Item 7

Court Opinions and Actions Taken


Advanced Environmental Consultants, Inc. v. Department of the Army, C.A. No. 96-369, U.S.D.C.W.D. PA, filed February 28, 1996. In August 1995, plaintiff, through counsel, requested contract documents from Tooele Army Depot. Tooele did not have the documents because it forwarded them to the Defense Criminal Investigative Service (DCIS) which was investigating fraud. Tooele never answered plaintiff. DCIS denied plaintiff's FOIA request in August 1996, citing exemption (b)(7)(A) (law enforcement). Plaintiff subsequently received the requested documents through discovery in its criminal trial and we moved to dismiss the complaint as moot. Our motion to dismiss was granted and the case dismissed on January 17, 1997.

Dayton Newspapers, Inc., et al. v. Department of the Navy, et al. ("Dayton I") C.A. No. C-3-95-328 , U.S.D.C.S.D. OH, filed August 24, 1995. Plaintiffs filed suit challenging failure to timely respond to FOIA request seeking, among other things, records contained in the Army Courts-Martial Information System (ACMIS). The Government's cross-motion for summary judgment was filed on December 5, 1995. On September 12, 1996, the court overruled the plaintiff's cross-motion for summary judgment, and sustained in part and overruled in part the Government's motion. The Army released all non-exempt information from ACMIS. On September 8, 1997, the court granted the Army's motion for summary judgment and dismissed the complaint.

Ford v. West, et al., C.A. No. 96-N-2621, U.S.D.C. CO, filed November 13, 1996. Plaintiff seeks an unredacted copy of an AR 15-6 investigation report and legal review conducted in incident that occurred at his workplace, in which a "hanging noose" was placed over a chair in which he occasionally sat. Fitzsimmons Army Medical Center provided plaintiff with all of the releasable portions of the report and an SJA legal review. Our motion for summary judgment was granted on September 4, 1997. (Plaintiff has filed a notice of appeal.)

Harper v. United States , C.A. Nos. 92-462 and 92-464, U.S.D.C. OR, filed May 28, 1992. FOIA suit by convict serving life sentence for espionage challenging withholding of records under FOIA exemption 1, 5 U.S.C. 552(b)(1) (classified records). On July 5, 1995, Court of Appeals for the Ninth Circuit reversed district court's grant of Government's motion for summary judgment and remanded to the district court. The Government filed new Vaughn indices in August 1995 and January 1996. After complete briefing, the district court granted the Government's motion for summary judgment, and dismissed the cases on September 26, 1996. Plaintiff again appealed; however, on May 22, 1997, the Ninth Circuit granted plaintiff's motion to voluntarily dismiss his appeal.

Kiser v. Department of the Army, C.A. No. 3-96-CV-99-JTC, U.S.D.C.N.D. GA, filed September 5, 1996. Plaintiff filed suit seeking investigative records allegedly maintained by the Army on plaintiff (in addition to numerous records previously provided to plaintiff in response to his FOIA request). The Army provided the plaintiff with additional documents, then filed a motion for summary judgment. The court, on April 11, 1997, granted our motion for summary judgment and dismissed the complaint, ordering each party to bear its own costs.

Lee v. United States , C.A. No. 94-CV-02806, U.S.D.C. D.C., filed December 30, 1994. Retired lieutenant colonel filed suit to obtain release of DAIG records of investigation and TJAG Standards of Conduct Office (SOCO) inquiry. While on active duty, plaintiff had been relieved from battalion command and claims that his relief was in reprisal for testifying at a court-martial on behalf of an accused soldier. The Government filed motion to dismiss regarding the SOCO records and obtained a stay of proceedings regarding the DAIG records pending completion of administrative processing of the request. The court appointed a magistrate to review the case in April 1996. On May 16, 1997, the magistrate recommended that our motion for summary judgment be granted on the SOCO claim. On August 31, 1997, the district court adopted the magistrate's recommendations and granted us summary judgment regarding the SOCO report. The court dismissed the complaint without prejudice since the DAIG records appeal is still being administratively processed.

Lurie and Public Citizens Health Research Group v. Department of the Army, C.A. No. 95-CV-01085, U.S.D.C. D.C., filed June 7, 1995. Doctor and consumer advocacy group challenge partial denial of request for Army research on AIDS issues. Partial denials were based on FOIA exemption 5, 5 U.S.C. 552(b)(5) (deliberative process), and exemption 6, 5 U.S.C. 552(b)(6) (unwarranted invasion of personal privacy). On September 27, 1996, the court ruled that the Government's Vaughn index was inadequate, and ordered an in camera review of the withheld documents. The documents were provided to the court on November 12, 1996. On July 15, 1997, the court entered an order in favor of plaintiffs in part and in favor of the Army in part. (On October 21, 1997, a clarifying order was issued.)

