing suspicious indicators that law enforcement officers should look for when attempting to detect possible terrorist activity" under Exemption 7(E). The court also finds that defendants' description of the nature of "procedures [that] the Terrorist Screening Center ('TSC') follows once the identity of a known or suspected terrorist has been confirmed by reference to the Violent Gang and Terrorist Organizations File ('VGTOF')" "is cryptic and sparse." The court concludes that defendants failed to provide "'a particularized explanation of how disclosure of the particular document would damage the interest protected by [Exemption 7(E)]" and did not describe how the disclosure of the document would "give rise to a reasonable expectation that identifying the agencies that follow up on a positive VGTOF response will thwart law enforcement." With respect to a government form used "to supply information regarding individuals for entry into VGTOF," the court rejects defendants' arguments that "disclosure of the minimum level of interest or investigative status necessary for inclusion in the VGTOF will be detrimental to national security." The court notes that "[a] positive VGTOF response is not disclosed to the individual" and that "a person who already suspects or affirmatively believes that he is on the VGTOF watchlist has all the incentive he needs – or is likely to get – to conceal illegal activities, destroy evidence, and/or modify his behavior." Accordingly, the court finds that "[t]he agency has not shown that disclosure of additional criteria for entry in the VGTOF could reasonably be expected to risk circumvention of the law under Exemption 7(E)." • Exemption 3: The court agrees to consider Transportation and Security Administration's (TSA's) objection to releasing portions of a government form that TSA claims "is protected from disclosure under Exemption 3 based on the agency's determination that the criteria for placement on the No Fly and Selectee Lists is sensitive security information ('SSI') under regulations promulgated pursuant to 49 U.S.C. § 114(r)." The court notes that although TSA's involvement in the case is belated, "because final judgment has not yet been entered in this manner, the agency's failure to refer plaintiff's FOIA request to TSA does not appear to have been tactical, and the interests asserted by TSA are weighty, the Court will consider the applicability of Exemption 3." As such, the court orders defendants to provide further justification for withholding the portions of the government form.• Exemption 7(D): The court allows defendants additional time to substantiate their assertion that information contained on a government form and related documents that would "reveal the names of foreign partners which share and exchange information with TSC" is protected pursuant to Exemption 7(D). 2. Larke v. Dep't of Revenue Child Support, No. 10-12148, 2011 WL 1877684 (D. Mass. May 17, 2011) (Tauro, J.) Holding: Dismissing plaintiff's claim brought under 42 U.S.C. § 1983 alleging that an attorney representing a state agency violated the FOIA by failing to release public records upon request • Proper party defendant: The court determines that "[p]laintiff's § 1983 claim against [an attorney who represented a state agency] fails because Plaintiff has failed to allege that [the attorney], acting under color of state law, deprived plaintiff of a federal right." The court finds that even if, as plaintiff alleges, the attorney did not release public records in response to his request, her "conduct could not have violated the FOIA because neither [the state agency] nor [the attorney] is subject to the FOIA." The court concludes that "[t]he FOIA does not apply to state agencies or their employees," but "[r]ather, the FOIA 'applies only to federal executive branch agencies.'" 3. Espino v. DOJ, No. 11-0909, 2011 WL 1841918 (D.D.C. May 16, 2011) (Huvelle, J.) Re: Request to the Superior Court of the District of Columbia for certain DNA testsHolding: Granting pro se prisoner's application to proceed in forma pauperis; and dismissing the case because complaint fails to meet the minimal pleading requirements of Federal Rule of Civil Procedure 8(a)• Litigation considerations/jurisdiction: The court dismisses plaintiff's complaint because it fails to meet the requirements of Federal Rule of Civil Procedure 8(a) which necessitate "'(1) a short and plain statement of the grounds for the court's jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief." Here, "[t]he instant complaint neither references a FOIA request number nor contains any other information, e.g, a copy of the actual request allegedly submitted to DOJ, from which a FOIA request may be reasonably identified." Accordingly, the court holds that the complaint "fails to provide adequate notice of a claim and grounds for federal court jurisdiction." WEEK OF MAY 23 District Courts 1. Daley v. Ct. Rep. Records, No. 10-313, 2011 WL 2110304 (D. Del. May 26, 2011) (Stark, J.)Re: Request for various records related to a seizure in connection with plaintiff's criminal case Holding: Dismissing complaint of pro se prisoner as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B) • Litigation considerations: The court dismisses the complaint of a pro se plaintiff pursuant to 28 U.S.C. § 1915(e)(2)(B). The court finds that plaintiff's complaint is a "malicious filing" because it duplicates a previously litigated action, which the Third Circuit concluded was time-barred. The court notes that the instant complaint "realleges a previously litigated issue seeking discovery, changing only the legal theory, which is now to assert a claim under the Freedom of Information Act" and further comments that "[n]o facts are provided as to how, when, or where [plaintiff] allegedly sought discovery from the named defendants." Additionally, the court determines that the claims alleged in the complaint "do not support any of the conditions required for [the] mandamus relief" requested by plaintiff. 2. Bundu v. S.C. FBI, No. 10-2004, 2011 WL 2066545 (D.S.C. May 26, 2011) (Childs, J.) Holding: Adopting magistrate's recommendation and dismissing plaintiff's complaint without prejudice • Litigation considerations: The court dismisses plaintiff's complaint on the basis that he "has failed to state a claim upon which relief can be granted as to the alleged violations of [the FOIA]." The court finds that plaintiff failed to plead sufficient facts to support his claim where he "merely asserts that he used the Freedom of Information Act to request information, first in 2006 and again in 2009, and that his request was denied on both occasions." Notably, "[h]e fails to explain, for example, what information he sought, the person or agency from whom he requested it, that person's or agency's basis for denying his requests, or what specific damages he suffered as a result of the denials." 3. Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL 2038735 (D.N.J. May 25, 2011) (Simandle, J.) Re: Request for records pertaining to co-defendant associated with plaintiff's criminal case, who was later dismissed from the indictment by federal prosecutors Holding: Granting defendants' motion for summary judgment with respect to an individual government employee named in the complaint as well as for any unexhausted FOIA requests; and ordering defendants to show cause as to why the matter should not be remanded to the agency to process plaintiff's request• Proper party defendant: The court dismisses complaint against a government employee because "'[a] plaintiff may not assert a FOIA claim against individual federal officials.'" • Jurisdiction: The court grants defendants' motion for summary judgment "with respect to Plaintiff's Complaint to the extent it seeks review of the propriety of unexhausted FOIA requests." The court concludes that its "jurisdiction is limited to circumstances in which an agency has withheld requested information" and, accordingly, finds that "[t]o the extent Plaintiff now seeks documents beyond those sought in his exhausted FOIA requests . . . he must first file the proper request with the agency." • Exemptions 6 & 7(C) (categorical withholding): The court rejects defendants' argument that records pertaining to a third-party who was dismissed by federal prosecutors from plaintiff's criminal case are categorically exempt from disclosure pursuant to Exemptions 6 and 7(C). Referencing the Supreme Court's decision in Reporters Committee, the court finds that "[h]ere, Defendants attempt to exclude from production a much broader category of documents than any previously recognized categorical exception under Exemption 6 or 7(C)." The court finds that "the mere fact that a document contains information related to a private individual does not mean it contains private personal information, much less that it can categorically be reasonably expected to constitute an unwarranted invasion of personal privacy." Citing an "extreme" hypothetical, the court opines that "suppose that the Department of Justice had a memorandum explaining their discovery that no such individual exists, and that the indictment was mistaken." In such a case, the court comments "[t]his document would not be exempt from disclosure on the basis that it revealed [the third party's] private information even though it would be responsive to Plaintiff's request." Moreover, the court notes that "[e]ven in more plausible circumstances, some responsive documents may contain no private information about [the third party] (for example, a document stating the agency's belief that, based on the allegations in the superseding indictment, the United States lacks jurisdiction over [him])." Moreover, the court finds that "even if such documents contained more information about [the third party] than in the above suppositions, the balance may not inexorably tip toward privacy; the individual in question in this case was indicted for a serious federal crime, as contrasted with some mere witness or person of interest who was not charged." The court finds that "[t]here may be a heightened public interest in learning about the government's conduct with respect to a criminal defendant and a diminished expectation of personal privacy residing in the accused." Additionally, the court notes that if the Supreme Court had intended to "exempt all documents with information related to private individuals" without further analysis, the Court in Reporters Committee, "could have simply observed that the claimants sought information about a particular private individual," rather than "perform[ing] a lengthy examination of whether the aggregation of information in a 'rap sheet' made the record one that contains private information." As such, the court orders "the remaining Defendant to show cause why the Court should not remand Plaintiff's original, exhausted FOIA request to the Department of Justice so that the agency may review it in light of this Opinion and determine what documents, if any, must be produced for Plaintiff, with any exemption to be claimed with specificity." 4. Tchefuncta Club Estates v. U.S. Army Corps of Eng'nrs, No. 10-1637, 2011 WL 2037667 (E.D. La. May 24, 2011) (Africk, J.) Re: Request for applications for permits filed by two separate companiesHolding: Denying plaintiff's motion for attorney fees and litigation costs• Attorney fees and costs/eligibility: The court denies plaintiff's request for attorney fees and litigation costs, concluding that plaintiff is not eligible for such an award because it "is unable to show a change in position by the agency." The court finds that "the fact that plaintiff received some of its requested documents following a change in circumstances does not evidence a change in position by the agency." Rather, the court notes that "[f]rom the outset, [defendant] has maintained that pursuant to FOIA Exemption 4, prior to the issuance of a permit, it will not release the needs analysis sections which, according to the applicants' objections, contain trade secrets and/or proprietary confidential information," but that upon "issuing of a permit, the application, including the needs analysis section, becomes a public record and FOIA Exemption 4 becomes moot." The court observes that defendant, in fact, followed this procedure – releasing the one company's application once the permit issued, and withholding another company's application where the permit had not been issued. 