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FOIA Litigation SeminarFOIA Litigation Seminar

American Society of Access ProfessionalsAmerican Society of Access Professionals

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Instructors: Joel D. Miller

Caroline Smith

Anne Weismann

The “Coded” Vaughn Declaration

• Used mostly in the D.C. Circuit

• Particularly well-suited to cases with:

A large volume of records; or

• Used mostly in the D.C. Circuit

• Particularly well-suited to cases with:

A large volume of records; or

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g ;

Many exemptions asserted.

• Organizes documents by exemption

• Helps with structure of argument

• Combined Vaughn and affidavit

g ;

Many exemptions asserted.

• Organizes documents by exemption

• Helps with structure of argument

• Combined Vaughn and affidavit

The “Coded” Vaughn Declaration

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Other Types of Vaughn Declaration

• “Categorical” Declarations

• Narrative Declarations

Gl D l ti

• “Categorical” Declarations

• Narrative Declarations

Gl D l ti

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• Glomar Declarations

• Sample Declarations

• In Camera or Ex ParteDeclarations

• In Camera Review

• Glomar Declarations

• Sample Declarations

• In Camera or Ex ParteDeclarations

• In Camera Review

Exemption 1 Cases

• Exemption 1 protects from disclosure information that has been deemed classified "under criteria established

• Exemption 1 protects from disclosure information that has been deemed classified "under criteria established

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c ass ed u de c te a estab s edby an Executive order to be kept secret in the interest of national defense or foreign policy" and is "in fact properly classified pursuant to such Executive order."

c ass ed u de c te a estab s edby an Executive order to be kept secret in the interest of national defense or foreign policy" and is "in fact properly classified pursuant to such Executive order."

Exemption 1 Cases

• Applying the correct Executive Order• E.O. 13526

• Demonstrating proper classification

• Applying the correct Executive Order• E.O. 13526

• Demonstrating proper classification

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g p p• Compliance with E.O. standards

• Decision by original classification authority

• Proper classification category

g p p• Compliance with E.O. standards

• Decision by original classification authority

• Proper classification category

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Exemption 1 Issues

• Earning the court’s “deference”

• “Proving” harm to national security

• The role of the declarant

• Earning the court’s “deference”

• “Proving” harm to national security

• The role of the declarant

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The role of the declarant

• Whose opinion counts?

• The “need to know” classified information

• Segregability & classified information

The role of the declarant

• Whose opinion counts?

• The “need to know” classified information

• Segregability & classified information

Level of Deference Granted by a Court

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Level of detail required in declarations

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The Court concluded that:

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Why did the CIA get such deference?

• Who is their declarant?

• How much detail was necessary?

• Who is their declarant?

• How much detail was necessary?

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Classification Authority

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Level of Deference (cont.)

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The Other Side of the Coin

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Evening the Playing Field

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Knowing the Standard for Each Jurisdiction

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After in camera inspection -

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After in camera inspection -

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Exemption 3 Cases

Exemption 3 protects information that has been “specifically exempted from disclosure by statute.”

A Absolute prohibition on disclosure-- no

Exemption 3 protects information that has been “specifically exempted from disclosure by statute.”

A Absolute prohibition on disclosure-- no

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A. Absolute prohibition on disclosure no agency discretion

B. Limited prohibition on disclosure1.) particular matters to be

withheld; or

2.) specific criteria for withholding

A. Absolute prohibition on disclosure no agency discretion

B. Limited prohibition on disclosure1.) particular matters to be

withheld; or

2.) specific criteria for withholding

Exemption 3 -Particular Litigation Advice

• Has this jurisdiction – or any jurisdiction -- ruled on the issue?

• H l l d th t t t tli th ithh ldi

• Has this jurisdiction – or any jurisdiction -- ruled on the issue?

• H l l d th t t t tli th ithh ldi

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• How clearly does the statute outline the withholding provisions?

• Does the legislative history of the statute support agency assertion?

• Two step process in litigation.

• How clearly does the statute outline the withholding provisions?

• Does the legislative history of the statute support agency assertion?

