FOIA Update: Significant New Decisions

January 1, 1995

FOIA Update
Vol. XVI, No. 2
1995


Significant New Decisions

McDonnell Douglas Corp. v. NASA, No. 94-2452, 1995 WL 461770 (D.D.C. June 30, 1995).

Building on its earlier decision in Chemical Waste Management, Inc. v. O'Leary, No. 94-2230, 1995 WL 115894 (D.D.C. Feb. 28, 1995), the District Court for the District of Columbia has issued yet another decision holding that "pricing information" in a government contract is a "required" submission that must be analyzed under the National Parks competitive harm test. The ruling arose in one of several "reverse" FOIA suits brought by McDonnell Douglas concerning its contract to provide Delta II rockets and related launch services. Judge Royce C. Lamberth rejected as "temptingly simple" McDonnell Douglas' Critical Mass argument "that resolution of the voluntariness issue requires nothing more than reference to the 'ancient concepts of freedom of contract.'" Under that theory, because McDonnell Douglas "did not have to enter into a contract, no information within the contract [could] be considered mandatory." Flatly rejecting this notion, Judge Lamberth declared that such an approach "would result in classifying all government contractors as per se volunteers whose pricing information could easily be withheld from the public domain." He concluded by finding that the submitter would suffer no competitive harm from release of the information at issue--prices associated with termination schedule percentages and secondary payloads -- because McDonnell Douglas had "failed to show with any particularity" how such harm could occur.

Cotton v. Heyman, No. 94-5014, 1995 WL 405265 (D.C. Cir. July 11, 1995).

In a precedent-setting decision, the Court of Appeals for the D.C. Circuit reversed a lower court's determination that its own "precedential" ruling would "greatly increase the amount of information available to the public" to such an extent as to entitle the requester to attorney fees. Reviewing the test for determining entitlement to fees, the D.C. Circuit expressly rejected the district court's conclusion that the public interest factor was satisfied solely by establishing the precedent that the Smithsonian Institution was subject to the FOIA, finding it to be "an inherently speculative observation . . . inconsistent with the structure of FOIA itself." Evaluation of the public interest, the D.C. Circuit ruled, must be limited to consideration of "the specific documents at issue in the case," consisting of two nonexempt records sought "for the sole purpose of facilitating [the requester's] employment discrimination suit," which the requester did not even argue would serve the public interest. Although declining to rule squarely on the "agency" status of the Smithsonian, the D.C. Circuit did hold that the reasonableness of the Smithsonian's position likewise militated against a fee award, noting the absence of any "bright line rules" governing the applicability of FOIA to those federal entities not subject to the Administrative Procedure Act. Emphasizing the "fact-specific" nature of its prior decisions, it concluded that "[i]nevitably, such a fact intensive test lacks a strong predictive element" and, therefore, that the Smithsonian's position had necessarily been reasonable.

Ruotolo v. Department of Justice, 53 F.3d 4 (2d Cir. 1995).

Emphasizing that the onus is on the agency to demonstrate that a search would be unduly burdensome, and noting that such an obligation is met only in cases involving truly massive volumes of records, the Court of Appeals for the Second Circuit reversed a district court's ruling that the Justice Department's Tax Division did not need to search for records that were not retrievable by means of its indices. To assist them in a pending FOIA lawsuit, the requesters sought all Vaughn Indexes filed by the Division after 1978 and agreed to incur costs up to $600. The Tax Division responded that "a request for files of 803 cases would overwhelm the Division's file unit for a not inconsiderable period of time" because they would have to be ordered from the Federal Records Center and would have to be searched manually for the Vaughn Indexes. The Second Circuit, however, declared that it would have been a "simple matter" for the agency to compile the most current responsive files and work backward to 1978 until the funds supplied were exhausted, and then to provide a cost estimate for completing the search. It concluded that there was strong evidence that the search was not "especially burdensome" in light of the "limited number of files" and the payment tendered.

Baizer v. United States Dep't of the Air Force, 887 F. Supp. 225 (N.D. Cal. 1995).

In a decision dwelling on the purposes of the FOIA, United States District Court Judge Fern M. Smith ruled that a computer database consisting exclusively of agency-compiled Supreme Court decisions was not an "agency record." The requester, an Oakland attorney, sought access to these cases in electronic form. Following SDC Dev. Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976), Judge Smith held that the critical issue was "how the agency used the requested material," as this would bear directly on whether "the agency controls the material." Finding that the database was "maintained for reference purposes only, and the Supreme Court decisions it contain[ed were] readily available both in public libraries and from other computerized reference services," she held that it would not shed light on the "structure, operation, and decision-making" of the agency. Judge Smith "bolstered" her ruling by noting that the Federal Records Disposal Act expressly defines "records" to exclude "[l]ibrary and museum material made or acquired and preserved solely for reference or exhibition purposes."

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