5. McLeod v. DOJ, No. 11-958, 2011 WL 2112477 (D.D.C. May 24, 2011) (Huvelle, J.) Re: Petition for mandamus relief, or in the alternative, declaratory judgment and injunctive relief seeking to compel DOJ and EOUSA to release certain records related to a federal public corruption investigation and to disclose exculpatory evidence relevant to petitioner's criminal prosecution in state court Holding: Granting petitioner's in forma pauperis application, but dismissing petition pursuant to 28 U.S.C. § 1915A• Litigation considerations: As a preliminary matter, the court notes that it "may not entertain an action for such extraordinary remedies as a writ mandamus or a declaratory judgment if another adequate remedy is available." The court notes that here the FOIA "is the proper vehicle for obtaining records from United States agencies." Accordingly, "[b]ecause there is no indication from the petition that petitioner has made a FOIA request to DOJ or EOUSA for the records he seeks, the Court finds that he has stated no claim upon which relief may be granted." The court therefore dismisses petitioner's mandamus petition pursuant to 28 U.S.C. § 1915A.6. Raher v. BOP, No. 09-526, 2011 WL 2014875 (D. Or. May, 24, 2011) (Stewart, Mag.) Re: Request for records pertaining to BOP's solicitations, evaluation and award of contracts to provide, maintain and operate private detention facilities for foreign nationals serving criminal sentences imposed by federal courtsHolding: Granting, in part, plaintiff's motion for summary judgment with respect to records withheld under Exemptions 3, 7(E) and 7(F) and certain records withheld pursuant to Exemption 4; concluding that an evidentiary hearing is necessary to resolve a factual dispute with respect to certain records withheld under Exemption 4; and ordering that BOP supplement the record with regard to its search for certain documents • Exemption 2: In light of the Supreme Court's decision in Milner v. Department of the Navy, the court finds that "BOP cannot rely on the High 2 Exemption to withhold any of its documents, and [plaintiff] is granted summary judgment as to Exemption 2." The court notes, however, that "BOP has now taken appropriate action to produce documents withheld based solely on the High 2 Exemption." • Exemption 3: The court finds that BOP improperly asserted Exemption 3 in conjunction with the National Defense Authorization Act for Fiscal Year 1997, 41 U.S.C. § 253b(m), and the Federal Procurement Policy Act, 42 U.S.C. § 423(a) and (f) to withhold certain technical proposal records associated with the requested contracts. As an initial matter, the court notes that "[t]he parties do not dispute that § 423 [generally restricting disclosure of contractor bid, proposal information, or source selection information before award of a contract] and § 253b(m) [prohibiting disclosure of contractor proposals that are not incorporated into a contract with an agency] are statutes which leave no discretion as to the matters to be withheld." Reviewing the statutory text, implementing regulations, and the case law associated with § 423, the court concludes that "Exemption 3 does not protect bid or proposal information from disclosure postaward based on § 423 and its implementing regulations unless it 'pertains to another procurement or is prohibited by law.'" Because "[n]one of the documents requested by [plaintiff] pertain to another procurement," the court looks to § 253b(m) to ascertain whether "they are 'prohibited by law' from disclosure." The court then concludes that § 253b(m) "does not bar disclosure of documents incorporated by reference in awarded contracts." Accordingly, the court concludes that, to the extent that BOP asserted Exemption 3 to withhold documents incorporated by reference into awarded contracts, "then such documents must be released unless protected by some other FOIA Exemption." Moreover, "[s]ince [plaintiff] seeks disclosure only of successful proposals, BOP also cannot invoke Exemption 3 to withhold those documents and must rely on one of the other FOIA exemptions."• Exemption 7 (threshold): Citing Justice Alito's concurring opinion in Milner, the court opines that "after Milner, it is unclear whether BOP still qualifies as a law enforcement agency," noting that "[n]othing in the record reveals that BOP has any apprehension, crime detection or crime prevention duties beyond its custodial duties." Acknowledging that BOP's "primary purpose is to maintain security by housing prisoners, some of whom have been convicted of violent crimes," the court concludes that "[a]t best, BOP has both administrative and law enforcement functions and, thus, must demonstrate that each withheld document was compiled for law enforcement purposes." • Exemption 7(E): With respect to Exemption 7(E), the court finds that "[a]lthough BOP has shown that disclosure of information pertaining to 'security electronics,' 'security inspection system,' and staffing vulnerabilities raises security concerns with respect to its custodial functions, it has submitted nothing to explain why the withheld documents pertain to law enforcement functions that are protected from disclosure under Exemption 7(E)." The court notes that assuming "BOP qualifies as a law enforcement agency and compiles the requested records for the law enforcement purpose of maintaining security, it must still show that the withheld records are techniques, procedures or guidelines for 'law enforcement investigations or prosecutions' covered by Exemption 7(E)." Because BOP has failed to make such a showing, the court "grant[s] summary judgment to plaintiff as to Exemption 7(E)." • Exemption 7(F): The court holds that BOP "may rely on Exemption 7(F) to withhold information in the technical proposals . . . pertaining to physical security plans, blue prints, architectural floor plans, door and key lock specifications, ceiling plans, and any information regarding the internal physical structure of a BOP correctional facility." However, the court finds that BOP's justifications for withholding other information under Exemption 7(F), including "'staffing patterns,' 'institution operations,' 'offender accountability techniques,' and 'institution accountability techniques,'" was "simply too general to allow [plaintiff] or this court to test the validity of BOP's redactions." The court points out that "BOP publishes many of its internal policies pertaining to institutional security and inmate programs and services in full on its publicly accessible webpage" and that "[a]ny inmate or visitor to a BOP facility is able to observe 'staffing patterns' and certain 'institutional operations.'" Moreover, the court finds that "BOP has not bothered to describe 'offender accountability techniques' or 'institution accountability techniques' and those phrases convey nothing about security concerns." Additionally, the court comments that "the problem is exacerbated" by BOP's failure to demonstrate that it has segregated nonexempt information. Accordingly, the court grants summary judgment to plaintiff for those items that it deemed not protected by Exemption 7(F), but "[i]n order to prevent the public release of potentially damaging information to BOP's security concerns," the court determines that "BOP may release such information pursuant to a protective order that prohibits disclosure by [plaintiff] to anyone else without prior BOP or court approval." • Exemption 4/voluntary or required submission: At the outset, the court notes that it had previously concluded that "the submitters [in this case] did not voluntarily provide information to BOP, but instead provided it as a mandatory requirement of compliance with the [Criminal Alien Requirement (CAR)] procurement process." Consequently, "the only issue is whether the disclosure is likely to cause substantial harm to the competitive position of the providers of the information." • Exemption 4/submitter notice: The court holds that because BOP first processed the records, redacting information it believed to be exempt and then sent those redacted versions to the submitters, the absence of objections from some submitters "can only be interpreted to mean that they concurred with BOP's proposed redactions." Thus, "BOP may invoke Exemption 4 as to information received from all five submitters despite the lack of objection by some of them." • Exemption 4/substantial competitive harm prong/actual competition: Based on declarations submitted by BOP, one of the submitters, and plaintiff, the court determines that "the record continues to show only that a small number of entities meet the solicitation criteria for the CAR procurement process and are capable of supplying BOP with the facilities and services required." Still, the court concludes that "BOP has met its burden of showing the existence of actual competition as required by Exemption 4," noting that plaintiff's declarant, an economist concedes that "the record 'supports the conclusion that prison operators compete in the relevant market, at least some of the time' for CAR contracts and renewals." • Exemption 4/threshold: The court holds that BOP cannot assert Exemption 4 "to categorically exempt all internal price evaluation and source selection decision records which [BOP itself] generated for the purpose of evaluating bids" because this information was "not 'obtained from a person' as required by Exemption 4." Rather, the court finds that "Exemption 4 only protects information contained in those records that was obtained from the submitters, disclosure of which will cause them substantial competitive harm." • Exemption 4/substantial competitive harm: The court agrees with plaintiff that Exemption 4 does not protect documents that are publicly available, but finds that "[i]t is not clear . . . which documents BOP is withholding under Exemption 4 that are otherwise publicly available other than those already obtained by [plaintiff from a local government entity]." However, the court concludes that "[s]imply because [plaintiff] has obtained some documents from elsewhere does not necessarily mean that BOP is required to release all other documents in its possession that contain similar information." Accordingly, "[t]o obtain disclosure of any other documents not already obtained elsewhere, [plaintiff] must submit additional evidence conclusively establishing that those documents are 'freely and cheaply available from other sources.'" The court identifies a number of issues with regard to BOP's decision to withhold the pricing structure contained in the awarded contracts and the proposals from successful bidders. However, the court determines that based on the declaration of one of the submitters, "BOP has created a genuine issue of material fact as to whether a submitter will likely suffer substantial competitive injury if the withheld information is released" and, as such, concludes that "an evidentiary hearing is necessary to determine whether BOP may invoke Exemption 4 to protect pricing information, in particular, activation and staffing schedules and option renewal prices." BOP has not, however, demonstrated that release of "the number of beds awarded by each contract" qualify for protection under Exemption 4. The court observes that "dividing the total price by the number of beds does not reveal the complicated pricing structure of the contract." With respect to past performance records, the court finds that "[n]othing in BOP's or [one of the submitter's] submissions explain why Exemption 4 should protect those portions of past performance documents which are unrelated to pricing information." Accordingly, the court concludes that plaintiff "is entitled to summary judgment as to the past performance records that are narratives and lists of occurrences . . . which clearly are unrelated to pricing." As to technical proposals categorized by BOP as "Institutional Operations," "Contract Activation," and "Physical Plant," the court determines that "BOP has submitted insufficient evidence to satisfy its burden to justify Exemption 4 . . . and [plaintiff] is entitled to summary judgment to that extent." • Adequacy of search: The court directs BOP to supplement the record to establish that it conducted an adequate search with respect to records for which the court had previously ordered it to search. The court finds that "BOP does not explain its storage and retrieval systems, its search methods or the extent of its search."
