FOIA Update
Vol. XII, No. 3
1991

Mayock v. Nelson, 938 F.2d 1006 (9th Cir. 1991).

In the first major challenge to an agency's justification for exceeding the FOIA's time deadlines on the basis that it is exercising "due diligence" in dealing with "exceptional circumstances" under 5 U.S.C. § 552(a)(6)(C), the Ninth Circuit Court of Appeals has reversed an unprecedented district court injunction and has remanded the case for further proceedings. The district court had concluded that the increasing numbers of FOIA requests received at INS's San Francisco district office did not constitute an "exceptional circumstance" and had ordered it to comply strictly with the Act's time limits. INS argued in a closely watched appeal of that injunction that it was acting with "due diligence" given the flood of immigration activity in that district. But without interpreting either the term "exceptional circumstances" or "due diligence," the Ninth Circuit merely remanded the case for resolution of factual disputes over whether INS had attempted to obtain funds to reduce its backlog and whether INS, as a matter of policy, gives priority to FOIA requests from subject of imminent deportation proceedings.

Shell Oil Co. v. IRS, Civil No. 89-468 (D. Del. Aug. 2, 1991).

In a decision dealing with "waiver" of a FOIA exemption, the District Court for the District of Delaware ruled that an agency waived its ability to withhold an internal agency document under Exemption 5's deliberative process privilege merely through the public reading of the document's contents. The disclosure in question occurred at a meeting of federal officials and oil industry representatives at which an IRS employee read aloud an agency definition of the regulatory term "tar sands" from an internal draft. Rejecting the IRS's argument that such access given to a small group should not amount to a waiver, the District Court reasoned that "permitting officials coyly to release information once and then refuse to do so again would contradict Congress' desire to have agencies disclose to the entire regulated public, not just to a select few individuals who, through influence or mere serendipity, happen to benefit from an official's decision to disclose."

Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991).

In a decision requiring an unprecedented degree of public justification for the withholding of law enforcement records -- including classified information and identities of confidential sources -- the Ninth Circuit Court of Appeals has ordered the FBI to provide exceptionally detailed Vaughn declarations in order to withhold portions of its files on former Beatle John Lennon. Based upon its novel view that a Vaughn index must be designed to provide as much specificity as necessary "to enable the requester to contest the withholding agency's conclusion[s]," the Ninth Circuit not only rejected the FBI's coded Vaughn index, it also found the district court's in camera review of the actual records at issue insufficient to remedy any perceived inadequacy in the agency's declarations. Startlingly, the Ninth Circuit even offered concrete "examples" of how the FBI might have described specific documents, but in so doing went so far as to disclose some of the sensitive information at issue in the case. It also sharply departed from prevailing case law on the "categorical" withholding of certain standard items in law enforcement files, demanding instead entirely "individualized" justifications for the withholding of any information under Exemptions 7(C) and 7(D). A petition for rehearing en banc is pending.

Sibille v. Federal Reserve Bank of New York, 770 F. Supp. 134 (S.D.N.Y. 1991).

In a thoughtful decision applying the principles of Bureau of Nat'l Affairs, Inc. v. Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984), and its progeny, District Court Judge Pierre N. Leval has held that handwritten notes of meetings and telephone conversations taken by two agency employees for their personal convenience are not "agency records" under the FOIA. Analyzing the "totality of the circumstances," including the manner in which the documents were prepared and stored, Judge Leval examined how they were used by the employees. He found that the notes were merely "partial reflections of conversations" used by each employee "to enhance his or her own recollection." Although one employee examined her notes to verify a chronology of events in preparation of congressional testimony by the head of the agency, Judge Leval concluded that none of the documents were "placed in the agency's files," nor were they "written for circulation" or even "conducive to consultation" among agency personnel. He rejected the requester's argument that this case was "novel" in that the notes were the only written account of the meetings and conversations involved, pointedly declining to base a decision as to a document's FOIA status upon whether its "contents . . . are available fromother sources."

