FOIA Update
Vol. X, No. 3
1989

In a decision essential to the willingness of agencies to make discretionary disclosures of exempt information, the Ninth Circuit Court of Appeals held that the prior release of records to a third party constitutes a waiver of FOIA exemptions "only for those documents released." Mobil contended that the EPA had waived its ability to apply FOIA exemptions to requested records by previously releasing similar and related records both to third parties and to Mobil. The Ninth Circuit flatly rejected this argument, declaring that a finding of waiver with respect to records that in fact had never been released "could tend to inhibit agencies from making any disclosures other than those explicitly required by law," because any such disclosure would thereby place at risk all related records. Such a result, it said, would "thwart the underlying statutory purpose, which is to implement a policy of broad disclosure of government records." It further held that even if the previously released records contained the same information as those still withheld, Exemption 5 protection would be applicable nonetheless.

In its first Exemption 6 ruling since the Supreme Court's decision in Reporters Committee, the D.C. Circuit Court of Appeals held that a list of names and home addresses of retired federal employees sought by NARFE is protectible. The Court began by recognizing a "significant" personal privacy interest in the retirees' "reasonable expectations of undisturbed enjoyment in the solitude and seclusion of their own homes" and the fact that disclosure would identify them as recipients of federal checks for retirement or disability. It then clarified its prior dictum in Arieff v. Department of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983), in which it had stated that Exemption 6 may not apply where the invasion of privacy would occur only as a "secondary effect" of the release. The D.C. Circuit explained that all that was intended there was that Exemption 6 not apply when there is little likelihood that the contemplated invasion will in fact occur. Here, it said, "there is little reason to doubt" that an invasion of privacy would result from repeated solicitations "in the mail, over the telephone, and at the front door." On the public interest side of the balance, the Court found that these "records say nothing of significance about 'what the[] Government is up to,'" and that NARFE's own intended uses of the list "are not relevant."

In a reverse-FOIA case involving complex procedural issues and over 8,000 documents relating to a foreign-bribery investigation, the D.C. Circuit Court of Appeals affirmed a district court decision which had remanded the case to the SEC for further proceedings because the administrative record was inadequate for judicial review under the Administrative Procedure Act. The D.C. Circuit first stated that the SEC had failed to give particularized reasons for its denial of confidentiality. It then rejected the SEC's argument that a reverse-FOIA plaintiff bears the burden of proving the non-public availability of information, finding that it is "far more efficient, and obviously fairer" for the burden to be placed on the party who claims that the information is public. The D.C. Circuit also held that in such a case as this it was not improper for the district court to order a document-specific explanation for the denial of confidential treatment inasmuch as the public availability of information is "inevitably document-specific."

Upholding a lower court opinion that clarified the scope of subsection (a)(1) of the FOIA (which requires that certain information be published in the Federal Register) and subsection (a)(2) of the Act (which requires that certain information be made available for public inspection and copying), the D.C. Circuit Court of Appeals ruled that opinions rendered by the Judge Advocates General of the Army and the Navy -- by which those officials have no authority to bind the agency -- are neither required to be published nor made available to the public under those subsections. Distinguishing the cases relied upon by the requester, the D.C. Circuit explained that the recipients of the opinions were not required to follow the advice set out and that the opinions neither operated as agency law nor constituted positions taken in final agency rulings. It therefore concluded that "the documents sought . . . do not contain statements of policy or interpretations adopted by the Department of the Army or the Department of the Navy."

In a decision reemphasizing the separate nature and workings of FOIA and discovery, the D.C. Circuit Court of Appeals reversed a lower court's ruling that Oliver North was barred by the legal principles of claim preclusion (res judicata) and issue preclusion (collateral estoppel) from pursuing a FOIA request that he had submitted only after having been been denied discovery on the same subjects in the course of his criminal prosecution. The D.C. Circuit held that the doctrine of claim preclusion was inapplicable here because the prior proceeding was a criminal one and, as such, could not have encompassed a FOIA claim. Similarly, it rejected the applicability of issue preclusion because the question considered in determining the availability of records in criminal discovery below -- i.e., whether they were legally relevant -- is different from a FOIA analysis, which turns instead on whether the information must be disclosed in accordance with statutory provisions. Remanding the case, the D.C. Circuit also ruled that the records in question were not necessarily covered by Exemption 7(A) even during the pendency of a temporary nondisclosure order issued in the underlying criminal proceeding.

In the first appellate decision to rule on the validity of OMB's FOIA fee-category definitions as implemented by an agency's fee regulation, the D.C. Circuit Court of Appeals upheld the agency's definition of "educational institution" and "representative of the news media," but it reversed the application of the latter category to the National Security Archive -- a private research institute and library that compiles and intends to sell sets of government documents indexed by subject matter. The D.C. Circuit first held that the Archive does not qualify as an "educational institution" merely because it intends to make information available to the public, "and that, to the extent that DoD's regulations provide that only schools are eligible for that status, those regulations mirror congressional intent." Nevertheless, it then held that the Archive qualifies as a "representative of the news media" because, unlike private libraries that merely make information available to the public, or "data brokers" that request records on behalf of others, the Archive's plan to sell document sets entails "the kind of initiative we associate with 'publishing or otherwise disseminating'" information -- i.e., it requires "gather[ing] information of potential interest to a segment of the public, us[ing] its editorial skills to turn the raw materials into a distinct work, and distribut[ing] the work to an audience." Finally, the D.C. Circuit held that the Archive's intent to sell its document sets does not constitute a "commercial use"; it concluded that Congress never intended requests from any "news media" entity, in support of its "news dissemination" function, to be considered as such. A petition for rehearing is pending.

Reversing an earlier panel ruling that had required disclosure of all information within the scope of any potential cross examination of testifying sources, the full First Circuit Court of Appeals, by a 3-2 margin, has held that information provided by confidential sources in connection with Smith Act prosecutions in the 1950's remains protected under Exemption 7(D) even though the sources testified at trial. The First Circuit concluded that any "potential cross examination" test would fail to provide "workable rules" for disclosure determinations, due to the speculative nature of attempting to delineate the scope of cross examination in a different forum months or years after trial. Relying on the plain language of Exemption 7(D), it went on to question whether the concept of waiver ever has any applicability to that exemption, stating that "before courts find any 'waiver' of exemption 7(D)'s protections, they must consider the interests of the law enforcement agency as well as those of the source; and this fact, in turn, would have to mean that 'waiver' by 'sources' will not automatically prove sufficient to release the information."

In an important decision interpreting Exemption 5's threshold language, U.S. District Court Judge Aubrey E. Robinson, Jr. held that a letter sent to Congress qualifies for deliberative process privilege protection under Exemption 5 and that the privilege protects Congress' deliberative process as well as that of the executive branch. The letter was sent by the Justice Department to the House Ethics Committee regarding its investigation of former Congressman Fernand J. St Germain. The requester argued that the letter failed to meet the exemption's "inter- or intra-agency" threshold requirement because it was sent to Congress, an entity not covered by the FOIA. While admitting that the FOIA does not define Congress or its committees as "agencies," Judge Robinson read Exemption 5 as broadly protecting any deliberations of the government, including those of Congress, and explained that "a strict reading [of the FOIA] need not be applied if to do so would frustrate the purpose of an exemption."

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