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#1 foolish

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Posted 24 February 2013 - 08:37 PM

Does Federal Rules of Civil Procedures Rule 8 (d)(3) apply to Freedom of Information Act 5 U.S.C.§ 552 et seq., For instance can a party state as many separate claims . . as they have, regardless of its consistency under Rule 8

#2 Tax_Counsel

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Posted 24 February 2013 - 09:41 PM

Yes, of course, FRCP Rule 8 applies to FOIA cases that are litigated in U.S. District Court. FOIA cases are litigated like any other civil lawsuit in the district court. Indeed, it was the failure to meet the demands of Rule 8 that caused your last FOIA appeal to the District Court to be dismissed as I recall. Specifically, it was dismissed for failing to adequately state the facts that support a claim to the relief sought.

Are you now planning to sue ICE on the latest FOIA request? And is this latest request a 3rd request for the same information as you requested the first two times around? Did the agency appeal of the request get rejected? If this is another go around on effectively the same request, you may have additional hurdles that you did not have before.

#3 foolish

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Posted 24 February 2013 - 10:10 PM

Yes, of course, FRCP Rule 8 applies to FOIA cases that are litigated in U.S. District Court. FOIA cases are litigated like any other civil lawsuit in the district court. Indeed, it was the failure to meet the demands of Rule 8 that caused your last FOIA appeal to the District Court to be dismissed as I recall. Specifically, it was dismissed for failing to adequately state the facts that support a claim to the relief sought.

Are you now planning to sue ICE on the latest FOIA request? And is this latest request a 3rd request for the same information as you requested the first two times around? Did the agency appeal of the request get rejected? If this is another go around on effectively the same request, you may have additional hurdles that you did not have before.


Yes of course I am, I am planning to file a FOIA complaint, that’s why I have be extra cautious of the information I put on this public board (it simply might work to my disadvantage to ask important questions), actually this request was for agency to conduct a more rigorous and thorough search of its records for the missing records responsive to request. I convinced them why their first search or the last search was “inadequate” as matter of law, which they this time agency did not state that the records responsive to records could not be located or was destroyed. See: 6 C.F.R § 5.6©) Like it did the last time, instead they are withholding them.

No, I believe I cleared the most important hurdles and that was having agency not deny my request because the records could not be located or was destroyed like it did last time.

#4 Tax_Counsel

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Posted 25 February 2013 - 02:49 AM

No, I believe I cleared the most important hurdles and that was having agency not deny my request because the records could not be located or was destroyed like it did last time.


So this time they found the records but withheld them based on one or more exemptions? If that’s the case, then the extra hurdles I had in mind wouldn’t come up. I assume that you’ve heard from the agency appeal the agency still is withholding the records. You’ll need to draft the complaint this time to allege the facts that support the complaint. But that should be much easier here than in the case where the agency says it simply doesn’t have the records. Hopefully you’ve researched the law regarding the exemption(s) they’ve claimed because you’ll be going up against DOJ lawyers who are well versed in these rules. You are helped, though, in that the initial presumption here favors release of the records and it is up to the agency to defend the exemptions it claimed.

#5 foolish

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Posted 25 February 2013 - 04:42 AM

So this time they found the records but withheld them based on one or more exemptions? If that’s the case, then the extra hurdles I had in mind wouldn’t come up. I assume that you’ve heard from the agency appeal the agency still is withholding the records. You’ll need to draft the complaint this time to allege the facts that support the complaint. But that should be much easier here than in the case where the agency says it simply doesn’t have the records. Hopefully you’ve researched the law regarding the exemption(s) they’ve claimed because you’ll be going up against DOJ lawyers who are well versed in these rules. You are helped, though, in that the initial presumption here favors release of the records and it is up to the agency to defend the exemptions it claimed.


Well presumably they found the records since the agency was required to have initially notified me that the records could not again have been located, isn't that so? Yes I think that a biggest hurdle of alll was to have agency not "state" in their denial letter that the records could not be located as they did the last time.

The exemptions that they did apply were to "post" decisional documents that I believe apply only to "pre"decisional documents. Yes their will be board of lawyers looking to this specific documents. So tell me in round off way am I right once the 'pre' decisional period of document disappears and time turns it into a 'post' decisinal document that actually was never used, do they lose their exemption protection?

#6 foolish

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Posted 25 February 2013 - 03:18 PM

I have two questions my first question is whether City of Concord v. Ambrose, 333 F.Supp. 958 (N.D.Cal., 1971) remain good law?