#> 4 Preferred Formats for 2009 Annual FOIA ReportsAs announced previously, the Open Government Directive, issued December 8, 2009, requires agency Annual FOIA Reports to be published in an open format. Please be advised that the preferred format for the 2009 Annual FOIA Reports is XML or CSV. Agencies should also publish their 2009 Report in the PDF or similar format traditionally used for publishing Annual FOIA Reports.
#> 5 Summary of Agency Chief FOIA Officer Reports with Findings and OIP Guidance for ImprovementIntroductionThis Spring marked the first time that agencies submitted to the Department of Justice Chief FOIA Officer Reports describing the steps taken by each agency to improve FOIA operations and facilitate information disclosure. The Attorney General required submission of these reports as part of his new FOIA Guidelines issued on March 19, 2009. The Office of Information Policy (OIP) has conducted a comprehensive review of all ninety-four Chief FOIA Officer Reports and has prepared this summary. Included in the summary are OIP's findings and guidance to agencies on the next steps that should be taken so that even greater transparency can be achieved in the year ahead.President Obama's FOIA MemorandumIn an unprecedented action that signaled his commitment to the ideals of transparency and openness, President Obama, on his first full day in office, issued a Memorandum to the heads of all Executive Branch Departments and agencies calling on them to "renew their commitment to the principles embodied in FOIA." The President directed all agencies to administer the FOIA with a clear presumption in favor of disclosure, to resolve doubts in favor of openness, and not to withhold information based on "speculative or abstract fears."Moreover, the President called on agencies to ensure that they respond to requests in "a spirit of cooperation," that disclosures are made timely, and that modern technology is used to make information available to the public even before a request is made. To carry out these responsibilities, the President directed the Attorney General to issue new guidelines governing the FOIA. Attorney General Holder's FOIA GuidelinesIn accordance with the President's directive, on March 19, 2009, Attorney General Holder issued new FOIA guidelines which called on all agencies to reaffirm the government's "commitment to accountability and transparency." The FOIA Guidelines stress that the FOIA is to be administered with the presumption of openness called for by the President. The Attorney General strongly encouraged agencies to make discretionary disclosures of information. He also directed agencies not to withhold information simply because they may do so legally. He also directed agencies to consider making partial disclosures when full disclosures are not possible.In his FOIA Guidelines, the Attorney General went beyond addressing the principles applicable to applying the presumption of openness. He also comprehensively addressed the need for each agency to establish an effective system for improving transparency. In doing so, he emphasized that "[e]ach agency must be fully accountable for its administration of the FOIA."Preparation of Chief FOIA Officer ReportsThe Attorney General emphasized that "[i]mproving FOIA performance requires the active participation of agency Chief FOIA Officers." Accordingly, the Attorney General directed agency Chief FOIA Officers to review "all aspects of their agencies' FOIA administration" and to report each year to the Department of Justice on the steps taken "to improve FOIA operations and facilitate information disclosure."The Attorney General charged OIP with responsibility for providing guidance to agencies on the timing and content of Chief FOIA Officer Reports to the Attorney General. Those guidelines were issued by OIP on September 30, 2009. Based on the principles contained in the President's Memorandum on the FOIA and the Attorney General's FOIA Guidelines, OIP asked agencies to report on the steps taken to achieve greater transparency in five distinct areas. Those five areas were: 1) the presumption of openness; 2) effective systems for responding to requests; 3) proactive disclosures; 4) use of technology; and 5) backlog reduction.Set out below is OIP's analysis and summary of the content of agency Chief FOIA Officer Reports. There are a few points to keep in mind when reviewing this summary. Each agency's Chief FOIA Officer Report contains individualized descriptions and often many details about that agency's FOIA administration. All agency Chief FOIA Officer Reports are linked together on OIP's website at http://www.justice.gov/oip/reports.html and can be easily compared and reviewed on that site. In compiling this summary, we necessarily had to choose a discrete number of examples to illustrate agency activities, but for every example included there are many more contained within the agency Reports themselves. Finally, for those agencies that utilize decentralized systems for processing FOIA requests, when a majority of the components for a given agency responded affirmatively to a question, the agency was included in the tally of affirmative responses.Section I. Steps Taken to Apply the Presumption of OpennessThe guiding principle underlying the President's FOIA Memorandum and the Attorney General's FOIA Guidelines is the presumption of openness. To assess the degree to which this presumption was applied by agencies and to measure the level of its impact in the first year of implementation, OIP required agencies to report two separate elements in Section I of their Chief FOIA Officer Reports. First, agencies were asked to describe the steps taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. This was a comprehensive reporting element where agencies could describe a range of activities, from publicizing the President's FOIA Memorandum and the Attorney General's FOIA Guidelines, to implementing the presumption when processing documents responsive to FOIA requests and administrative appeals. Agencies were asked to provide examples illustrating agency action in making discretionary releases of records.The second reporting element required agencies to provide statistics. Specifically, agencies were asked to report whether there were increases in the number of responses where records were released in full or where records were released in part when compared with those numbers in the previous year's Annual FOIA Reports. In conjunction, the responses to these two elements have provided both a description of how agencies are applying the presumption of openness and a measurement of its impact on agencies' responses to FOIA requests.A. Steps Taken to Apply the Presumption of OpennessOIP first examined agencies' Chief FOIA Officer Reports to assess the degree to which each agency had disseminated the President's and the Attorney General's message of openness to agency personnel. Many Chief FOIA Officers reported completing similar steps to ensure that agency personnel received the message. Commonly reported steps included distributing the President's FOIA Memorandum or the Attorney General's FOIA Guidelines, creating agency specific guidance, attending training, or providing agency-specific training. As the chart below indicates, almost all agencies distributed the President's Memorandum or the Attorney General's FOIA Guidelines. More than half attended or provided training on applying the presumption of openness. For example, the Department of Labor held a two-day FOIA conference, attended by nearly three hundred FOIA professionals, which included a session specifically focused on the President's and Attorney General's new presumption of openness. The Department of Labor also developed a webinar for all of its attorneys who have FOIA-related responsibilities, conducted quarterly FOIA meetings in-house, and attended FOIA training provided by the Department of Justice.Other agencies issued guidance on applying the presumption. For example, DHS issued guidance to its many components, stressing the importance of transparency and emphasizing the importance of making proactive disclosures. While larger FOIA programs are more likely to issue their own guidance to reach their many different components, smaller agencies, such as the NRC and the Office of Special Counsel, have found it beneficial for their agencies to issue internal guidance that addresses the complex problems unique to those offices.In addition to these more common steps, thirty-three agencies reported taking additional, agency-specific steps to ensure that the openness message was received. The effort shown by these agencies demonstrated a commitment to tailor the message of openness in order to overcome hurdles unique to those agencies. For instance, SBA and the IRS added language to inter-office communications, such as search memoranda or referral memoranda, to remind personnel in the program offices of the obligation federal agencies have to be more transparent. SSA created internal working groups to help tackle specific FOIA issues that arise while processing their records. Along these same lines, the Department of the Interior has created an "Open Government Core Team," and the Institute of Museum and Library Services has created an "Open Government Task Force" to help implement changes that will increase transparency.Several agencies have changed their document review processes to help ensure that the proper level of transparency is being considered by agency personnel. For example, the Department of Commerce now requires a senior official to certify that a foreseeable harm analysis has been applied to responsive documents. Also, the Department of Education has established a two-level "quality review" of documents that are not initially recommended for full release. This second-level review involves agency personnel examining the documents a second time to ensure that the foreseeable harm standard has been used and that all reasonably segregable information is released. HHS, Centers for Disease Control (CDC) now uses subject matter experts in their review of documents in order to determine if more material can be released as a matter of agency discretion.Further, more than half of the Chief FOIA Officers reported that they were taking steps to ensure that agency personnel were reviewing documents for discretionary release.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTThere are many good examples of agency initiatives designed to implement the President's call for a presumption of openness. Many agencies have actively embraced the new FOIA Guidelines and aggressively made changes, taking steps to ensure that their agencies were applying the presumption of openness. Indeed, more than half of the agencies reported what can fairly be viewed as remarkable progress in this area. For those agencies, their Chief FOIA Officer Reports revealed many examples of steps taken to apply the presumption of openness which demonstrated that the agencies were fully engaged in implementing the new transparency guidelines. To make the President's and Attorney General's goals a reality across the government, all agencies must ensure that they employ active, aggressive approaches to improving transparency at their agencies. A fundamental step that agencies can take to improve transparency is to ensure that over the course of the coming year agency personnel both attend training on the new FOIA guidelines and the presumption of openness and provide such training to key personnel within their agencies. Throughout the year there are numerous training opportunities provided by OIP for agency personnel to attend. In addition, OIP provides specialized training to individual agencies on applying the presumption of openness. While fifty-two of the ninety-four agencies subject to the FOIA reported that their personnel attended training or provided their own training, that figure should be much higher. In order to ensure that every agency is applying the presumption of openness correctly, each agency should require that its personnel, both FOIA and non-FOIA, attend training so they understand the President's message and the Attorney General's FOIA Guidelines on transparency. Agencies should offer guidance that is tailored to the type of records they typically process in response to FOIA requests. Following issuance of the Attorney General's FOIA Guidelines, OIP distributed comprehensive guidance to all agencies on applying the presumption of openness, making discretionary disclosures, establishing systems to identify information for proactive release, and improving timeliness. While many agencies supplemented OIP's guidance with agency-specific directives, all agencies should consider doing so in order to tailor their directives or guidance to address their own agency concerns and obstacles.B. Discretionary DisclosuresIn Section I of their Chief FOIA Officer Reports agencies were asked to include examples or statistics illustrating their action in making discretionary releases of records or portions of records. OIP found that fifty-two of the ninety-four agencies subject to the FOIA reported that they reviewed records for discretionary release.Those agencies that reported conducting this review also reported concrete results. Of the fifty-two agencies that reviewed their documents for discretionary release, thirty-nine reported making discretionary releases. This strong correlation demonstrates that the agencies that took the time to review their documents with a presumption of openness in mind were able to identify additional information that could be released. These additional releases are at the heart of increased transparency.OIP also examined the type of discretionary releases made by agencies. As explained in OIP's guidance issued on April 17, 2009, documents protected by Exemptions 2, 5, 7, 8, and 9 can all be the subject of discretionary release, but Exemption 5 holds the most potential for increased releases. Not surprisingly, agency Chief FOIA Officer Reports showed that discretionary releases were most frequently made of material that fell within the parameters of Exemption 5. Secondly, information that could be protected by Exemption 2 was also released as a matter of discretion. In addition, agencies cited releasing Exemption 7 material as a matter of discretion.