Miller v. Department of the Army, C.A. No. 96-2491-JWL, U.S.D.C. KS, filed November 8, 1996. Plaintiff filed suit alleging that his FOIA request, seeking numerous documents related to a separate EEO complaint, had not been responded to by the Army. On December 6, 1996, the Army provided the plaintiff with an extensive amount of documents, and requested that the plaintiff voluntarily dismiss the complaint. The complaint was voluntarily dismissed on January 16, 1997.

Scott v. Department of the Army, et al.,
C.A. No. 96-4108, U.S.D.C.C.D. IL, filed November 12, 1996. Plaintiff, a former civilian employee at Rock Island Arsenal (RIA), filed suit alleging that RIA had failed to respond to her FOIA request for all employee records maintained by RIA on the plaintiff. We filed a motion to dismiss. On August 20, 1997, the court entered judgment in favor of defendants and dismissed the complaint.

Solid State Devices Inc. v. Department of the Army, C.A. No. CV96-6850-MRP (VAP), U.S.D.C.C.D. CA, filed September 27, 1996. Plaintiff seeks documents surrounding the Government investigation of products (semiconductors) manufactured by plaintiff. Redstone Arsenal denied the plaintiff's FOIA request under 5 U.S.C. 552(b)(5) (Attorney Work Product Privilege) and (b)(7) (Law Enforcement). The Government's answer was filed December 3, 1996. We filed a motion for summary judgment on February 24, 1997. On April 21, 1997, the court granted our motion and dismissed the complaint. .

Southwest Center for Biological Studies v. Department of Defense, et al., ("SCBS I"), C.A. No. CV95-794-TUC-NF, U.S.D.C. AZ, filed November 18, 1995. Plaintiff sued claiming the Army failed to respond to its FOIA request for documents relating to environmental impacts considered by the Secretary of Defense and BRAC Commission in making decisions about the expansion of Ft. Huachuca. DOD filed its Answer, alleging that all responsive documents had been provided. Plaintiff filed a motion seeking to compel a more adequate search, which DOD opposed on October 30, 1996. On July 3, 1997, the court adopted the magistrate's recommendation of February 27, 1997, denied plaintiff's motion and dismissed the complaint.

Southwest Center for Biological Studies v. Department of Defense, et al., ("SCBS II"), C.A. No. CVC 96-149-TUC-NF, U.S.D.C. AZ, filed March 7, 1996. Plaintiff sued claiming the Army failed to respond to its December 6, 1994, FOIA request for copies of correspondence between Congress and DoD concerning ongoing legal issues affecting Fort Huachuca and the BRAC process. Plaintiff received all of the documents that it sought, and then filed a motion seeking attorney fees, which DoD opposed on October 30, 1996. On July 3, 1997, the court, adopted the magistrate's recommendation of February 27, 1997, denied plaintiff's motion and dismissed the complaint.

Martin & Rylander, P.C. v. United States, C.A. No. 1:97CV00750, U.S.D.C. D.C., filed April 15, 1997. Plaintiff law firm alleges they submitted a FOIA request for certain contract documents to Industrial Operations Command (IOC). IOC claims it never received the request. We released the requested documents and plaintiff dismissed the lawsuit on August 28, 1997. However, the parties disagree as to whether plaintiff is entitled to attorney's fees.

Kusila v. Department of the Army, C.A. No. 95-CIV-1385, U.S.D.C.E.D. NY, filed April 28, 1995. Plaintiff filed suit to obtain an unredacted copy of the CID investigative report regarding her soldier-son's death in an automobile accident. The Army filed its answer on August 7, 1995. The CID report was released to plaintiff. Plaintiff is pursuing attorneys fees.


Alonzo A. Swann v. Secretary of the Navy, C. A. No. H91-0062, U.S.D.C.N.D. IN. In this case, the plaintiff alleges disability disputes and civil rights violations against the Veterans Administration (VA). To support his allegations, the plaintiff requested through the FOIA copies of his medical records, which he had already received through the VA. The government filed a Motion to Dismiss for failure to state a claim. The case was dismissed on February 21, 1997.

