FOIA Update: Significant New Decisions

January 1, 1999

FOIA Update
Vol. XX, No. 1


Significant New Decisions

Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999).

Elaborating on the circumstances necessary under Exemption 7(D) to infer that sources who furnished information received an implied assurance of confidentiality, the Court of Appeals for the Second Circuit held that individuals who provided HUD investigators with documents and information about a company whose employees were found to have harassed homeless persons expected that their identities would remain confidential. The requester's "outreach workers" had been charged with "violence and intimidation" against homeless persons when they "evicted" them from Grand Central Station. The Second Circuit began by emphasizing that implied confidentiality can exist in civil law enforcement situations where the danger of retaliation involves "work place harassment, demotions, job transfers or loss of employment," rather than physical violence. It then focused on the seriousness of the offenses being investigated, the close relationship between the sources and those who allegedly were involved in perpetrating the crimes, and the "objectively real and substantial risk of retaliation, reprisal or harassment" the sources would face if their identities were disclosed, and ruled that the agency had met its evidentiary burden under United States Dep't of Justice v. Landano, 508 U.S. 165 (1993).

Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022 (D.C. Cir. 1999).

In a decision involving descriptive shipping codes called Harmonized Tariff Numbers ("HTS numbers"), the Court of Appeals for the District of Columbia Circuit held that a district court itself has an affirmative duty to consider the issue of reasonable segregation. The requester, an association of registered ocean common carriers charged by statute with policing exporters who send shipments into the United States, sought the ten-digit HTS numbers to facilitate its investigations of exporters' shipments. On appeal, the D.C. Circuit found that disclosure of all ten digits of the HTS numbers would cause competitive harm to the exporters under Exemption 4 because they would reveal "the nature, cost, profit margin, and origin of the shipments," but ruled that the district court had an affirmative obligation to consider segregability of the HTS numbers, even though the requester never sought a segregability finding administratively or in the district court. The D.C. Circuit then remanded the case to the district court to determine if "only four or six digits" could be disclosed without causing competitive harm.

O'Kane v. United States Customs Serv., 169 F.3d 1308 (11th Cir. 1999).

In a per curiam decision involving the privacy interests of individuals whose possessions have been seized for violating United States customs laws, the Court of Appeals for the Eleventh Circuit ruled that the home addresses of these individuals are protected under Exemption 7(C). The requester, a lawyer who wanted the addresses "so that he [could] solicit those individuals for his law practice," argued that because "other federal agencies routinely publish names and addresses of individuals the government accuses of crimes," the Customs Service must disclose the addresses of its violators. Observing that "[o]ther agencies' day-to-day practices . . . are irrelevant to a FOIA privacy exemption analysis," the court ruled that the "important privacy interest [individuals have] in their home address" outweighs the public interest urged by the requester "in promoting legal representation for violators of customs laws." The requester then rather creatively argued that because one of the legislative objectives of the Electronic Freedom of Information Act Amendments of 1996 provided that requesters may seek information from the government for any purpose, his purpose was "irrelevant." Implicitly declining to find that this terse legislative statement was intended to overturn the Supreme Court's decisions in United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989), DOD v. FLRA, 510 U.S. 487 (1994), and Bibles v. Oregon Natural Desert Ass'n, 519 U.S. 355 (1997), the Eleventh Circuit ruled that "the Amendments merely clarified that electronic records are subject to FOIA; they did not narrow FOIA's privacy [exemptions] or invalidate the private-public interest balancing test."

Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999).

In an anomalous decision, the Court of Appeals for the District of Columbia Circuit has remanded a case to the district court for a determination of whether names of individual depositors with unclaimed funds at banks for which FDIC is now the receiver should continue to be withheld from an "independent money finder" pursuant to Exemption 6 of the FOIA. The D.C. Circuit began its analysis by finding that there is no public interest in the release of these names. In an unusual twist, however, it (inexplicably ignoring the Supreme Court's FLRA and Bibles decisions) went on to determine that the depositors' pecuniary interest in recovering their money must be weighed against their privacy interest in their names and addresses. Recognizing that the formula applicable to Exemption 6 generally requires a simple balance of privacy interest against public interest, the court of appeals nevertheless concluded that "this formulation is inapposite here, i.e., where the individuals whom the government seeks to protect have a clear interest in the release of the requested information." It ordered that any names released be disclosed separately from the amounts owed, to reduce the chance of a privacy invasion, and instructed the district court to "determine the dollar amount below which an individual's privacy interest should be deemed to outweigh his or her interest in discovering his or her money."

McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999), reh'g en banc denied, No. 98-5251 (D.C. Cir. Oct. 6, 1999).