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTAgencies should institute a system, or add a step in their processing procedures, to affirmatively consider whether more information can be released as a matter of administrative discretion. The data compiled in the Chief FOIA Officer Reports reveals that when agencies took the time to affirmatively consider whether additional material could be released in response to a request, there was a corresponding increase in the number of discretionary releases made. To ensure that this review is undertaken, each agency should consider adding a distinct step in its processing procedures to consider whether additional material can be disclosed. This step should be employed at both the initial review level and on administrative appeal.C. Increased Releases in Full or in PartLastly, in Section I of their Chief FOIA Officer Reports, agencies were asked to report whether they had increased the number of responses where records were released in full or where records were released in part in Fiscal Year 2009 as compared to Fiscal Year 2008. Overall, departments and agencies combined provided partial grants of requested records for nearly 170,000 requests in Fiscal Year 2009. This is an increase of approximately fifty thousand partial grants of access as compared with Fiscal Year 2008. This is a significant achievement.When OIP examined the statistics for full releases, however, there was a decline in the number. In Fiscal Year 2009, a combined total number of 215,124 full releases were made. This is a decrease of roughly 45,000 as compared with Fiscal Year 2008. Still, the increase in the number of partial releases was significant enough that when full and partial releases were combined, there was an increase in the number of overall responses where records were released.For a more complete analysis, OIP also examined the response totals at each agency. Sixty-one agencies, which is just under two-thirds of the ninety-one agencies subject to the FOIA in both fiscal years1, reported an increase in either the number of full releases or partial releases in Fiscal Year 2009. Of these agencies, fifty-two had an increase in partial releases while forty had an increase in the number of full releases. Thirty-one agencies were able increase both their number of full releases and their number of partial releases.Several agencies reported significant improvement in the numbers of releases made. DHS, for example, had an increase in both releases in full and releases in part by over 5000 requests, and DOJ had increases in both releases in full and releases in part by over 800 requests.In general, though, while many agencies were able to report increases in these numbers, for the vast majority the size of the increase was modest. Only fourteen agencies increased the number of full release responses by over fifty in Fiscal Year 2009, and only seventeen agencies were able to increase the number of partial releases by over fifty.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTOverall, agencies made real progress in increasing the number of requests where records were released, particularly the number where records were released in part. Such increases are an important indicator of increased transparency and agencies have made concrete progress in this regard. Still, there is room to improve. There are some agencies that had decreases in the number of full or partial releases and several only had modest increases. The number of full releases made by agencies logically will drop as those agencies proactively post documents that previously were available only by request and which were released in full when requested. The proactive disclosures eliminate the need for making requests, but they correspondingly have the effect of reducing the number of full grants that the agency otherwise would make. Still, agencies should strive to increase the number of requests where records are released. Chief FOIA Officers, as well as other agency FOIA professionals, should regularly track the number of full and partial releases made throughout the year to ensure that sufficient focus is being paid to this issue. With each request that has responsive documents that are being processed, agencies should be asking if a document that would typically be withheld in full could in fact be released in part. Likewise, for each document that would typically be released in part, agencies should be asking if the document could in fact be released in full. The active attention by each agency to the disposition given in response to all FOIA requests will help ensure that every agency becomes more transparent each year.Section II: Steps Taken to Ensure that Each Agency has an Effective System for Responding to RequestsIn Section II of their Chief FOIA Officer Reports, OIP asked agencies to describe the steps they had taken to ensure that they had effective systems in place to respond to requests. As the Attorney General emphasized in his FOIA Guidelines, "[a]pplication of the proper disclosure standard is only one part of ensuring transparency. Open government requires not just a presumption of disclosure, but also an effective system for responding to FOIA requests." In particular, OIP asked agencies to report on the steps taken to ensure that they had sufficient IT support for their FOIA responsibilities.A. IT SupportIn response to the question regarding IT support, seventy agencies reported that they did have sufficient support from their IT personnel. Only three agencies affirmatively reported insufficient IT support, while twenty-one did not address the issue.IT support is critical to FOIA operations and greatly enhances the ability of agencies to improve transparency. For example, the Board of Governors of the Federal Reserve System reported that it had considerable IT support, which enhanced the ability of its FOIA staff to compile and review a substantial number of records pertaining to the financial crisis.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTThe response to this question reveals that there has been a significant improvement in coordination between FOIA professionals and IT personnel. As the Attorney General noted in his FOIA Guidelines in March 2009, in prior years agencies had noted that insufficient IT support had hindered their ability to implement their FOIA Improvement Plans made under Executive Order 13392 of December 14, 2005. With seventy agencies now reporting that they do have sufficient IT support, this is clearly no longer the concern that it once was. Still, for those remaining agencies for which this is a problem, the Chief FOIA Officer should take steps to ensure that agency IT personnel are fully supporting their FOIA professionals.B. Upgrading IT ToolsAgencies reported taking a wide variety of steps to ensure that their systems for responding to FOIA requests are efficient and effective. For example, thirty-nine agencies reported that they took steps to procure or upgrade their IT tools.The Department of State is one of the agencies that reported doing so. At the request of its Chief FOIA Officer, State has committed $700,000 to transition to a newer, more advanced electronic case tracking and processing system. Similarly, HHS, Centers for Medicare and Medicaid Services implemented an electronic FOIA request management and tracking system in both its headquarters and its ten regional offices. The Merit System Protection Board made several upgrades to its FOIA tracking system, which allows for faster responses to status inquiries and provides better monitoring. Those upgrades included working with the agency's IT department to capture incoming requests and subsequent agency responses in one agency-wide document management system. Similarly, NASA implemented an agency-wide FOIA tracking system which allows use of electronic redaction tools and simplifies compilation of its Annual FOIA Report.As is discussed below in Section IV, agencies overwhelmingly embrace the use of technology to assist them in receiving, tracking, and processing requests, as well as in preparation of their Annual FOIA Reports. Given the extensive utilization of technology in the FOIA process, it is not surprising that thirty-nine agencies reported that they upgraded or procured additional IT tools to assist in their efforts.C. Active Chief FOIA OfficersThe Chief FOIA Officer at each agency obviously plays a critical role in ensuring that the agency has an effective system in place to respond to requests. For those agencies that reported the active involvement of their Chief FOIA Officers, that involvement was linked to the existence of sufficient IT support, increases in staff, and enhanced cooperation with non-FOIA personnel. There were many examples given in the Reports of active Chief FOIA Officers.For example, HUD's Chief FOIA Officer regularly receives updates on FOIA-related issues. The Chief FOIA Officer at Department of Transportation directed every component to conduct a review of its FOIA program and then met with senior level officials of that component to discuss component-specific recommendations. Smaller agencies reported the direct involvement of their Chief FOIA Officers with day-to-day FOIA operations. For example, the Chief FOIA Officer for the Federal Mine Safety and Health Review Commission works directly on all FOIA requests received there and is responsible for the agency's website content. The Postal Regulatory Commission Chief FOIA Officer likewise is directly involved in FOIA request handling.At the Department of Justice, the Associate Attorney General is the Chief FOIA Officer, making him the highest ranking Chief FOIA Officer in the government. He is actively involved not only in the Department's FOIA activities, but in encouraging all agency Chief FOIA Officers to improve FOIA performance and increase transparency.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTThe importance of the Chief FOIA Officer cannot be overstated. By law, each of these officials is responsible for ensuring that their agency efficiently and effectively complies with the FOIA. They are also each charged with responsibility for making recommendations to the head of their agency on any necessary adjustments to agency practices, policies, personnel, and funding as may be necessary to improve implementation of the FOIA. All agencies should ensure that their Chief FOIA Officer is of sufficiently high level within the agency and has sufficient authority to be able to carry out these statutory duties.D. Commonly Cited Steps for Improving EffectivenessOIP looked for other common trends among agencies in the steps taken to ensure that they had effective systems in place for responding to requests. In addition to mentioning the involvement of their Chief FOIA Officers, and improving their IT capacities, other examples listed by agencies as steps taken to improve their effectiveness and efficiency include conducting regular reviews of pending FOIA cases, increasing staff, improving customer service, and working more closely with non-FOIA personnel.Conducting Regular Reviews of Pending FOIA CasesSeveral agencies reported instituting procedures to regularly review pending FOIA requests as one of the steps employed to create an effective FOIA system. For example, the Department of Energy initiated monthly conference calls between Departmental FOIA Officers during which individual cases and the overall FOIA process are discussed. HHS, OIG conducts weekly reviews of all open FOIA requests. The Commodity Futures Trading Commission likewise has assembled a team to meet weekly to review the status of pending requests and brainstorm over issues that arise. SSA now assigns specific due dates for coordinators and established rigorous follow-up procedures. SSA also elevates issues to senior agency officials when necessary and has found that these procedures are speeding up processing. Increasing StaffIncreasing the number of FOIA staff is a logical improvement to the FOIA process. Fourteen agencies mentioned doing so. For example, the Department of Justice, National