Martin Marietta Corp., Orlando v. John H. Dalton, Secretary of the Navy and the U.S. Department of the Navy, C. A. No. 94-2702 TPJ, U.S.D.C. D.C. This is a Reverse FOIA action that was filed by plaintiff on December 16, 1994, to enjoin the disclosure of confidential information (cost and fee; component and configuration pricing; and technical/management information) in five Martin Marietta contracts for the Consolidated Automated Support System (CASS). The complaint focused on a pending CASS procure- ment for Lots V through IX, wherein Martin Marietta alleged that release of information from the previous five CASS contracts would cause significant, irreparable harm to their competitive position. The Navy's answer was filed on March 30, 1995, seeking summary judgment. Plaintiff filed opposition to the Navy's summary judgment motion and a cross motion seeking summary judgment on May 26, 1995. On July 11, 1995, plaintiff filed an amended complaint to include information pertaining to a recently awarded CASS contract. Only July 12, 1995, the Navy filed a motion for enlargement to July 28, 1995.

A status hearing was held before Judge Jackson on February 4, 1997. On August 8, 1997, the court granted the Navy's motion for summary judgment, denied plaintiff's cross-motion for summary judgment and ordered the action dismissed with prejudice. The court found that the financial/commercial information in the CASS contracts was "required" and not "voluntary," and was, therefore, subject to the tests for withholding established in National Parks; concluded that there would be no impairment of the government's ability to obtain such information in the future; rejected the argument that data from two of the CASS contracts was public domain since it had been previously disclosed under the FOIA; and found that the Navy's conclusion, that neither the revelation of cost and pricing data nor proprietary management strategies were likely to result in such egregious injury to Martin Marietta as to disable it as an effective competitor for business in the future, was not arbitrary or capricious or an abuse of its discretion. The basis for the court's finding was its conclusion that Martin Marietta failed to bear its burden of demonstrating how it would suffer substantial harm if the contracts were open to public scrutiny.

Robert Russell v. Cheney, C. A. No. 93-0003, U.S.D.C. D.C. Plaintiff was convicted of first degree murder of his estranged wife, Shirley Gibbs Russell. Plaintiff's conviction was affirmed by the Court of Appeals for the Fourth Circuit and he is currently serving life in prison without parole. In 1992, plaintiff submitted a FOIA request to the Naval Criminal Investigative Service (NCIS) seeking all information relating to the "NIS investigation." A second request was submitted to the Commandant of the Marine Corps (CMC). Neither request directed the NCIS to specific agencies, offices, or storage facilities where documents could be found. Plaintiff contends that an inadequate search was conducted because other agencies were not searched (Naval Intelligence, Secretary of the Navy, Office of the Judge Advocate General, and the Prince William County Policy Department). The original requests had not requested that these entities be searched. Plaintiff contends that defendants should have known to search these entities because they were referenced in documents that were released to the plaintiff. As in Kowalozyk v. Department of Justice, 73 F.2d 386 (D.C. Cir. 1996), an agency is only required to "conduct a search reasonably calculated to uncover all relevant documents" and that the agency is not required to speculate about or exhaust all potential leads. The court found that the NCIS had conducted an adequate search and, on September 11, 1997, dismissed the case.

Tidewater Marine, Inc. v. Department of the Navy, C.A. No. 1:95CV01668, U.S.D.C. D.C. This action was filed on August 30, 1995, seeking injunctive relief under FOIA from withholding records by Military Sealift Command. The records sought are abstracts of offers and evaluations of offerors in a negotiated procurement (N623787-95-R-1304) for the time charter of up to two tugs for Mayport, Florida. A Joint Stipulation for Dismissal without prejudice was filed by the parties on November 3, 1995, pending an administrative decision on an appeal. Following denial of the appeal, Tidewater reinstated the suit in early 1996 as number 95-2290 (GK). On March 25, 1997, the court granted defendant's motion for summary judgment.


Myra R. Edwards v. Department of the Air Force, C.A. No. DKC-95-3115, U.S.D.C. MD, October 16, 1995. Plaintiff filed suit seeking Air Force Board for Correction of Military Records (AFBCMR) documents which showed her AFBCMR application was untimely. No documents were originally released as it was clear Plaintiff was using FOIA to challenge the AFBCMR decision. In an abundance of caution, her original application and her husband's death certificate were released. The District Court dismissed the plaintiff's FOIA claims and remanded the case back to the AFBCMR for further proceedings.

Gary W. Bowen v. Department of the Air Force, et. al., C.A. No. 96-5926-RAP, U.S.D.C.C.D. CA, August 26, 1996. Plaintiff filed suit seeking, under the Privacy Act and Freedom of Information Act, documents relating to himself and members of the Alaska Air National Guard. Motion to dismiss granted and case dismissed without prejudice on February 12, 1997.

