FOIA Update: Significant New Decisions

January 1, 1992

FOIA Update
Vol. XIII, No. 1
1992


Significant New Decisions

Landano v. FBI, No. 91-5161 (3d Cir. Feb. 11, 1992).

In a decision addressing significant issues under both Exemptions 7(C) and 7(D), the Third Circuit Court of Appeals categorically protected the personal privacy of all individuals involved in a criminal investigation, but refused to find implied promises of confidentiality for individuals who provided information to the FBI during that same investigation. The requester, who was convicted of murder in state court, sought access to records of a related FBI investigation in an attempt to find any evidence of possible prosecutorial misconduct by the state. Rejecting this attempt, the Third Circuit interpreted the term "government operations" in the Supreme Court's Reporters Committee "public interest" standard to mean federal government operations, holding that "there is no FOIA-recognized public interest in discovering wrongdoing by a state agency." With respect to Exemption 7(D), however, the Third Circuit rejected the categorical approach embraced by other circuit courts that "promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation," instead ruling that "the existence of an implied assurance of confidentiality is a question of fact to be determined for each source." It is expected that the Government will seek en banc rehearing of the Exemption 7(D) issue.

Public Citizen v. Department of State, Civil No. 91-0746 (D.D.C. Jan. 14, 1992).

After taking in camera review of records concerning the U.S. Ambassador to Iraq's diplomatic communications immediately prior to Iraq's invasion of Kuwait, District Court Judge Charles R. Richey has ruled that the State Department's ability to protect most of those documents under Exemption 1 was not waived by the former ambassador's public testimony before Congress. Applying the principles of Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990), and Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir. 1983), regarding the legal effect of "officially acknowledged" or "public domain" information, Judge Richey held that "general discussions of [a topic] cannot be equated with disclosure of specifics," nor does "partial disclosure of information . . . require complete disclosure." He found that the particular "context" of the information contained in most of the documents was sufficiently "different" than the information in the "public domain" to justify their withholding under Exemption 1. As for two of the documents, however, Judge Richey found insufficient evidence of such "different context" to warrant nondisclosure on the existing record -- a finding that may lead to further proceedings.

New York Times Co. v. NASA, Civil No. 86-2860 (D.D.C. Dec. 12, 1991).

Putting an end to a longstanding Exemption 6 lawsuit over the audiotape of the space shuttle Challenger disaster, District Court Judge Norma H. Johnson has held that disclosure of the recording would be a "clearly unwarranted" invasion of the privacy interests of the astronauts' families. Judge Johnson explained that "[e]xposure to the voice of a beloved family member immediately prior to that family member's death is what would cause the Challenger families pain . . . a disruption of their peace of mind," such that "the very sound of the astronauts' words" implicates a "substantial" privacy interest. On the other side of the Exemption 6 balancing equation, she reasoned that even if background noises or voice inflections on the tape indicated that the astronauts knew they were going to die, that would "shed[] absolutely no light on the conduct of any Government agency or official." Especially given that a transcript of the tape has been released, Judge Johnson concluded, "the privacy interest in non-disclosure clearly outweighs the public interest."

Silets v. Department of Justice, 945 F.2d 227 (7th Cir. 1991) (en banc).

In a decision underscoring the authority of district courts to forego in camera inspection of withheld documents, the full Seventh Circuit Court of Appeals ruled that a district court judge did not abuse his discretion in upholding the Justice Department's application of Exemptions 2, 3, 7(C) and 7(D) to records relating to the electronic surveillance of Teamsters boss Jimmy Hoffa during the 1960s. Reemphasizing that in camera inspection should be reserved only for instances "when the exemption issue before the district court cannot otherwise be resolved," the Seventh Circuit rejected the requester's argument that in camera review was mandated because he made allegations of government misconduct. It pointedly observed that "[i]f we were to require only an assertion of bad faith as opposed to evidence of bad faith, we would send a signal flare to all future litigants to make certain to allege Government misconduct no matter how unsupported the allegation."

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