Security Division hired a new FOIA professional and announced the creation of two additional new positions. The Broadcasting Board of Governors, Office of General Counsel increased the number of staff who handle FOIA issues from one employee who worked on requests part-time, to five employees who work on requests part-time. Each of those professionals received formal training on FOIA, including the presumption of openness. ODNI hired an additional full-time professional to work on FOIA issues and is in the process of filling a second such position. Improving Customer ServiceImproving customer service is yet another aspect of ensuring that each agency has an effective system in place for responding to requests. This issue is of such importance that OIP recently issued guidance to agencies on this topic. OIP's guidance addressed the importance of agencies providing requesters with contact information; discussing with them the scope of their requests; providing interim releases; and limiting "still interested" letters. In their Chief FOIA Officer Reports, many agencies reported that they routinely contact requesters to discuss the scope of their requests. Several agencies, including DHS, DOD, and NASA reported that they had established online tools for requesters to use to access information pertaining to the status of their requests. The Department of Energy reported that it had emphasized the importance of customer service in its FOIA training. The Department of Agriculture is expanding its FOIA Requester Service Center, which serves as its focal point for incoming requests. Working with Non-FOIA StaffAgencies also took steps to either utilize non-FOIA staff or to more fully integrate them into FOIA operations. For example, the Department of Commerce has identified staff members assigned to non-FOIA programs who are available to assist the FOIA office during peak workload periods. At DOD, the Defense Threat Reduction Agency has designated a FOIA point of contact for each of its Directorates to facilitate document searches and to ensure timely responses. Similarly, the Department of Labor, Employee Benefits Security Administration has assigned an additional FOIA point of contact in each office to facilitate prompt response to FOIA requests. The Chemical Safety and Hazard Investigation Board worked with its Information Management Staff to integrate FOIA processing directly into the agency's electronic records management program, rather than using a stand-alone electronic FOIA processing system. The new capability to review records in their native format should enhance the efficiency and effectiveness of the Board's system for responding to requests. Improving Search CapabilitiesEighteen agencies mentioned improving search capabilities as a step they had taken toward achieving greater efficiency. For example, EPA collaborated with its IT staff to device a method to search for responsive e-mail records using key word searches. The Merit System Protection Board made several upgrades to its document management system and now FOIA personnel have direct access to the records they need and do not have to wait for program staff to provide them access. The Surface Transportation Board worked with its IT staff to develop staff instructions for performing more thorough and efficient electronic searches of e-mail and hard drives. Other agencies reported designating search points of contact and establishing procedures for conducting searches.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTAgencies are utilizing a wide range of approaches to make their FOIA systems effective and efficient. Agencies will find it beneficial to review the Chief FOIA Officer Reports of other agencies to look for ideas and approaches that would be beneficial. To assist agencies, OIP has compiled a list of Best Practices that incorporates many of the examples provided in Chief FOIA Officer Reports. All agencies should review that list and strive to incorporate as many of those Best Practices as practicable in order to realize increased efficiency and effectiveness at their agencies.Section III: Steps Taken to Increase Proactive DisclosuresPresident Obama declared that the presumption of disclosure "means that agencies should take affirmative steps to make information public" and to "use modern technology to inform citizens about what is known and done by their Government." In his FOIA Guidelines, Attorney General Holder directed agencies to "readily and systematically post information online in advance of any public request." For Section III of their Chief FOIA Officer Reports, OIP asked agencies to describe the steps they have taken to increase proactive disclosures of information and to provide examples of material newly made available on agency websites.A. Increasing Postings on Agency WebsitesAgencies across the government have fully embraced the concept of proactively disclosing information. Indeed, eighty-four agencies reported that they had added material to their websites since issuance of the new transparency guidelines.Of those eighty-four agencies, fifty-one reported that they were posting program material. For example, the Department of Education is in the process of posting 33,000 pages regarding its "Race to the Top" program. The Forest Service has placed over 30,000 publications and technical reports online. The Department of Transportation, FAA is posting its National Wildlife Strike database. The Department of the Treasury is posting multiple documents online connected with the economic recovery effort. EPA is posting tens of thousands of pesticide records. DOD is posting contracts, grants, and reports. DHS is posting Congressional correspondence. AMTRAK has created a website which contains certain contracting information connected with the American Recovery and Reinvestment Act of 2009. The Farm Credit System Insurance Corporation has created and posted an "Investment Portfolio" page, a "Laws and Regulations" page, and an "Insurance Premiums" page, all detailing that agency's programs.Twelve agencies reported posting responses to FOIA requests. For example, the Department of Justice, Criminal Division is in the process of posting historically significant records pertaining to high-profile cases, such as records pertaining to "Tokyo Rose" and "AXIS Sally." The Department of Energy posted copies of FOIA requests received in 2009 with their corresponding releasable records. DHS posts its FOIA logs, as do components of the Department of Justice.Eight agencies reported posting the schedules of high level officials. For example, the Department of State posts a Daily Appointment Schedule for the Secretary of State. Other agencies post schedules relating to upcoming events, such as the TVA which posts a calendar of Board meetings, and the NTSB which posts estimated release dates for its investigations.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTThe area of proactive posting is clearly one which shows marked success by an overwhelming number of agencies. As can be seen by the examples given here, a wide range of materials are being posted. Nevertheless, there were some agencies, or components of agencies, that failed to report any significant new postings. Instead, a few agencies merely cited the posting of "frequently requested" records, or Annual FOIA Reports, which are already legally required to be posted, or gave only general language regarding plans to review records for proactive release. Given the importance to the public of being able to readily review online the vast quantity and variety of materials generated or obtained by agencies, every agency should exponentially increase the amount of material available on its website. In doing so, they will be abiding by the President's and Attorney General's call to proactively disclose information to the public without waiting for individualized requests.B. Establishing Systems to Identify Records for PostingForty agencies reported that they had established systems to identify records for posting, while fifty-four agencies made no specific mention of having such systems.This is quite significant, because using a systematic, rather than an ad hoc approach to proactive disclosures greatly enhances the value of the information posted. There were several examples given in the Chief FOIA Officer Reports of systems for identifying records for posting. For example, DOD gets input from the public on its open.gov website as to what types of documents the public would like to see posted. HUD designated a FOIA Specialist to work with program staff in the agency to identify records to post. The Department of State established a full-time position for a Web Content Manager of the FOIA website.Other agencies reported engaging a wide spectrum of agency personnel in the search for records to proactively disclose. For example, the Chief FOIA Officer of DHS directed a wide-range of proactive disclosures across the agency. The Departments of Justice and Education worked directly with program offices to post documents. The National Highway Traffic Safety Administration assigned staff to monitor activity within program offices to identify documents for posting.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTThe vast majority of agencies have embraced proactive disclosures and are significantly increasing the amount of material made available on their websites. As mentioned above, though, there is a gap with some agencies or components of agencies failing to post more than the statutory minimum. All agencies should ensure that they, including all their components, are identifying documents for proactive disclosure and have an on-going process of posting documents of interest to the public. To be successful, this agency-wide process should encompass a team of personnel, including FOIA professionals, IT personnel, and program office officials, who can collectively identify records appropriate for posting.C. Enhancing the Quality of Posted InformationIn addition to making more information available to the public on agency websites, agencies also reported different ways in which they were enhancing the quality or usability of the data. The TSA, for example, created a Claims Management Database that allows the tracking of lost or stolen items. The Department of the Treasury, Troubled Asset Relief Program (TARP) has posted its report in both PDF format and an open format to facilitate access. Similarly, the Department of Justice, Justice Management Division, posted the Department's Forecast of Contracting Opportunities as an Excel document to make searching easier. The Federal Reserve Board includes descriptive information with its policy documents to make them easier to understand. USDA presents factual information graphically. DOD posts information in multiple languages. All these types of actions greatly enhance the quality and usability of posted material.D. Social MediaMany agencies have embraced new ways of communicating with the public and are increasing transparency by using social media. Fifty-nine agencies reported using social media to convey information to the public.Those agencies used a wide variety of such media, including Twitter, YouTube, and Facebook.DOD is an example of an agency that provided a very detailed description of its social media activities. DOD maintains fifty active blogs and has a presence on eleven social networking sites. Many of its senior military leaders blog and twitter, including the Chairman of the Joint Chiefs of Staff who has over 15,000 followers on Twitter. The Department of the Interior, U.S. Geological Survey is developing a system to gather real-time information on earthquakes using Twitter. In another example of effective use of social media, the Consumer Product Safety Commission holds live webcasts of its public hearings and meetings, which allows the public to participate electronically.Agencies should constantly be looking for new ways to be transparent. They should explore the full array of media available to them to increase their proactive disclosures of information. Given the many benefits of social media, their appeal to a new demographic of the public, and their ability to be updated quickly, social media are an important element of increased transparency.Section IV: Steps Taken to Greater Utilize TechnologyFor this Section of agency Chief FOIA Officer Reports, OIP asked agencies to answer a series of eight questions related to their use of technology. This was the first time that an agency-wide survey of the use of technology to administer the FOIA had been taken. The results showed that overwhelmingly agencies are harnessing technology to assist in the basic elements of FOIA processing, i.e., receiving, tracking, and processing requests, and preparing Annual FOIA Reports. As mentioned above, when compiling statistics for those agencies that handle requests on a decentralized basis, the agency was counted as answering in the affirmative if a majority of its components responded in the affirmative.A. Receiving Requests ElectronicallyFirst, agencies were asked to report whether they currently receive requests electronically and if not, what were the current impediments to doing so. Of the ninety-four Departments and agencies subject to the FOIA, eighty-nine reported that they receive requests electronically - an extraordinarily high percentage. Only five agencies reported that they did not receive requests electronically.All cabinet agencies reported that they receive requests electronically. Although agencies were not asked to specify the method of receipt, for those that did specify, forty-seven reported that they received requests by e-mail and twenty-four reported receiving requests by electronic request form. Some agencies reported utilizing both methods. Three agencies reported that their electronic receipt of requests entailed merely receiving requests by fax.Given the extraordinarily high number of agencies reporting that they receive requests electronically, there were only a few to which the second question was applicable. The second question in Section IV asked agencies to describe any impediments to establishing a mechanism to receive requests electronically. For those agencies that responded, the impediments cited were privacy concerns, technological impediments, a low volume of requests which obviated the need to receive requests electronically, and cost. Four agencies reported that they are in the process of implementing systems to receive requests electronically.