Vol. IV, No. 3
FOIA Counselor: Questions & Answers
Should the practice of referring requested documents to their agencies of origination (see FOIA Update, June 1982, at 5) be altered by the D.C. Circuit's McGehee decision?
No. The D.C. Circuit's decision in McGehee v. CIA, 697 F.2d 1095, 1105-12 (D.C. Cir.), vacated in part on panel rehearing, reh'g en banc denied, 3 GDS
May an agency continue to invoke Exemption 7(D) protection for the identity of, and information provided by, a confidential source who is now deceased?
Yes. The courts have uniformly upheld postmortem refusals to release both categories of information under Exemption 7(D). See Cohen v. Smith, No. 81-5365, mem. op. at 4 (9th Cir. Mar. 25, 1983) (identities of sources); Kiraly v. FBI, 3 GDS
Can an agency deny a FOIA request which requires an extremely burdensome search, and/or encompasses an enormous volume of records, on the ground that the records are not "reasonably described?"
No. The sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not "reasonably describe" records within the meaning of 5 U.S.C.
However, it is well established that "broad, sweeping requests lacking specificity are not permissible." Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). See, e.g., Irons v. Schuyler, 465 F.2d 608, 613 (D.C. Cir.) (request seeking "all unpublished manuscript decisions of the Patent Office" held "so broad in the context of the Patent Office files" as to be insufficient), cert. denied, 409 U.S. 1076 (1972); Fonda v. CIA, 434 F. Supp. 498, 501 (D.D.C. 1977) (request for all documents not mentioning plaintiff's name but which "concern her" held too broad). Further, the "reasonable" description requirement does fairly apply to locations to be searched, as well as to subject matter. See, e.g., Marks v. United States, supra, 578 F.2d at 263 ("it would be an unreasonable interpretation of the FOIA" to construe it to require an automatic search of all FBI field offices.); Shaw v. United States Department of State, 559 F. Supp. 1053, 1061 (D.D.C. 1983) ("A reasonable description of the desired materials must include the location of the search.").
How should an agency respond to a FOIA request for records which are subject to a court order prohibiting disclosure?
Such a request should be denied. An agency has no discretion to release any record covered by an injunction, protective order, or court seal prohibiting disclosure, nor is it under any obligation under the FOIA to do so. See GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386-87 (1980) (records subject to nondisclosure order not "improperly withheld" under FOIA); Legal Times of Washington, Inc. v. FDIC, 1 GDS
What action can be taken against an agency employee who denies a FOIA request improperly?
Beyond individual agency personnel procedures, there is a seldom-used provision contained in subsection (a)(4)(F) of the FOIA which mandates an investigation by the Special Counsel of the Merit Systems Protection Board in cases of suspected "arbitrary or capricious" withholding under the FOIA. Such proceedings by the MSPB Special Counsel are initiated automatically after a court (a) orders the production of agency records improperly withheld, (b) assesses attorney's fees and litigation costs, and (c) makes "an additional written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously with respect to the withholding." 5 U.S.C.
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