And if it continues to be good law, then my second question turns to am I reading Concord page 333 F.Supp. at 961 correctly, that any transmission of memoranda’s from the a federal agency to the state would not be an "inter-agency" memorandum for purposes of the Act, and the exemption could not apply to material which was so distributed. Id.
Would Concord page 333 F.Supp. at 961, apply if the situation were reversed to memoranda’s or any other material transmitted from the State to a federal agency?

#7 Tax_Counsel

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Posted 25 February 2013 - 05:49 PM

Well presumably they found the records since the agency was required to have initially notified me that the records could not again have been located, isn't that so? Yes I think that a biggest hurdle of alll was to have agency not "state" in their denial letter that the records could not be located as they did the last time.


Don't assume anything. If you asked for a very specific document in your request then yes, either the agency should tell you it didn’t find the record, that it did find it and release it to you, or that it did find it but won’t release it based on one or more exemptions. If you simply asked for for a certain group of documents and the agency says that it has found responsive records but won’t release them based on one or more exemptions, don't assume that they found all the records they had at some earlier point in time. The agency would basically be saying that what it did find was all that there was which was responsive to your request. That may mean that there were other documents that might have been reponsive that it had sometime earlier but that were destroyed, lost, or otherwise could not be located. It might mean that’s just what the agency found so far and isn’t a complete reponse yet. The exact language of the response matters. You need to read the response carefully against the request you made to see what gaps, if any, may exist.


The exemptions that they did apply were to "post" decisional documents that I believe apply only to "pre"decisional documents. Yes their will be board of lawyers looking to this specific documents. So tell me in round off way am I right once the 'pre' decisional period of document disappears and time turns it into a 'post' decisinal document that actually was never used, do they lose their exemption protection?


Without knowing the exact exemption the agency claimed and what sort of documents are at issue, I can’t comment on whether the exemption is appropriate. However, generally speaking, to the extent that the agency says that a document is pre-decisional, that usually means the document was prepared to aid some official in making a decision. Those documents are protected even after the decision is made and need not be released. What would be subject to release, if no other exemption covers it, is the document that states what the final decision was. The reason for this exemption is that it allows agency personnel to give their thoughts and views on a matter without worry that their advice, which may not have been taken, may later be subjected to criticism or ridicule. By freeing agency personnel to be candid with the decision maker, he or she will get the best possible input and thus hopefully make better decisions. The idea is that what really matters is the actual decision made and the stated reasons for that decision, which are typically reflected in the document that announces the decision. So that’s what the public has a right to see (unless protected by some other exemption).

#8 foolish

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Posted 25 February 2013 - 08:36 PM

Don't assume anything. If you asked for a very specific document in your request then yes, either the agency should tell you it didn’t find the record, that it did find it and release it to you, or that it did find it but won’t release it based on one or more exemptions. If you simply asked for for a certain group of documents and the agency says that it has found responsive records but won’t release them based on one or more exemptions, don't assume that they found all the records they had at some earlier point in time. The agency would basically be saying that what it did find was all that there was which was responsive to your request. That may mean that there were other documents that might have been reponsive that it had sometime earlier but that were destroyed, lost, or otherwise could not be located. It might mean that’s just what the agency found so far and isn’t a complete reponse yet. The exact language of the response matters. You need to read the response carefully against the request you made to see what gaps, if any, may exist.



The reason why I assumed that they are withholding the documents is for two valid reasons the first reason is that (1) I requested agency conduct a second more thorough and confined search for "specific" documents (2) the request letters was literally soaked with what specific documents was sought that made it impossible to ignore or confuse.

I assumed that agency found the specific documents even though their denial letter did not mention the my specific request, my appeal made it a point that the requested specfic documents did not disappear simply because it was not mentioned in the denial letter.

#9 Tax_Counsel

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Posted 25 February 2013 - 09:14 PM

I have two questions my first question is whether City of Concord v. Ambrose, 333 F.Supp. 958 (N.D.Cal., 1971) remain good law?


First, the case is not “law” because it is a decision of a U.S. District court sitting in its capacity as a trial court (rather than in its role as an appellate court for bankruptcy cases). Thus, the decision in the case is not binding on any court and its value in any argument to a court in any other case is persuasive only. It is not a very good case as persuasive authority, in my view.