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTVirtually all agencies already receive requests electronically, either by e-mail or through electronic request forms. Given this widespread use of technology to simplify the request-making process, during the next year those few agencies that do not receive requests electronically should consider doing so. Moreover, for all agencies that utilize a decentralized system to receive requests, the components that are not receiving requests electronically should expand so that the agency is able to report next year an increased capacity to receive requests electronically. Components within agencies that are already utilizing technology to receive requests should share their experiences and methods with those components that do not yet receive requests electronically to facilitate agency-wide implementation of this procedure which is quite beneficial to requesters.B. Tracking Requests ElectronicallyAgencies were next asked to report whether they track requests electronically. Once again, there were an extraordinarily high number of affirmative answers. Eighty-six agencies reported that they track electronically, with only eight reporting that they do not.As with question two, for many agencies question four - which asked for any impediments to utilizing technology to track requests - was not applicable, given that most agencies do, in fact, use technology to track requests. For those agencies that responded, the impediments cited were cost and lack of need for electronic tracking. Three reported that they are in the process of implementing electronic tracking.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTAs with receipt of requests electronically, virtually all agencies utilize some form of electronic FOIA request tracking system. There are obvious benefits to doing so, including increased efficiency and accuracy. Moreover, given that the FOIA requires agencies to provide requesters with information on the status of their request, it is vitally important that agencies have available to them a ready way to ascertain where a request is in the system. Thus, for those agencies that process on a decentralized basis, during the course of the next year, the capacity to track requests electronically should be expanded. For those few agencies not yet tracking electronically they should explore doing so.C. Processing Requests ElectronicallyQuestion five asked agencies to report whether they utilize technology to process requests. Again, the response was overwhelmingly affirmative, with eighty-six agencies responding in the affirmative. Only eight agencies reported that they did not utilize technology to assist in processing requests.When asked to describe the impediments to using technology to process requests, for the few agencies for which this question was applicable, the impediments cited were cost effectiveness or lack of need and technological impediments. Four agencies reported that they were in the process of implementing technology-based tracking systems.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTOnce again, agencies clearly realize the benefits of utilizing technology to process requests. The old days of using black pens and red tape to manually redact documents are a thing of the past. Still, for the decentralized agencies that do not universally employ technology to process requests, efforts should be made to ensure that the entire agency utilizes technology. Similarly, for those few agencies which still do not use technology to process requests, they should actively explore doing so.D. Preparing Annual FOIA Reports ElectronicallyQuestion seven asked agencies whether they used technology to prepare their Annual FOIA Reports. Although the number was still quite significant, seventy-eight agencies reported doing so, this was slightly less than the number of agencies that otherwise use technology to receive, track, and process requests. Sixteen agencies reported that they did not use technology to prepare their Annual FOIA Reports.For those agencies that reported the type of technology they used, there was a mixed response, with thirteen reporting that they used a FOIA-specific system and twenty-nine reporting that they used non-FOIA-specific technology like Excel or Word to prepare their Annual FOIA Reports. Technology can, of course, be used to improve an agency's ability to provide reliable statistics for its Annual FOIA Report. For example, the CIA implemented several refinements to its system to add key data collection capabilities helpful to preparation of its Annual FOIA Report.When asked to describe the impediments to using technology to prepare Annual FOIA Reports, agencies cited lack of need and cost. Seven agencies reported that they are in the process of implementing systems to utilize technology in preparation of their Annual FOIA Reports.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTGiven the tremendous amount of highly-detailed data that must be collected by agencies to compile their Annual FOIA Reports, and given the need to be as accurate as possible in those Reports, those agencies, or components of agencies not currently utilizing technology to compile Annual FOIA Report statistics should take steps to do so within the next year.E. Overall Conclusions on Agency Use of TechnologyAs shown above, OIP's survey of agency use of technology revealed that rather than lacking in their utilization of technology for the basic elements of FOIA administration, agencies have in fact embraced technology to help them manage their FOIA workloads.Nonetheless, there are two key areas where technology can be better utilized to achieve even greater gains in efficiency in FOIA administration.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTA key aspect of FOIA processing involves searching for records within the agency. In today's workplace such searches frequently entail searching through voluminous numbers of e-mail messages and disparate records systems throughout the organization. Achieving real efficiency in FOIA processing will entail agencies maximizing their electronic record-keeping capacities to facilitate identification of the location of records responsive to requests. Requesters often assume that when they make a request for records on a given topic, the only thing the agency FOIA Office need do is type in the topic on an agency-wide or component-wide system, and all the records on that topic will be electronically identified and can then simply be printed out. While some systems of records are able to be searched that way, many are not, and achieving this efficiency in locating records will have a huge impact on FOIA processing time. In managing their agency's FOIA workload, it is vital that Chief FOIA Officers and other FOIA professionals have the ability to take snapshots of where the agency stands throughout the year. That way the Chief FOIA Officer will know during the course of the year such things, for example, as whether the agency or particular components of the agency are receiving far greater number of requests than is typical, and can adjust resources and personnel accordingly. Likewise, it is important for agencies to be able to monitor throughout the year the status of any backlog of FOIA requests, and the disposition of those requests that have been closed, such as the number of requests resulting in a release in full or a release in part. Agencies should have the capability to monitor their FOIA activity throughout the course of the fiscal year so that problems can be identified and corrected during the course of the year.There are six key metrics that should be available to FOIA managers throughout the course of the year. These metrics are: 1) the number of requests received; 2) the number of requests processed; 3) the number of requests in the agency's backlog; 4) the number of requests resulting in a release in full of the requested records; 5) the number of requests resulting in a release in part of the requested records; and 6) the number of requests where all requested records were withheld in full. Section V: Steps Taken to Reduce Backlogs and Improve Timeliness in Responding to RequestsBoth the President and the Attorney General emphasized the importance of improving timeliness in responding to FOIA requests. To assess agencies' efforts in improving their response times, OIP asked each agency to report on three separate elements in Section V of their Chief FOIA Officer Report. First, agencies reported whether they were reducing their backlogs. This reduction was measured both in terms of the number of backlogged requests and administrative appeals that were pending at the end of Fiscal Year 2009 as compared with Fiscal Year 2008, as well as in terms of the age of those requests and appeals. If the number of pending requests or appeals did not decrease, agencies were then asked to describe why that has occurred and what they were doing to bring about a reduction. Lastly, agencies were asked to describe the steps they were taking to improve timeliness when responding to requests and administrative appeals.A. Backlog Assessment - Number of Backlogged RequestsTo create a complete picture of agencies' backlogs, OIP used two separate backlog measurements: the number of requests in any backlog and the ages of the oldest of those requests. First, OIP examined the status of agencies' backlogs overall, looking at whether the number of backlogged requests and administrative appeals decreased from the end of Fiscal Year 2008 to the end of Fiscal Year 2009, as reported in Section XII of agency Annual FOIA Reports. Overall, the majority of agencies are making quite remarkable progress in this regard. Across the government significant reductions in the backlog have occurred. The overall backlog reduced dramatically from 133,295 requests in Fiscal Year 2008, to 77,377 backlogged requests in Fiscal Year 2009.Fifty-five agencies, constituting almost two-thirds of all agencies, reported decreases in their backlogs for Fiscal Year 2009, or reported that they had no backlog at all for either year. Only thirty-six agencies, or roughly one-third, reported an increase in the number of requests in their backlog.More specifically, the request backlog decreased for thirty-three agencies and remained at zero for twenty-two agencies. The request backlog increased or remained the same for only thirty-six agencies.For the thirty-two agencies that reported increases in their backlogs, OIP found that twenty-one of those agencies had only minor increases in their backlog, totaling twenty-five requests or less. The remaining eleven agencies had increases in their request backlog that ranged from forty-two to 4,457.FINDINGS AND OIP GUIDANCE FOR IMPROVMENTAgencies have made real, measurable progress in reducing their backlogs. Two-thirds of agencies either are reducing their backlog or have no backlog at all. Of those agencies with a backlog, only eleven reported that the backlog increased beyond twenty-five requests. While all thirty-two agencies that reported any increase in their backlog need to take additional steps to reverse that trend, it is a significant sign of success that so many agencies are moving in the right direction by reducing their backlog or by continuing to operate with no request backlog at all.B. Decreases in BacklogOIP next examined the agencies that reported decreases in their backlogs to assess the extent of their success in this area. For many of these agencies the progress is just beginning. Of the thirty-three agencies that had a decrease in their backlog, fifteen had a decrease of twenty-five requests or less. The remaining eighteen agencies, however, have made significant progress in backlog reduction. These agencies had decreases of up to 5,000 requests.Of these, the following twelve agencies had decreases of over 100 requests: Department of Agriculture, HHS, DHS, HUD, DOT, Department of the Treasury, VA, CIA, EPA, Equal Employment Opportunity Commission, Legal Services Corporation, and the SEC. DHS -- which, while still having a sizable backlog, has been systematically reducing it -- reported that at the end of Fiscal Year 2009 it had a backlog of 18,787 requests, but as of January 2010 the backlog was reduced to 12,406 requests. HHS and VA also reported significant reductions in their backlogs, reducing them by 1891 and 1977 requests, respectively.C. Backlog Assessment - Age of Oldest RequestBacklog reduction involves both reducing the number of backlogged requests and reducing the ages of the oldest of those requests. Overall, the data in agency Chief FOIA Officer Reports shows that agencies are continuing to improve the age of their oldest pending requests. Specifically, of the agencies with a backlog, fifty-one improved the age of the oldest request, while only fourteen did not make this improvement. Looked at as a matter of overall percentages, fifty-seven percent of all agencies improved the age of their oldest request, twenty-eight percent did not have a backlog in either Fiscal Year 2008 or 2009 and so had no need to improve, and the remaining fifteen percent of agencies failed to improve the age of their oldest request.The need for uniform and continued attention to closing the oldest requests is most evident when the age of those oldest requests is examined. At the end of Fiscal Year 2009, roughly a third of the agencies with backlogs had received all of their pending requests within that fiscal year. The remaining two-thirds, however, had requests pending from previous fiscal years. Most notably, four agencies had requests still pending from the 1990's, going as far back as 1992. Additionally, the oldest requests at four other agencies were received ten years ago, in Fiscal Year 2000.