Thelma C. Porter v. Army and Air Force Exchange Service, C.A. No. 8:CV96-00376, U.S.D.C. NE, July 3, 1996. Plaintiff filed suit under the Freedom of Information Act alleging the Army and Air Force Exchange Service (AAFES) failed to respond timely to a request for records. Case settled and on November 27, 1996, a Stipulation for Dismissal With Prejudice was granted.

DGR Associates, Inc. v. Widnall et. al, C.A. No. 3:96cv229/RV, U.S.D.C.N.D. FL. Temporary restraining order (TRO) granted May 1, 1996. Plaintiff obtained a TRO against the Air Force to prevent the release of unit prices from a housing maintenance contract on Tyndall Air Force Base, Florida. A preliminary injunction was issued on May 10, 1996. Court issued permanent injunction on April 23, 1997.

DGR Associates, Inc. v. Widnall, C.A. No. C-3-96-281, U.S.D.C.S.D. OH. Temporary restraining order (TRO) filed July 23, 1996 and granted. Parties agreed to release of certain information and to re-evaluate release of remaining information. DGR withdrew the complaint and have made their submissions to the Air Force on release of remaining material. An agreement was reached on what to release to the requester. Case was withdrawn and closed in 1997.

Jeffery E. Jernigan v. Air Force, C.A. No. 95-35191, U.S.D.C.W.D. WA, November 18, 1993. Plaintiff sought redress for events surrounding preferral of court-martial charges, subsequent Article 15, and retirement from the Air Force. The district court dismissed the case as Feres barred. On appeal, the 9th Circuit reversed stating that the FOIA issues of the case were not addressed and remanded back to the district court. The case was dismissed by the district court in June 1997.

Mazen Talwalbeh v. Department of the Air Force et al., C.A. No. SA CV-95-163 GLT (EEX), U.S.D.C. D.C., June 29, 1995. Plaintiff filed suit asking for production of all documents concerning the reason why he had been denied access to Edwards Air Force Base, California. Plaintiff filed suit 2 years after his initial request, but before any release was made. Subject matter includes classified FBI information. Vaughn Index filed July 19, 1996. Defendants' Motion for Summary Judgment granted August 19, 1997.

Ruttenberg v. Air Force, C.A. No. 96-WM-2266, U.S.D.C. CO, September 26, 1996. Plaintiff requested documents concerning active duty officers stationed at the Air Force Academy who wrote dishonored checks to all Army and Air Force Exchange Service (AAFES) and non-appropriated fund facilities at the Air Force Academy between June 1992 and May 1996. The Air Force did not respond to plaintiff's request in a timely fashion. The Air Force responded to plaintiff's request in December 1996, releasing the information she requested. Plaintiff and defendant stipulated to dismissal of the case on January 2, 1997.

        DEFENSE INVESTIGATIVE SERVICE (Renamed Defense Security Service)



Nation Magazine and Max Holland v. Department of State, Central Intelligence Agency, Department of Justice, and Department of Defense, C.A. No. 92-2303 (JHG), U.S.D.C. Plaintiff filed suit because Federal defendants declined to release files pertaining to H. Ross Perot.On October 7, 1997, U.S.D.C. amended Memorandum Opinion and Order of August 18, 1995, and directed DIS to review and disclose any responsive, non-exempt records based on the Court of Appeals' decision on the case of Nation Magazine v. U.S. Customs Services. DIS later filed status reports reporting compliance with the October 7th Order. Upon consideration of the status reports by Defendant DIS, which report compliance with previous orders, and in order to bring this matter to a close, it was ordered by the court, that absent and objection by the plaintiff's, filed on or before January 22, 1997, the court would dismiss Defendants Department of Defense, Department of Justice from this litigation.


CPSR v. NSA, et al., C.A. No. 93-1074, U.S.D.C. D.C., June 28, 1993. Plaintiff alleged failure of NSA and NSC to produce documents to FOIA requester within 10 days of request. Open America granted September 1, 1994. Action stayed until March 31, 1995. CPSR's action seeks disclosure of materials withheld pursuant to the FOIA. On February 10, 1997, the court ordered NSA to file a supplemental in camera declaration. NSA's Motion for Summary Judgment granted on July 14, 1997.

William Longbehn v. U.S. Department of Justice, et al., C.A. No. 96-264 RCL, U.S.D.C. D.C., February 12, 1996. Plaintiff alleges inadequate search. Declaration signed March 12 and filed March 15, 1996. IRS motion to dismiss granted September 16, 1997. By separate orders, all claims and defendants have been dismissed except for proceedings against the FBI, which proceedings were stayed until May 31, 1999, by order of May 6, 1997.


Executive Summary

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