The court’s ultimate conclusion that the material sought was exempt because it was for law enforcement purposes was correct. But its reasoning in getting there was flawed. The court started out fine when it stated that the material was not available to the plaintiff under §552(a)(2)(C ). That provision requires agencies to make available “administrative staff manuals and instructions to staff that affect a member of the public.” The legislative history stated that the term administrative was meant to distinquish it from law enforcement matters, the latter of which need not be disclosed under §552(2)(C ). So far, so good. But then the court curiously concludes that if the material is not available under §552(a)(2)(C ) that it is also not available under §552(a)(3). The court stated that ended its inquiry.

That means two things. One, that last conclusion was wrong, which I’ll explain more in a moment. And two, all the discussion that follows about the exemptions from disclosure under §552(b ) is not relevant to the holding in the case and thus is dicta. Dicta is not law even in an appellate court decision, and thus only has persuasive value. Here, that’s not very much because the court doesn’t really explain much how it reached some of the conclusions on the exemptions in (b ). Evidently, the judge didn’t put much thought into that part of the opinion as he evidently didn’t feel it was necessary as he had resolved the case on other grounds.

The problem is that his conclusion that if it wasn’t available under §552(a)(2) that it must also not be available under § 552(a)(3) would make §552(a)(3) meaningless because if he was correct, no one would ever be able to get anything under (3). He misunderstood the scheme of the statute. Under FOIA, the agency must make the items in §§552(a)(1) and (2) available to the public without a need for a request. These are the sorts of things the agency must publish or otherwise make freely available, like putting it up on the agency web site. Subsequent amendments to FOIA after the City of Concord case make that quite clear. These were records that Congress felt would likely have a wide interest from the public. But there are a whole lot of records an agency has that may not be of interest to a lot of people. Congress wanted a way for the few people who might be interested in those other records to have a way to get them. That’s the reason for §552(a)(3). So, while the agency might not have to release it under (a)(1) or (2), it might still have to release it under (a)(3).

That being the case, once the court concluded it did not have to be made available under §552(a)(2), it needed then to consider the exemptions from disclosure available under §552(b ). This it really didn’t do. It made a cursory discussion of the exemption for material that relates “solely to the internal personnel rules and practices of an agency” in § 552(b )(2) and for inter-agency and intra-agency memoranda and letters in §552(b )(5). The court is correct that neither of those would have exempted the material in this case. But why discuss those when it’s pretty obvious that it wasn’t really close to either of those? On the other hand, the exemption for law enforcement records in §552(b )(7) is the one that squarely applies and should have been the basis for its ruling, but the court doesn't even mention it. My research suggests that (b )(7) was part of FOIA at the time of the case, and if that’s correct, the discussion is odd in neglecting to address it.

In any event, the ultimate ruling that the material is exempt from disclosure was right, but the discussion of how the judge got there is clearly wrong, at least given the way the statute reads today. For that reason, the opinion lacks much persuasive value in my mind. Moreover, if the discussion was correct, it would likely work against you, not for you.


And if it continues to be good law, then my second question turns to am I reading Concord page 333 F.Supp. at 961 correctly, that any transmission of memoranda’s from the a federal agency to the state would not be an "inter-agency" memorandum for purposes of the Act, and the exemption could not apply to material which was so distributed. Id.


Again, that part of the decision is dicta, and moreover the judge didn't spend much effort in analyzing that exemption. First, the material is likely not “memoranda” to begin with, and he doesn’t address that part of it. He assumes, however, that if the material were disclosed to the state that it no longer meets the definition of “inter-agency or intra-agency memorandums or letters.” The disclosure to the state would indeed be a problem, but not necessarily because it fails to meet that definition. It matters who the author and recipient of the memo were. If the author and recipient were both officials of federal agencies, then it qualfiies as “inter-agency or intra-agency memorandums or letters.” If either the author or recipient was a state official (or anyone else other than a federal agency official), it would not be within that definition.

If it qualifies as inter-agency or intra-agency memorandums or letters, that alone doesn’t protect it. It must also be the type of memo that by would be protected from disclosure in discovery in a lawsuit against the agency. For example, if the IRS sought the advice of the DOJ Tax Division on whether it would support a particular position in a litigated case, and the DOJ wrote a memo to the IRS explaining its views on the matter, that would be protected under the attorney-client privilege (DOJ as the attorney and IRS as the client) and the taxpayer whose case this involves could not get it in discovery. This rule prevents that taxpayer from doing an end-run around the discovery rules by using FOIA instead. (And when I was at IRS I saw taxpayers try that very tactic.) That privilege could be waived, however, if the IRS disclosed it to some outside third party, like the state. That might then also blow the exemption available under §552(b )(5), though I’ve not seen a case directly addressing that point.

The bottom line, if you want my view, is that the City of Concord case is pretty worthless.




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