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTEvery agency should establish a goal of closing its ten oldest requests each fiscal year. While most agencies were able to report progress in this area and the closing of their oldest requests, the age of requests across the government continues to be too old. Chief FOIA Officers should work with their FOIA offices to make sure that the oldest requests are being monitored and that the appropriate resources are being applied directly to these more complex requests so that the oldest ten are closed each year.D. Backlog Assessment - Number and Age of Administrative AppealsSeventy-eight agencies reported a decrease in their administrative appeal backlog or did not have any backlogged appeals at the end of either fiscal year. Only fourteen agencies had an increase in their administrative appeal backlog and one agency reported that its appeal backlog remained the same for Fiscal Years 2008 and 2009. These statistics show that for the most part agencies have been able to adjudicate administrative appeals without acquiring a backlog or have begun to take steps to address any existing backlog they may have.Further, the vast majority of agencies were able to reduce the age of the oldest pending appeal. Of the agencies with backlogged appeals, twenty-nine reduced the age of the oldest from Fiscal Year 2008 to Fiscal Year 2009, and only seven did not improve the age.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTAs mentioned above in the context of requests, all agencies should continue to focus on closing their oldest appeals and should have as their goal the closing of the ten oldest administrative appeals each year.E. Common Reasons for Backlogs The challenges agencies experience in processing FOIA requests and keeping up with demand vary widely across the government. This is not unexpected, as the types of records maintained by agencies are often very different, the number of incoming requests varies greatly, and the size of FOIA offices, and number of personnel devoted to FOIA operations are all different. Still, for those agencies that reported having backlogs OIP identified four common reasons that were cited by those agencies as factors contributing to the backlog. Increases in backlog were commonly attributed to: 1) an increase in the number of incoming requests in Fiscal Year 2009; 2) departure of staff; 3) receipt of more complex requests than anticipated; and 4) competing priorities of the personnel responsible for handling FOIA matters, which limited their ability to devote more time to FOIA.There were several examples of agencies reporting that an increase in the number of incoming requests caused an increase in the agency's backlog. For example, NARA's backlog increase of 1073 requests was attributed to the fact that it received 4506 additional requests in Fiscal Year 2009 as compared to Fiscal Year 2008.Other agencies lost key personnel and consequently were not able to process as many requests as expected. For instance, when comparing Fiscal Year 2009 to Fiscal Year 2007, the Department of the Interior personnel devoted to FOIA operations decreased by seventeen percent. Such a loss can greatly impact small FOIA offices that only have a couple of people responsible for processing requests. This occurred at the Corporation for National Community Service, where its sole FOIA Disclosure Officer departed and that position took several months to fill.Also, while agencies must prepare for receipt of a certain number of complex requests, twelve agencies reported that they had received unexpectedly complex requests and this fact contributed to their backlog. For instance, the U.S. Agency for International Development reported that it had an increase in complex requests that called for additional reviews and consultations. As a result, processing those requests required more resources than are typically used to close a larger number of requests.Lastly, agency personnel often have other responsibilities that they must balance with their obligation to process FOIA requests in a timely fashion. Several agencies explained that in Fiscal Year 2009 these other responsibilities took more of their personnel's time and resources than is typical. These competing priorities can be other FOIA responsibilities or often the personnel tasked with processing requests have other non-FOIA related responsibilities that can take a large portion of their time. Agencies such as the VA and the Federal Election Commission for example, reported experiencing shifting resources in order to handle information security, e-discovery, and "the press of other business."FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTAgency FOIA professionals should work closely with their Chief FOIA Officer to address the challenges that are causing backlogs at their agency. It is the Chief FOIA Officer who is charged with the responsibility of ensuring that each agency's FOIA operations are properly staffed and funded. The Chief FOIA Officer can also assist in re-prioritizing projects to ensure that FOIA operations are given sufficient attention in the agency. Whenever possible, agencies should ensure that they dedicate a sufficient number of personnel solely to FOIA responsibilities.F. Steps Taken to Address BacklogsThe Department of Justice asked those agencies that were not able to reduce their backlogs or improve the age of their oldest requests or appeals to provide the steps that were being taken to make improvements. A variety of steps were cited by agencies.The most commonly cited remedial step was to increase the number of staff devoted to FOIA processing. Some agencies, including the National Transportation Safety Board, increased the number of people working with the FOIA on a temporary or part-time basis, such as increasing contractor support, while other agencies, including the FDIC, increased the number of employees working with FOIA on a full-time basis. The Federal Reserve System nearly doubled the resources directed to FOIA operations. An additional three agencies reported plans to increase the resources that are available to their staff working with the FOIA.Similarly, some agencies have specifically devoted resources to making IT improvements to their FOIA processing systems. Many agencies have improved their ability to track requests. Others have used IT to improve their ability to process documents in a more efficient manner.Several agencies did not increase their resources or staff, but instead have changed their current processing system by monitoring the requests more closely or shifting existing resources to focus on reducing their backlog. For example, the Legal Services Corporation temporarily shifted responsibilities within the office, allowing the FOIA Officer to devote her full time and attention to reducing the backlog of FOIA requests. Similarly, the SSA has realigned responsibility for routine cases, allowing more experienced staff to concentrate on the more complex backlogged cases.Many agencies are addressing their backlog by using training to improve their processing systems. For example, DOD had over 1000 DOD personnel attend training and the Department of Energy will provide ongoing training to employees who process requests and specialized training will be provided to employees with newly delegated FOIA responsibilities.Lastly, as was discussed above, several agencies have reported that their Chief FOIA Officer has become more involved in overseeing the agency's capacity to process requests. By applying high level attention within the agency to the issue of backlogs, these agencies are highlighting the need for all agency personnel to do their part to help close requests that have been pending for too long. For example, GSA has reported that it provides a weekly FOIA report to the Chief FOIA Officer detailing all overdue FOIA requests, ensuring there is high-level attention paid to the requests that are pending the longest at that agency.FINDINGS AND OIP GUIDANCE FOR IMPROVEMENTWhile agencies across the government are moving in the right direction by reducing their backlogs of requests, in some cases quite dramatically, those agencies that are not seeing reductions will need to take action in order to turn the tide on backlogs. While each agency must examine its own system and capacities in devising approaches that will work, all agencies should ensure that sufficient resources are being devoted to FOIA administration at their agency and that sufficient training on the new presumption of openness is being provided. These are key responsibilities of each agency's Chief FOIA Officer and were the subject of a memorandum to agency heads sent March 16, 2010, from the White House Chief of Staff and Counsel to the President. See http://www.whitehouse.gov/sites/default/files/rss_viewer/foia_memo_3-16-10.pdf Beyond ensuring that adequate resources and training are provided, agencies should set goals and monitor progress throughout the year so that they can achieve meaningful backlog reduction.ConclusionAs can be seen from this summary, agencies across the government have undertaken a wide variety of steps to implement the President's FOIA Memorandum and the Attorney General's FOIA Guidelines. There are numerous outstanding examples of agencies applying the presumption of openness, ensuring that their FOIA systems are effective, improving their proactive disclosures, utilizing technology, and reducing backlogs. Concrete steps have been taken and real progress has been achieved in creating greater transparency.At the same time, however, additional work remains to be done. This report provides guidance to agencies on the corrective steps that should be taken by agencies to ensure that all aspects of their FOIA operations are fully aligned with the President's and Attorney General's vision of making this the most transparent Administration in history.OIP is available to assist agencies in any aspect of their work to achieve even greater transparency. OIP has also compiled a list of Best Practices to assist agencies in implementing improvements in each of the five distinct areas encompassed by the President's FOIA Memorandum and the Attorney General's FOIA Guidelines. As agencies continue their work to further implement the President's FOIA Memorandum and the Attorney General's FOIA Guidelines even greater transparency will be achieved in the year ahead. (posted 07/29/2010)