Public Citizen v. Farm Credit Admin., 938 F.2d 290 (D.C. Cir. 1991).

Reiterating that Exemption 8 " was drawn to protect not simply each individual bank but the integrity of financial institutions as an industry, " the D.C. Circuit Court of Appeals has held that Farm Credit Administration examination reports fall within that exemption. Public Citizen sought access to credit examination reports prepared by the FCA on behalf ofthe National Consumer Cooperative Bank, a nondepository institution which Public Citizen argued did not qualify as a "financial institution" under Exemption 8. The D.C. Circuit flatly rejected this argument, holding that institutions such as the NCCB that do not receive deposits that can be withdrawn on demand by the public are nevertheless "financial institutions" within the plain meaning of that statutory term. It emphasized the broad language of Exemption 8, observing that it has "twice refused to limit [the exemption] to cases in which disclosure of an examination report could threaten the solvency of the type of institution examined."

Schreibman v. Department of Commerce, Civil No. 91-0339 (D.D.C. June 28, 1991).

In the first application of Exemption 2 to "vulnerability assessments" of computer security systems, District Court Judge John Garrett Penn has held such records to be well within that exemption's "circumvention" protection. Applying standards established in Crooker v. BATF, 670 F.2d 1051 (D.C. Cir. 1981) (en banc), and elaborated upon in the Summer 1989 issue of FOIA Update, Judge Penn found that "high 2" protection is appropriate for such records where there is "a significant risk that the security required for computer systems would be circumvented" by disclosure. The records at issue contained "an assessment of vulnerabilities of [agency] computer security plans" prepared under the Computer Security Act of 1987. Judge Penn concluded that disclosure could "result in damage to government programs in circumvention of" that Act in that it could "render such plans 'operationally useless.'" However, he also ordered that any reasonably segregable nonexempt portions of the records be disclosed.

FLRA v. Department of the Navy, 944 F.2d 1088 (3d Cir. 1991).

Adhering to the Supreme Court's Reporters Committee decision, the Third Circuit Court of Appeals has followed the D.C. and First Circuits in holding unequivocally that the public policy embodied in the Federal Labor Management Relations Act cannot be factored into the public interest balancing process under Exemption 6. In viewing a request by the American Federation of Government Employees for the names and home addresses of its bargaining unit employees, the Third Circuit found that there were alternative means available for AFGE-employee communication and that disclosure would serve the union's interests only. It emphasized that a proper Exemption 6 analysis "does not turn upon the identity or particular purpose of the requesting party" and that "the only disclosure interest relevant to Exemption 6 is the interest in ascertaining the character or conduct of the government agency." Furthermore, the Third Circuit added, the information must itself directly show the operation of the government: Though there might be "some 'second-stage' FOIA-related disclosure benefit . . . which could emerge after communication between a union and employees . . . 'so attenuated a relationship to governmental activity'" cannot, it concluded, warrant disclosure.

Painting & Drywall Work Preservation Fun, Inc. v. HUD, 936 F.2d 1300 (D.C. Cir. 1991).

Also applying Reporters Committee, the D.C. Circuit Court of Appeals has now firmly held that Exemption 6 protects the names and home addresses of workers contained in certified payroll records of federal construction projects. Analyzing the privacy interests in such information, the D.C. Circuit rejected the argument that employee expectations of privacy are diminished by either the posting of wage scales required by the Davis-Bacon Act or the submission of certified payroll records to federal agencies. It found that disclosure to this requester under the FOIA would result in a significant invasion of the workers' privacy "because that same information would have to be provided, for example, to creditors, salesmen, and union organizers." In considering the other side of the balance, the D.C. Circuit rejected the requester's argument that the public interest in allowing it to monitor federal agencies' efforts to enforce the Davis-Bacon Act outweighed the workers' personal privacy interests. It concluded that even though disclosure could possibly facilitate the monitoring of federal enforcement efforts, such an "attenuated public interest in disclosure does not outweigh the construction workers' significant privacy interest in the requested information."

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