• Two step process in litigation.

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Exemption 3 Cases

• Step One – Demonstrating that the statute qualifies as an Ex. 3 statute.

• Step One – Demonstrating that the statute qualifies as an Ex. 3 statute.

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• Step Two – Proving that the withheld information fits within the statute’s intended scope.

• Step Two – Proving that the withheld information fits within the statute’s intended scope.

Exemption 3 Cases

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Exemption 3 – The Court’s Guidance

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Exemption 3 Cases

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Exemption 3 & Glomar

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Exemption 3 Cases

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Exemption 4

• Protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

• Establish whether information is:

• Protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”

• Establish whether information is:

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commercial or financial and that the information was obtained from a “person.”

• After the these first two threshold questions are resolved, you must state whether the information is privileged or confidential.

commercial or financial and that the information was obtained from a “person.”

• After the these first two threshold questions are resolved, you must state whether the information is privileged or confidential.

Exemption 4

• Establish that although the submitter’s views were solicited and considered, the agency made the determination.

• Establish that although the submitter’s views were solicited and considered, the agency made the determination.

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• When relying on “substantial competitive harm” to protect information, agency should seek declaration from submitter also.

• When relying on “substantial competitive harm” to protect information, agency should seek declaration from submitter also.

Exemption 4Exemption 4

•• Remember that having an detailed administrative record isRemember that having an detailed administrative record is•• Remember that having an detailed administrative record isRemember that having an detailed administrative record is

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Remember that having an detailed administrative record is Remember that having an detailed administrative record is crucial for any “reverse FOIA” action as the agency is limited crucial for any “reverse FOIA” action as the agency is limited to that record in litigationto that record in litigation

Remember that having an detailed administrative record is Remember that having an detailed administrative record is crucial for any “reverse FOIA” action as the agency is limited crucial for any “reverse FOIA” action as the agency is limited to that record in litigationto that record in litigation

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Exemption 5 Cases

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Exemption 7 Threshold

▪ Exemption 7 Threshold Test:R d i f i

▪ Exemption 7 Threshold Test:R d i f i

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1. Records or information

2. Compiled for

3. Law enforcement purposes

1. Records or information

2. Compiled for

3. Law enforcement purposes

Exemption 7 Threshold

• Know the requirements for the jurisdiction

• Be sensitive to any perception of over-stepping

• Know the requirements for the jurisdiction

• Be sensitive to any perception of over-stepping

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• Explain connection between records and authorized law enforcement activity

• Explain connection between records and authorized law enforcement activity

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Exemption 7 Threshold

• The law enforcement threshold test i b d th j t i i l l

• The law enforcement threshold test i b d th j t i i l l

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is broader than just criminal law, so it may require a more detailed explanation.

is broader than just criminal law, so it may require a more detailed explanation.

Exemption 7 Threshold

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Exemption 7 Threshold

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Exemption 7 –Limits of Law Enforcement Threshold

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Exemption 7 –Limits of Law Enforcement Threshold

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Exemption 7 Threshold – Sample Declaration Language

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Exemption 7(D) Cases

Protects confidential sources – specifically1) the identities of confidential sourcesProtects confidential sources – specifically1) the identities of confidential sources

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2) all information provided by confidential sources if compiled during criminal or national security investigation

2) all information provided by confidential sources if compiled during criminal or national security investigation

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Is a source “confidential?”

Key elements:

a) express confidentiality

Key elements:

a) express confidentiality

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b) implied confidentiality based on nature of crime and source’s relation to crimeb) implied confidentiality based on nature of crime and source’s relation to crime

Exemption 7(D) Cases

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Exemption 7(D) Cases

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Exemption 7(F)

• Information “could reasonably be expected to endanger the life or physical safety of any individual”

• Information “could reasonably be expected to endanger the life or physical safety of any individual”

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individual

• Agency must demonstrate that release would endanger the life or safety of an individual

• And identify the circumstances that lead to this expectation

individual

• Agency must demonstrate that release would endanger the life or safety of an individual

• And identify the circumstances that lead to this expectation