"Post-9/11" FOIA Litigation

  • Exemption 1
    • ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (rejecting exemption applicability to "watch-list" related information)
    • Elec. Privacy Info. Ctr. v. Dep't of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) (upholding exemption applicability to some "Terrorism Surveillance Program" records, but requiring further justification as to others)
    • Associated Press v. DOD, 498 F. Supp. 2d 707 (S.D.N.Y. 2007) (upholding exemption applicability to certain records pertaining to detainees at Guantánamo Bay)
    • New York Times Co. v. DOD, 499 F. Supp. 2d 501 (S.D.N.Y. 2007) (upholding exemption applicability to certain "Terrorism Surveillance Program" records)
    • Associated Press v. DOD, 462 F. Supp. 2d 573 (S.D.N.Y. 2006) (upholding exemption applicability to certain photographs of detainees at Guantánamo Bay)
  • Exemption 2
    • Morley v. CIA, No. 10-5161, 2012 U.S. App. LEXIS 8652 (D.C. Cir. Apr. 27, 2012) (remanding, in light of Milner, for agency to file appropriate supplemental declaration, and if necessary changes to its Vaughn declaration, regarding whether other exemptions cover all withheld portions of records at issue)
    • Lardner v. FBI, No. 09-874, 2012 WL 1109728 (D.D.C. Apr. 4, 2012) (finding agency's Vaughn declaration to be inadequate in light of Milner and requiring reprocessing for release of additional information previously withheld under Exemption 2)
    • Lardner v. FBI, No. 09-874, 2012 WL 1109728 (D.D.C. Apr. 4, 2012) In finding that the defendants' Vaughn index was inadequate, the court determined that in light of the Millner decision a reprocessing of the documents was justified to allow the FBI to release additional information that was previously withheld under Exemption 2.
    • Milner v. Dep't of the Navy, 562 U.S. 3 (2011) (rejecting exemption applicability to locations and potential blast ranges of military weapons stored on island in Puget Sound) (remanded to district court by Ninth Circuit on May 11, 2011)
    • EPIC v. DHS, No. 09-2084, 2011 WL 93087 (D.D.C. Jan. 12, 2011) (upholding exemption applicability to TSA security-training information and thousands of images created by body-scanning technology) (motion for reconsideration filed on Mar. 25, 2011)
    • Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (upholding exemption applicability to an internal questionnaire in the federal surveillance program targeting Muslim groups, because its disclosure undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire)
    • ACLU v. DOJ, 698 F. Supp. 2d 163 (D.D.C. 2010) (upholding exemption applicability to guides or samples that AUSAs use in drafting applications, orders, and declarations to obtain authorization for cell phone monitoring)
    • Sussman v. USMS, No. 03-610 (HHK) (D.D.C. Sept. 1, 2010) (upholding exemption applicability to names of external databases employed by U.S. Marshals in tracking down fugitives)
    • Elliott v. U.S. Dep't of Agric., 596 F.3d 842 (D.C. Cir.), cert. denied, 130 S. Ct. (2010) (upholding exemption applicability to blueprints of agricultural research buildings that house "various biological agents and toxins")
    • Davis v. DOD, No. 07-492, 2010 WL 1837925 (W.D.N.C. May 6, 2010) (upholding exemption applicability to the procedures and manner in which detainee hunger strikers are secured during involuntary feedings, by deferring to the executive on matters that "bear[] upon national security")
    • Asian Law Caucus v. DHS, No. 08-0842, 2008 WL 5047839 (N.D. Cal. Nov. 24, 2008) (upholding exemption applicability to "watch list-related" database information)
    • Azmy v. DOD, 562 F. Supp. 2d 590 (S.D.N.Y. 2008) (upholding exemption applicability to "threat-level assessment" of Guantanamo detainee on basis that disclosure would "risk circumvention of U.S. law enforcement and counterterrorism efforts")
    • Moayedi v. U.S. Customs & Border Prot., 510 F. Supp. 2d 73 (D.D.C. 2007) (upholding exemption applicability as to details of airport detention and interrogation of Irani-born naturalized American citizen)
    • Elec. Privacy Info. Ctr. v. DHS, No. 04-1625, 2006 U.S. Dist. LEXIS 94615 (D.D.C. Jan. 23, 2007) (upholding exemption applicability to e-mail communications between DHS and Census Bureau regarding "demographic data for individuals who had identified themselves as being of Arab ancestry on the 2000 census")
    • Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) (upholding exemption applicability to certain records pertaining to airport "watch lists," but rejecting applicability to two related records on basis that FBI "has not adequately explained how this information could be used to circumvent agency regulations")
    • Carlson v. USPS, No. 02-05471, 2005 WL 756573 (N.D. Cal. Mar. 31, 2005) (rejecting exemption applicability to USPS "collection box database" based upon agency's failure to sufficiently demonstrate disclosure harm)
    • Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal. 2003) (upholding exemption applicability to cargo inspection rates at particular seaports), reconsideration denied, No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9th Cir. Aug. 26, 2003)
    • Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) (rejecting exemption applicability to flood inundation maps based upon prevailing Tenth Circuit case law)
  • Exemption 3
    • Elec. Privacy Info. Ctr. v. Dep't of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) (upholding exemption applicability to certain "Terrorism Surveillance Program" records maintained by NSA, based upon section 1071(a) of the Intelligence Reform and Terrorism Prevention Act, 50 U.S.C. § 402)
    • Tooley v. Bush, No. 06-306, 2006 WL 3783142 (D.D.C. Dec. 21, 2006) (upholding exemption applicability as basis for neither confirming nor denying existing of "watch list" records concerning plaintiff, based upon 49 U.S.C. § 114)
    • Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100 (D.D.C. 2005) (upholding exemption applicability to "airline's passenger name records," based upon 49 U.S.C. § 114(s) and 49 U.S.C. § 40119(b))
    • Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) (upholding exemption applicability to certain "Sensitive Security Information" records maintained by TSA under 49 U.S.C. § 114(s))
  • Exemption 5
    • Elec. Privacy Info. Ctr. v. Dep't of Justice, 511 F. Supp. 2d 56 (D.D.C. 2007) (upholding exemption applicability to some "Terrorism Surveillance Program" records, but requiring further "segregability" justification as to others)
    • New York Times Co. v. DOD, No. 06-1553, 2007 WL 2609572 (S.D.N.Y. Aug. 28, 2007) (upholding exemption applicability to some "Terrorism Surveillance Program" records, but not as to others), previous decision, New York Times Co. v. DOD, 499 F. Supp. 2d 501 (S.D.N.Y. 2007)
  • Exemption 6
    • Long v. OPM, No. 05-1522, 2010 WL 681321 (N.D.N.Y. Feb. 23, 2010) (cross-appeals pending) (upholding exemption applicability to federal employee names and duty stations for some, but not all, federal employees who work in certain "sensitive" occupations)
    • Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 595 F.3d 949 (9th Cir. 2010) (rejecting exemption applicability to names of agents of the telecommunications carriers who communicated with the government in connection with NSA's warrantless electronic surveillance program)
    • Associated Press v. DOD, 462 F. Supp. 2d 573 (S.D.N.Y. 2006) (rejecting exemption applicability as to height and weight information on detainees at Guantánamo Bay)
    • Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100 (D.D.C. 2005) (upholding exemption applicability to records pertaining to TSA employees who helped develop former airline passenger screening program)
    • Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) (upholding exemption applicability as to some records pertaining to TSA employees who worked on "watch list" issues, but not as to others)
  • Exemption 7(A)
    • Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (upholding exemption applicability to internal questionnaire in the federal surveillance program targeting Muslim groups, because its disclosure undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire)
    • ACLU v. DOJ, 698 F. Supp. 2d 163 (D.D.C. 2010) (upholding exemption applicability to guides or samples that AUSAs use in drafting applications, orders, and declarations to obtain authorization for cell phone monitoring)
    • Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003) (upholding exemption applicability to names, arrest information, and detention locations of 2001 post-9/11 detainees, as well as identities of counsel), cert. denied, 540 U.S. 1104 (2004)
  • Exemption 7(C)
    • Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (upholding exemption applicability to some but not all records pertaining to 2001 post-9/11 detainees), aff'd on other grounds, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 540 U.S. 1104 (2004)
  • Exemption 7(E)
    • Elec. Privacy Info. Ctr. v. Dep't of Homeland Security, No. 13-260 (JEB) (D.D.C. Nov. 12, 2013) (rejecting claimed Exemption 7(E) applicability by pointedly repeating the Supreme Court's observation that "the Government may of course seek relief from Congress," quoting Milner, 131 S. Ct. at 1271)
    • ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (rejecting exemption applicability to "watch-list" related information)
    • N.Y. Civil Liberties Union v. Dep't of Homeland Sec., No. 09-5325 (S.D.N.Y. Mar. 10, 2011) (upholding exemption applicability to "the mechanics of cameras and license plate readers" deployed as part of DHS's "Lower Manhattan Security Initiative")
    • Lowenstein v. Dep't of Homeland Sec., No. 09-2225 (2d Cir. Nov. 22, 2010) (upholding exemption applicability to certain "techniques and procedures" involved in Operation Front Line, the "stated purpose of [which was] identifying and preventing potential terrorist activities")
    • Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (upholding exemption applicability to an internal questionnaire in the federal surveillance program targeting Muslim groups, because its disclosure "undoubtedly would allow the targets of these investigations to avoid the specific questions and methods recommended in the questionnaire")
    • ACLU v. DOJ, 698 F. Supp. 2d 163 (D.D.C. 2010) (upholding exemption applicability to guides or samples that AUSAs use in drafting applications, orders, and declarations to obtain authorization for cell phone monitoring)
    • Catledge v. Mueller, No. 08-3550, 2009 WL 1025980 (7th Cir. Apr. 17, 2009) (upholding exemption as basis for FBI neither confirming nor denying that requester is subject of PATRIOT Act "national security letter")
    • Asian Law Caucus v. DHS, No. 08-0842, 2008 WL 5047839 (N.D. Cal. Nov. 24, 2008) (upholding exemption applicability to "specific topics for questioning" persons seeking to enter U.S.)
    • Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) (upholding exemption applicability to certain records pertaining to airport "watch lists," but rejecting applicability as to others and requiring disclosure of "the legal basis for detaining someone whose name appears on a watch list")
    • Coastal Delivery Corp. v. U.S. Customs Serv., 272 F. Supp. 2d 958 (C.D. Cal. 2003) (upholding exemption applicability to cargo inspection rates at particular seaports), reconsideration denied (C.D. Cal. June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9th Cir. Aug. 26, 2003)
  • Exemption 7(F)
    • Elec. Privacy Info. Ctr. v. Dep't of Homeland Security, No. 13-260 (JEB) (D.D.C. Nov. 12, 2013) (rejecting claimed Exemption 7(F) applicability by pointedly repeating the Supreme Court's observation that "the Government may of course seek relief from Congress," quoting Milner, 131 S. Ct. at 1271)
    • Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003) (upholding exemption applicability to maps of potential flood areas below Hoover and Glen Canyon Dams)
    • Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002) (upholding exemption applicability as to some but not all records pertaining to 2001 post-9/11 detainees), aff'd on other grounds, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 540 U.S. 1104 (2004)
  • Miscellaneous

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