FOIA Update
Vol. VI, No. 4
1985

Cochran v. United States, 770 F.2d 949 (11th Cir. 1985).

In a suit brought under the "wrongful disclosure" provision of the Privacy Act of 1974, 5 U.S.C. § 552a(b), the U.S. Court of Appeals for the Eleventh Circuit has held that information revealing an official finding of wrongdoing by a high government official "qualifies as a textbook example of information the FOIA would require to be disclosed." Major General Cochran had been found guilty at a disciplinary hearing of wrongful appropriation of a government aircraft and of using government facilities and manpower for his own benefit. In response to standing press inquiries into the matter, the Army issued a press release summarizing the findings and the discipline imposed. Although noting that General Cochran had a privacy interest in maintaining the secrecy of the disciplinary proceedings, the Eleventh Circuit found that the Exemption 6 balance "overwhelmingly favors the disclosure of information relating to a violation of the public trust." As this information was thus required to be released under the FOIA, the court of appeals held (even in the absence of a written request) that subsection (b)(2) of the Privacy Act excepted the disclosure from the Privacy Act's disclosure prohibition.

Kimberlin v. Department of the Treasury, 774 F.2d 204 (7th Cir. 1985).

In an opinion significant for its treatment of two separate categories of investigatory records alleged by the requester to have been disclosed at a prior criminal trial, the U.S. Court of Appeals for the Seventh Circuit squarely held the protection afforded by Exemptions 7(C) and 7(D) remains fully viable. With regard to the category of records withheld pursuant to Exemption 7(C), federal prisoner Brett Coleman Kimberlin -- who had sought documents "related to his arrest and the investigation into a series of bombings" -- contended that copies of a third party's driver's license and passport had been "introduced into evidence" in his own trial "and, as such, are no longer confidential." But the Seventh Circuit, "balanc[ing] the privacy interest of the individuals against any possible public interest in disclosure," affirmed the withholding based upon the fact that the requester "identifie[d] no public interest to be furthered by disclosure of this information and [that] there is a realistic possibility of harassment and invasion of privacy." Similarly, with respect to the document withheld pursuant to Exemption 7(D), the Seventh Circuit rejected Kimberlin's argument that the exemption's protection had been waived when its contents were revealed at trial by flatly holding that because "[t]he private citizens named in this document were given express assurances of confidentiality, . . . the subsequent disclosure of this information does not affect the exempt status of this information under the FOIA." In this connection, the court of appeals also reiterated that promises of confidentiality are "inherently implicit" in interviews conducted in a criminal investigation.

Greenberg v. FDA, 775 F.2d 1169 (D.C. Cir. 1985).

In a decision as significant for its procedural guidance on the requirements of summary judgment oppositions as for its ruling on Exemption 4, the U.S. Court of Appeals for the D.C. Circuit recently affirmed a grant of summary judgment to the FDA on the question of access to a customer list. The plaintiff had sought access to an FDA-compiled list of the on-site locations of "CAT" scanners purchased from a particular manufacturer. In affirming the district court's determination that the list was protectible under Exemption 4, the court of appeals held that although it was possible for competitors to construct "partial customer lists" from other sources, the comprehensive and up-to-date list at issue was nonetheless "valuable and confidential" information the disclosure of which would cause "great competitive harm." In so ruling, the D.C. Circuit "refuse[d] to adopt a reading of FOIA Exemption 4 that would allow competitors, who ordinarily must expend considerable amounts of time and money to acquire even an approximation of the FDA list, to benefit from agency disclosure at the expense of the submitters." Further, it rejected the plaintiff's argument that he was denied adequate discovery to oppose the summary judgment motion, holding that his conclusory assertions did not satisfy the requirements of federal civil procedure rule 56(f).

Ricchio v. Kline, 773 F.2d 1389 (D.C. Cir. 1985).

In a complex case with potentially far-reaching import, the U.S. Court of Appeals for the D.C. Circuit has held that the Presidential Recordings and Materials Preservation Act, 44 U.S.C. § 2111 note (Supp. 1985), rather than the FOIA, exclusively governs disclosure of Watergate Special Prosecution Force transcripts of tape recordings of President Nixon's White House conversations. Finding that in the Materials Act "Congress provided a comprehensive, carefully tailored and detailed procedure" for releasing presidential materials, the D.C. Circuit concluded that "release of the transcripts pursuant to the [FOIA] also 'might frustrate the achievement of the legislative goals of orderly processing and protection of the rights of all affected persons.'" In reaching this decision, the court of appeals chose not to decide whether the transcripts were "agency records" subject to the FOIA, even though the district court had determined that they were not.

Marrera v. United States Department of Justice, Civil No. 84-0232 (D.D.C. Aug. 28, 1985).

In a precedential decision on national security "Glomarization," U.S. District Court Judge Thomas F. Hogan has upheld the "neither confirm nor deny" response routinely given by the Justice Department's Office of Intelligence Policy and Review to all of its FOIA requesters. In this case, OIPR told the requester that it maintained no nonsensitive records on him, but it refused to confirm or deny whether it had any responsive record pertaining to its Foreign Intelligence Surveillance Act work. Expressly approving this approach, Judge Hogan agreed that "merely confirming or denying the existence" of information maintained by OIPR regarding the targeting of an individual for surveillance under that statute "would implicitly reveal classifiable information." He concluded that an agency acknowledgment as to whether it maintained such information concerning any named individual "would be tantamount to a confirmation or denial" that that individual was the subject of national security surveillance, a fact which would be useful to any hostile intelligence service in assessing U.S. awareness of foreign intelligence activities.

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