In a terse, reverse FOIA decision rejecting a longstanding federal agency disclosure practice, the Court of Appeals for the District of Columbia Circuit has held NASA's proposed release of contract line item prices for satellite launch vehicle services to be both "arbitrary and capricious" and "not in accordance with law." Eschewing an opportunity to clarify whether contract unit prices qualify as "voluntary submissions" under the D.C. Circuit's more protective Critical Mass test, the Court of Appeals instead held that these prices were "required submissions" under National Parks and then surprisingly ruled that disclosure would cause "substantial competitive harm." Perfunctorily characterizing NASA's reasons for disclosure as "silly," "convoluted," and "astonishing," the D.C. Circuit found McDonnell Douglas' position that it would suffer substantial competitive harm from disclosure because its nongovernment customers "could bargain down ('ratchet down') its prices more effectively" and that it "would help its domestic and international competitors to underbid it" to be "indisputable." The D.C. Circuit's complete failure to mention, let alone attempt to distinguish, appellate decisions in the Fourth and Ninth Circuit Courts of Appeals upholding agency determinations to disclose unit prices, as well as two of its own decisions limiting the "substantial competitive harm" test to damage caused by the use of the information by competitors, casts a veil of confusion over this area of the law. The Solicitor General is considering filing a petition for Supreme Court review.

Klamath Water Users Protective Ass'n v. United States Dep't of the Interior, 189 F.3d 1034 (9th Cir. 1999).

In a 2-1 decision that threatens to undermine the government's ability to consult confidentially with Indian Tribes about the disposition of Tribal resources, the Court of Appeals for the Ninth Circuit held that records concerning water rights that the Bureau of Indian Affairs received from and provided to members of the Klamath Basin Tribes did not meet the "inter-agency or intra-agency" threshold of Exemption 5. Rejecting the government's argument that its fiduciary relationship with the tribes rendered the communications "consultative" within the meaning of Formaldehyde Inst. v. HHS, 889 F.2d 1118 (D.C. Cir. 1989), the court of appeals found that the tribes had advised the BIA about matters "in which [they] had their own interest and the communications presumptively served that interest." It ruled that to allow the government to withhold such records "would extend Exemption 5 to shield what amount to ex parte communications in contested proceedings between the Tribes and the Department." In dissent, Circuit Court Judge Michael Daly Hawkins emphasized the majority's failure to recognize that "existing case law . . . looks not at conflict between competing claimants before an agency, but at the existence of conflict between outside entities and an agency in trying to determine [the] role" played by a document in the agency's decisionmaking process. The government has petitioned the Ninth Circuit for rehearing en banc.

Accuracy in Media, Inc. v. National Park Serv., 194 F.3d 120 (D.C. Cir. 1999).

Reiterating its rejection of the proposition that the "FOIA's protection of personal privacy ends upon the death of the individual depicted," the Court of Appeals for the District of Columbia Circuit has ruled that Exemption 7(C) protects autopsy and death scene photographs arising out of the investigation of the suicide of Deputy White House Counsel Vincent Foster. Soundly rejecting the requester's argument that "because only Foster's privacy was at stake, his death terminated any valid privacy interest," the court of appeals observed that "[w]hile law enforcement sometimes necessitates the display of such ghoulish materials, there seems nothing unnatural in saying that the interest asserted against it by spouse, parents and children of the deceased is one of privacy." Leaving one issue for another day, it concluded its analysis of this point by declaring that "[w]e need not here explore whether the interest belongs to living close survivors (in which case it might end at their deaths), or alternatively may inhere posthumously in the subject himself (in which case it would seem to be of indefinite duration), or both."

Valencia-Lucena v. United States Coast Guard, 180 F.3d 321 (D.C. Cir. 1999).

Addressing the extent to which an agency must search for requested records that are known to have existed, the Court of Appeals for the D.C. Circuit found inadequate the efforts undertaken by the Coast Guard to search for a ship's logbook which was sought by an aircraft pilot who had been convicted in a drug conspiracy in connection with drugs recovered at sea. Noting that an agency must search all places that it has reason to know "may contain responsive documents," the D.C. Circuit held that the Coast Guard should have searched a federal records center where it believed the logbook may have been stored. In so ruling, it observed that records "stored at a federal records center are deemed to be maintained by the agency which deposited the record." Next, it found that the Coast Guard failed to explain why the ship's captain, who referred to the logbook at the requester's criminal trial, was not contacted concerning its whereabouts, explaining that "agency personnel should be contacted if there is a close nexus between the person and the particular record." Finally, the court rejected the agency's argument that one of its manuals provided for the routine destruction of ship's logs, noting that the manual contained exceptions to the destruction schedule that were not addressed.

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