FOIA Update: Significant New Decisions

Schiller v. NLRB, 964 F.2d 1205 (D.C. Cir. 1992).

Interpreting both aspects of Exemption 2, the D.C. Circuit Court of Appeals upheld the NLRB's denial of Equal Access to Justice Act (EAJA) records which provided guidance to its attorneys on constructing appropriate defenses and litigating such cases. The D.C. Circuit held that the NLRB's "guidelines on implementing the [EAJA]" qualify under the "high 2" aspect of Exemption 2, because their disclosure would risk circumvention of statutes and agency regulations by rendering them "operationally useless," and thus compromise the NLRB's "ability to defend itself in EAJA actions." It also held that the exemption's "low 2" aspect protects "internal time deadlines and procedures, recordkeeping directions, instructions on which agency officials to contact for assistance, and guidelines on when clearance from Washington is necessary," because all of these items are nothing more than "trivial administrative matters of no genuine public interest."

Aronson v. IRS, 973 F.2d 962 (1st Cir. 1992).

Construing Exemption 3(B) -- which gives effect to nondisclosure statutes allowing agencies discretion to withhold certain records -- the First Circuit Court of Appeals found that review under the FOIA of an agency's action is limited to determining whether the statute at issue qualifies as an Exemption 3 statute and whether the records fall within its scope. The requester, "a private tracer of lost taxpayers," sought under the FOIA the last known addresses of persons to whom the government owed tax refunds. Although taxpayer identity in formation is exempt from disclosure under Exemption 3 of the FOIA, 26 U.S.C. § 6103(m) provides that the IRS "may disclose taxpayer identity information . . . for purposes of notifying persons entitled to tax refunds." Upholding the IRS's refusal to disclose the records, the First Circuit ruled that the IRS's exercise of its discretion under the withholding statute is governed not by the FOIA, but by the withholding statute itself and that "ordinary, deferential principles of administrative law, not the FOIA's special, de novo principles, govern [any judicial] review of the IRS's interpretation" of the tax statute.

Hunt v. FBI, 972 F.2d 286 (9th Cir. 1992).

Reaffirming the strong privacy interests of law enforcement employees, the Ninth Circuit Court of Appeals has reversed a district court ruling that would have required the FBI to release documents concerning an internal investigation of an FBI special agent who had been cleared of allegations made by the requester that accused her of sexual and professional misconduct. The district court had ruled that releasing the records with the agent's name redacted would adequately protect her privacy. Ruling that the records were entirely withholdable under Exemption 7(C), however, the Ninth Circuit explained that merely redacting the agent's name would be a "pointless exercise," due to "the public availability of Hunt's FOIA request naming the agent." Holding that "association of the agent's name with allegations of sexual and professional misconduct could cause the agent great personal and professional embarrassment" where there was "no evidence of wrongdoing on the part of the tageted agent or the FBI investigators," it concluded that disclosure of an isolated investigation of a "single lower-level FBI agent" with "no supervisory authority" or "special responsibilities normally reserved for senior officials" would serve "little or no public interest."

Davis v. United States Dep't of Justice, 968 F.2d 1276 (D.C. Cir.1992).

Strongly reinforcing the principle that the burden is on the party alleging prior disclosure to demonstrate that the information sought is in the public domain, the D.C. Circuit Court of Appeals has held that where neither the requester nor the agency knows precisely which portions of wiretap tapes were played at trial, the requester must prove their actual disclosure to establish waiver. In so ruling, the D.C. Circuit rejected the requester's argument that because he had submitted more than 100 news articles about the trial of New Orleans organized crime boss Carlos Marcello -- some of which quoted verbatim from the recordings -- the agency was precluded from invoking Exemptions 3 (for the Title III wiretaps), 7(C) and 7(D) to protect any of the 43 tapes at issue. Remarkably, no one involved in the original criminal trial -- including the FBI, the prosecutor or the court reporter -- could definitively state which tapes or portions had been played for the jury. In its ruling, the D.C. Circuit expressly approved the government's offer to disclose to the requester only those excerpts from the wiretap tapes quoted in publicly available materials, provided that he showed "that a specifically described portion of an identified conversation on a particular date between named individuals was played publicly at the . . . trial."

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