FOIA Update: Significant New Decisions

January 1, 1993

FOIA Update
Vol. XIV, No. 1
1993


Significant New Decisions

FLRA v. DOD, 975 F.2d 1105 (5th Cir. 1992).

The Fifth Circuit Court of Appeals has joined the Third and Ninth Circuits in holding that the home addresses of federal bargaining unit employees must be disclosed to a union that requests the information under the Federal Service Labor-Management Relations Statute. The FSLMRS requires disclosure of information "necessary" in the collective bargaining process unless otherwise prohibited by law; such disclosure is prohibited by the Privacy Act unless required by the FOIA. In analyzing the request under the FOIA, the Fifth Circuit found that the Supreme Court's Reporters Committee decision, because it construed Exemption 7(C) rather than Exemption 6 and did not consider a request made under a statute other than the FOIA, was not controlling. It then determined that the public interest in collective bargaining embodied in the FSLMRS must be brought into the Exemption 6 balancing test when an FSLMRS request is made and that this enhanced public interest outweighs the privacy interests involved. The D.C., First, Second, Sixth, Seventh, Tenth and Eleventh Circuits have reached the opposite result. The Solicitor General filed a petition for certiorari in the Supreme Court on January 21.

Gallant v. NLRB, Civil No. 92-0873 (D.D.C. Nov. 6, 1992).

In a decision concerning an employee's correspondence, District Court Judge Norma Holloway Johnson has ruled that letters written by an NLRB Member seeking reappointment were not agency records because the agency neither created nor controlled them. Judge Johnson found that when writing the letters, the author "was not acting at the direction of the NLRB," but "was merely undertaking an individual effort to secure her own renomination," even though she wrote them on agency time and used its fax machine to send them. Judge Johnson concluded that input on the letters provided by the Board Chairman was "advisory" in nature, noting that "[n]ot everything that an agency Chairman does constitutes official agency action," and that other employees who "read" the letters did so exercising "purely mechanical" proof-reading functions. The requester has appealed.

Krikorian v. Department of State, No. 91-5028 (D.C. Cir. Jan. 29, 1993).

In a decision emphasizing the importance of ensuring that all nonexempt material has been segregated and released, the D.C. Circuit Court of Appeals has remanded ten documents concerning a State Department article about Armenian terrorism to the district court for just such a determination. Employing an unusual procedure, the D.C. Circuit first determined that the agency's Vaughn affidavits were sufficient to justify the application of Exemptions 1, 3, and 5 to the ten documents, but it then found that the same affidavits were insufficient to permit the "district court [to] adequately consider the segregability issue." Following its prior decision in Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992), the D.C. Circuit held that the agency's affidavits must not only identify the reasons why a particular exemption is relevant, but must "correlat[e] those claims with the particular part of a withheld document to which they apply." It concluded by ruling that the district court must "make specific findings of segregability regarding each of the withheld documents."

Providence Journal Co. v. United States Dep't of the Army, 981 F.2d 552 (1st Cir. 1992).

Grappling with the proper FOIA treatment of an Army Inspector General's report, the First Circuit Court of Appeals afforded broad protection for the IG's findings and confidential sources, while ruling that senior officials were entitled to only limited privacy protection. Observing that the "IG's findings of fact necessarily would reveal the opinion of the IG on the credibility and probity of the evidence relating to each allegation" of criminal wrongdoing against two senior Rhode Island National Guard officers, the First Circuit held that Exemption 5 protected all such findings. With respect to Exemption 7(D), it rejected as "onerous" and "fruitless" the requester's argument that confidentiality must be proven on an individual basis and concluded that the Army properly withheld statements by witnesses given express promises of confidentiality as well as anonymous letters by writers who had "implicit assurance[s] of confidentiality." However, in an unprecedented and aberrational analysis of an "unsubstantiated" allegation which was made by nonconfidential sources (and therefore not protected by Exemptions 5 or 7(D)), it held that a "heightened public interest" in wrongdoing by a senior government official outweighed his privacy interests, on the basis that it was only "minimally invasive of privacy, containing [a mere] blurred suggestion of possible impropriety." The First Circuit denied the Army's petition for rehearing.

Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429 (D.C. Cir. 1992).

In a factually complex case involving a computerized database of legal land descriptions that continues to evolve and improve as data derived from public documents are added to it, the D.C. Circuit Court of Appeals held that such a process is not a deliberative function and therefore is not protectible under Exemption 5. The D.C. Circuit took this opportunity to discuss alternative analyses under the deliberative process privilege for predecisional records involving "policy judgments" (which it in essence found to be categorically protectible), as opposed to those involving more "mundane" matters. As for the latter, it held that "[t]he release of materials that do not embody agency judgments--for example, materials relating to standard or routine computations or measurements over which the agency has no significant discretion--is unlikely to diminish officials' candor or otherwise injure the quality of agency decisions." The only circumstance where such nonpolicy matters are protectible, it declared, is where "the kind and scope of discretion involved [is] of such significance that disclosure genuinely could be thought likely to diminish the candor or agency deliberation in the future."

Maynard v. CIA, No. 92-1615 (1st Cir. Feb. 4, 1993).

Upholding the validity of a "coded" Vaughn declaration to justify the withholding of criminal law enforcement files in order to protect personal privacy and confidential sources, all of which the district court reviewed in camera, the First Circuit Court of Appeals appears to have thrown itself into conflict with the Ninth Circuit's decision in Wiener v. FBI, 943 F.2d 972 (9th Cir. 1991), cert. denied, 112 S. Ct. 3013 (1992). The requester, who was seeking records from several intelligence agencies concerning the disappearance of her husband during a flight over Cuba in 1961, had challenged the adequacy of the FBI's "coded" Vaughn declaration. The First Circuit flatly rejected her challenge, expressly holding that this Vaughn format -- by which the FBI "breaks down its FOIA exemptions into subcategories, explains the nondisclosure rationale for each subcategory, and then correlates the subcategories [by affixing a "code," such as "b7C-1"] to each document or portion withheld" -- provided "a reasoned justification for its withholdings." Observing that the FBI's declaration was "fully consistent with the Supreme Court's endorsement of 'workable rules,'" the First Circuit agreed with other circuits that "coded indices can, in some instances, accomplish the functions of Vaughn 'more efficiently and clearly than would the classical Vaughn indices.'"

PHE, Inc. v. Department of Justice, 983 F.2d 248 (D.C. Cir. 1993).

In a decision involving obscenity-investigation and prosecution manuals used by the FBI and the Criminal Division's National Obscenity Enforcement Unit, the D.C. Circuit Court of Appeals highlighted the importance of specific affidavits to establish "the correctness" of the agency's exemption claims--in this case, Exemption 7(E). Affirming the FBI's withholding of just one page of a 16-page manual section, the D.C. Circuit found that the FBI's affidavit specified that the withheld page "detailed specific documents, records and sources of information" to be used by investigators and showed how disclosure would give violators the "opportunity to impede lawful investigations by destroying or altering evidence." In sharp contrast, it rejected NOEU's withholding of "vast sections" of its manual, because its affidavit stated no rationale beyond that "[t]he next six chapters provide guidance for the prosecutor in handling the elements of obscenity offenses, suggest potential problems and solutions, and provide digests of applicable case and statute law."

Public Citizen v. Office of the United States Trade Rep., 804 F. Supp. 385 (D.D.C. 1992).

Interpreting FOIA subsection (a)(2) and Exemption 3, District Court Judge Gerhard A. Gesell ruled that the Office of the United States Trade Representative was required to make available for "inspection and copying" the submissions it makes to General Agreement on Tariffs and Trade (GATT) panels convened to resolve trade disputes between the United States and other GATT member countries. Rejecting the USTR's argument that separate requests under subsection (a)(3) were required for each new submission, Judge Gesell held that they were subject to subsection (a)(2)'s "affirmative disclosure" provisions because "[t]he submissions constitute the agency's interpretation of the United States' international legal obligations." He also rejected the USTR's argument that the panels' preliminary decisions must be withheld under the GATT's nondisclosure rules, holding that the GATT is not a treaty and thus does not have the status of a statute under Exemption 3.

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