FOIA Update: Significant New Decisions

January 1, 1998

FOIA Update
Vol. XIX, No. 2
1998


Significant New Decisions

Chicago Tribune Co. v. FAA, No. 97 C 2363, 1998 WL 242611 (N.D. Ill. May 7, 1998).

In a case involving the seldom-litigated issue of whether records submitted by a commercial entity satisfy Exemption 4's threshold that information be "commercial," United States District Court Judge Wayne R. Andersen has found that "[n]ot every type of information provided to the government by an entity engaged in commerce" satisfies this requirement. The requested information related to in-flight medical emergencies that was provided to the FAA by the airlines and included data on emergency medical kit usage and medical emergency flight diversions. The FAA had redacted information that identified specific carriers under the rationale that the documents were commercial because they concerned "events that occurred while aircraft were in revenue-producing operations." Judge Andersen held that such an argument swept too broadly inasmuch as medical emergencies "do not naturally flow from commercial flight operations, but rather are chance events which happened to occur while the airplanes were in flight."

Solar Sources, Inc. v. United States, No. 97-2386, 1998 WL 205227 (7th Cir. Apr. 28, 1998).

In a case involving a massive number of documents, the Court of Appeals for the Seventh Circuit has upheld the government's invocation of Exemption 7(A) for an entire case file even though it recognized that a small portion of the documents could be released without causing harm to the investigation. The government's file concerned a "wide-ranging price fixing conspiracy" among commercial explosives and ammonium nitrate industries and was sought by a company pursuing civil antitrust claims against those industries. While preparing a sample of 3000 pages for the district court's in camera review -- out of a total file consisting of 1763 linear feet of paper documents and over seventy million bytes of computerized information -- the agency released 26 pages, "less than one percent of the documents reviewed in camera," which it determined would not interfere with the investigation. Recognizing that "it would require eight work-years to identify all of the [other] non-exempt documents" the Court held that those few additional records "are not reasonably segregable from those documents that were properly withheld." On the principal substantive issue involved, the requester argued that disclosure of the records used to obtain guilty pleas from the four corporations and one individual who were the subjects of the FOIA request could not possibly "sabotage" those cases inasmuch as the government had "already prevailed." Recognizing that narrow assertion as "correct," the Seventh Circuit nevertheless found that although "the Government ha[d] closed its cases against the specific individuals named in the FOIA request," the information was also "part of" the agency's ongoing enforcement proceedings against other potential defendants. It concluded that the "fact that the Government has closed a particular investigation does not make it any less likely that disclosure in this case 'could reasonably be expected to interfere with'" the remaining pending proceedings.

Shell Oil Co. v. United States Dep't of Labor, No. H-96-3113 (S.D. Tex. Mar. 31, 1998).

Readily assuming that Critical Mass applies in the Fifth Circuit, United States District Judge Vanessa D. Gilmore ruled in a "reverse" FOIA suit that information voluntarily provided by Shell Oil Company after an explosion at Shell's chemical plant in Belpre, Ohio, is entitled to Exemption 4 protection. Within hours of the explosion, and without demanding the issuance of subpoenas or warrants, Shell provided agency inspectors full access to its proprietary information and allowed its employees to be interviewed and its facilities to be photographed. The information collected was then incorporated into an agency report, which was subsequently requested by a newspaper as well as several of Shell's competitors. In ruling that the agency's disclosure decision should be reversed and the report withheld, Judge Gilmore noted that Shell had readily "cooperated with agency officials, waived the protection of compulsory process," and provided government inspectors with documents and information so that the agency's "investigation was neither delayed nor impeded in any manner." Consequently, Judge Gilmore held that the "less onerous standard" of Critical Mass appropriately protected the information. Without that standard's broad protection, she added, the government's access to such information "would, in all probability, be dramatically reduced."

McDonnell Douglas Corp. v. NASA, No. 96-2611 (D.D.C. May 1, 1998).

In a "reverse" FOIA decision that validated NASA's extensive predisclosure notification process, United States District Court Judge Royce C. Lamberth denied McDonnell Douglas's motion for reconsideration of his prior disclosure order. McDonnell Douglas attacked NASA's administrative process, contending that it was denied an opportunity to "contest the credibility" of NASA's experts and to "address NASA's adverse evidence." Judge Lamberth found to the contrary, ruling that the question was not "the relative prestige of the experts on each party's side," but rather whether NASA's "administrative decision could be properly characterized as reasoned decision-making [which is done] by examining the basis for [NASA's] decision." He concluded that "[m]erely because [McDonnell Douglas] failed to convince NASA or this court that release of this information was inappropriate does not erase the fact that [it] was given multiple opportunities to submit arguments."

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