#> 6 The Importance of Good Communication with FOIA Requesters 2.0:Improving Both the Means and the Content of Requester Communications President Obama and Attorney General Holder emphasized in their FOIA Memoranda the importance of agencies working with FOIA requesters “in a spirit of cooperation.” A key element of that cooperation is establishing and maintaining good communication. In 2010, before the first anniversary of the issuance of the Attorney General’s FOIA Guidelines, the Office of Information Policy (OIP) issued guidance addressing this topic. OIP’s 2010 guidance entitled The Importance of Good Communication with FOIA Requesters counseled agencies to:\tprovide requesters with agency contact information,\tengage in a dialogue with requesters regarding complex requests to collaborate on a plan for responding,\tmake interim responses to requesters as processing proceeds whenever feasible, and\tlimit “still-interested” letters or phone calls to requesters by being “mindful of the manner in which such inquiries are made” and affording requesters a reasonable amount of time to indicate their continued interest.OIP’s guidance also reminded agencies that the FOIA contains a number of provisions that require agencies to contact requesters. Specifically, requesters must be notified whenever a request involves “unusual circumstances,” as defined in the statute, and if the period to respond will extend beyond ten additional working days, agencies must provide the requester with an opportunity to limit the scope of the request or arrange an alternate time frame for processing. See 5 U.S.C. § 552(a)(6)(B) (2006 & Supp. IV 2010). The FOIA also requires agencies to establish a telephone line or internet service to provide requesters with information about the status of their request, including an estimated date of completion. See id. § 552(a)(7). The statutory requirement to provide information about the status of a request has been addressed in detail by OIP in separate guidance entitled Assigning Tracking Numbers and Providing Status Information for Requests. These are just a few of the situations where agencies have occasion to contact requesters. As OIP’s 2010 guidance on the importance of good communication stressed, agencies should establish good communication and work cooperatively with FOIA requesters throughout the FOIA process. Building off of that initial guidance, this second installment of guidance on the topic of good communication encourages greater use of email or other technology as the means by which agencies communicate with requesters and also addresses the importance of ensuring that the content of agency communications reflect the “spirit of cooperation” the President and the Attorney General envisioned for the government’s FOIA administration.Using Technology to Further Improve Communications with RequestersIn their FOIA Memoranda the President and Attorney General called on agencies to “use modern technology to inform citizens about what is known and done by their Government.” Using technology whenever possible as the means of communicating with requesters is one of the ways in which agencies can improve their lines of communication with the public.As addressed in the 2010 guidance on the importance of good communication, there are many situations where having a discussion with a requester over the telephone is the most productive and efficient way to communicate. There are other situations, however, where using email, or communicating via an online account, can be more efficient. Though some agencies may face barriers which prevent them from fully utilizing electronic means for communicating with requesters, for many agencies the use of email or an internet portal can serve as a simple and easy way to create efficiencies both in communicating with requesters and in administering the FOIA overall.Of course, when processing is complete and the agency is ready to make the requested records available to the requester, the FOIA requires the agency to "provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552(a)(3)(B). The FOIA also requires agencies to "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes. Id.; see United States Department of Justice Guide to the FOIA, Procedural Requirements (2013 ed.). If an agency is not able to provide the records in the form or format that was requested, the agency should notify the requester of that fact and offer alternative ways in which the records can be provided.Communicating Electronically with Requesters as the DefaultAs the number of organizations and requesters submitting requests and correspondence to agencies through electronic means increases, agencies likewise should increase their use of technology to communicate about and respond to those inquiries. Similarly, when requesters note in the text of a paper letter or appeal that they would like to be contacted by email concerning any issues connected with the processing of their request, agencies should make every effort to communicate in that way, or explain why they are unable to do so. While some requesters may not have access to the internet or may not provide email contact information, for those that do, agencies should use e-communication as a default. By viewing e-communication as the default and not the exception agencies and requesters will be able to exchange information more quickly and thereby improve efficiency in the processing of requests.Alerting the Public to any Limitations on the Use of Electronic CommunicationsFor some agencies, website firewalls or other issues might limit the FOIA office’s ability to use electronic means to communicate with requesters. In such cases, when individual requesters ask to be contacted by email, agencies should advise them of their office’s limitations in doing so. Additionally, any limitations on the use of technology to communicate with requesters should be added to an agency’s FOIA website as a courtesy notice for all requesters. The very process of informing requesters of any limitations on the FOIA office’s ability to use email or other technology to communicate with requesters is itself an example of good communication.Providing Links to Information Already Available Online Federal departments and agencies are routinely making a wide variety of information available online in both FOIA Libraries and throughout agency websites. This posted material is a valuable resource for FOIA requesters and the public alike. When posted material might be helpful to requesters, possibly even satisfying their need for information, using email or an online portal to quickly provide links to the posted information is yet another way that technology can be used to improve the quality of the agency’s communication with requesters.Communicating in a “Spirit of Cooperation”Separate and apart from the means used to communicate with requesters, agencies should recognize that the content and tone of their communications should reflect the “spirit of cooperation” that the President and Attorney General emphasized in their FOIA Memoranda. Agencies should be mindful that requesters may be unaware of what certain terms or acronyms mean, what the FOIA process is, or what their options are in a given situation. Agencies can improve the quality of their communication with requesters by looking at the content of their correspondence from the point of view of the requester. Often a simple change in language or the addition of a sentence or two of explanation in the agency’s response can go a long way to improving understanding.Providing Requesters With a Breakdown of Fees and an Explanation When Fees Might be Higher than Expected One area where clear, informative communication can be particularly beneficial to both requesters and agencies alike concerns the charging of fees under the FOIA. There are three general types of fees under the FOIA -- search fees, review fees, and duplication fees -- as well as three general categories of requesters, who are charged differently depending on their fee category. See United States Department of Justice Guide to the FOIA, Fees and Fee Waivers (2013 ed.). The need to communicate concerning fees can arise in many different types of situations. Although the FOIA has long provided for the assessment of fees, some requesters are not aware that fees may apply to their requests. While some requesters provide agencies with a commitment to pay a certain amount of fees in their incoming request letter, others do not. Some requesters may assume their request will not entail any fees because they seek only a small number of documents, yet the agency may need to conduct very time-consuming searches to locate those records. In all these situations, the expectations of the requester concerning FOIA fees might be different from the reality that the request has presented. As a result, this is a particularly important area for agencies to have clear, helpful communication with the requester.The content of the communication will vary depending on the scenario presented, but agencies should critically assess both the tone and the substance of their communications regarding fees to be sure they reflect a “spirit of cooperation” and provide requesters with information that is needed by them in order to know how best to proceed. In particular, agencies should give requesters an opportunity to reformulate their request to reduce or eliminate the estimated fees. In addition, requesters should be given a breakdown of the estimated fees attributable to their request. In preparing the fee estimate agencies necessarily will have to anticipate which type(s) of fees apply to the request and use that as the basis for preparing the fee estimate. Agencies should in turn provide that breakdown to the requester. Requesters will find it helpful to know, for example, how much of an estimated fee is attributable to search time and how much is attributable to duplication.Finally, when fee estimates are particularly high agencies should provide the requester with a brief explanation of the reason for the high fee estimate. For example, when a request seeks one specific record a requester could reasonably assume that it is easy to locate and that no fees will be incurred in connection with processing the request. If, in fact, that particular record is not easily located, however, and the agency estimates it will need a significant amount of time to conduct the search, the agency should provide a brief explanation so the requester can better understand the reasons underlying the fee estimate. By including such an explanation and by routinely providing a breakdown of any fee estimates, agencies will promote better understanding of the process, prevent disputes, and demonstrate the cooperative spirit that the President and Attorney General envision in the administration of the FOIA.Making it Easy to Narrow Requests Both agencies and requesters benefit when they have the ability to easily communicate. For example, when a requester is better informed, he or she might decide to narrow the request in order to move it into the “simple” processing track. When requesters use email or an online portal to narrow their requests, the agency has a record of the revision which can be saved in the request file. Other times, requesters may inform agencies of the revision to the request after a telephone conversation. It is important that the substance of the newly reformulated request be memorialized. At the same time, because such a narrowing is a benefit to both agencies and requesters, the process of documenting any revisions to a request should not be unnecessarily burdensome. One approach that makes the process efficient and easy is for agency personnel to simply take notes about their phone conversations with requesters and memorialize them in the FOIA case file, describing any narrowing of the request or other agreement that was reached. The agency should then put that revision or agreement in writing and convey it back to the requester, either right after the telephone conversation or when next communicating with the requester. In that way both parties have a written record of the narrowed request, while keeping the process of narrowing the request as easy as possible.Maintaining Focus on Overall FOIA MissionAs described above and in OIP’s 2010 guidance on good communication, explaining agency actions and providing opportunities for requesters to narrow the scope of their requests can help agencies provide records more promptly to requesters. At the same time, however, there are many requests where no particularized discussion is needed. To the extent agencies can anticipate common inquiries and address them by providing the information proactively either on their websites or in outgoing communications with requesters, the need for individualized discussions can be reduced. When individualized communication is necessary or helpful to the process, requesters, as well as agencies, will benefit when those communications are targeted, clear, and efficient, recognizing that agencies necessarily need to balance the number of occasions they engage with requesters individually with their responsibility to focus their resources on their overall FOIA mission. Ultimately, each agency’s goal is to provide all FOIA requesters with prompt access to the information they seek.ConclusionTaking steps to improve both the means by which agencies communicate with requesters and the content of those communications will help promote understanding of the FOIA process and facilitate timely access to requested information. The practices outlined above are concrete steps all agencies should take to affirm their commitment to working with requesters in the “spirit of cooperation” envisioned by the President and the Attorney General.
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#> 2 Summaries of New Decisions
#> 3 Summaries of New Decisions
#> 4 Preferred Formats for 2009 Annual FOIA Reports
#> 5 Summary of Agency Chief FOIA Officer Reports with Findings and OIP Guidance for Improvement
#> 6 The Importance of Good Communication with FOIA Requesters 2.0
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