FOIA Update: Significant New Decisions

January 1, 1991

FOIA Update
Vol. XII, No. 2
1991


Significant New Decisions

Critical Mass Energy Project v. NRC, 931 F.2d 939 (D.C. Cir. 1991).

Once again, the D.C. Circuit Court of Appeals has reversed the district court that has twice afforded Exemption 4 protection to nuclear facility safety reports submitted by a trade organization to the NRC. Following the first remand, the NRC was granted summary judgment on the ground that disclosure would damage its efficiency and effectiveness by creating "antagonism" between the agency and the submitter. The D.C. Circuit reversed, however, holding that the mere "possibility that disclosure might spawn litigation" was insufficient, because that would allow the submitter to "dictate" the confidential status of documents, a proposition flatly at odds with National Parks' "objective" test. In a surprising concurrence, two of the three circuit judges on the panel declared that if this were a case of first impression, they "would apply the common meaning of 'confidential'" to protect the reports and would go so far as to "reject" the National Parks test altogether. They contended that the D.C. Circuit had "no legitimate basis" for adding to Exemption 4 "some two-pronged 'objective' test" that was not required by the unambiguous language of the statute. A petition for en banc rehearing is pending.

Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991).

In the first post-Reporters Committee appellate decision on the issue, the Second Circuit Court of Appeals has unequivocally held that Exemption 6 protects employee names, addresses and social security numbers on the certified payroll records federal contractors submit to enable agencies to determine compliance with the prevailing wage provisions of the Davis-Bacon Act. After determining that the employees had a "significant privacy interest in avoiding disclosure," the Second Circuit flatly held that "whatever public interest there may be in knowing whether private parties are violating the law [, it] has no weight in an Exemption 6 balancing." While conceding that "monitoring" HUD's enforcement of the Davis-Bacon Act might fall "within the ambit of 'public interests' recognized in Reporters Committee," it found that disclosure of employee names and addresses "would serve the public interest only insofar as it would allow the Union to contact individual employees" -- thereby providing, atmost, a preliminary step in assessing the effectiveness of HUD's enforcement efforts. Observing that "the likelihood that the Union would use the requested identifying information to contact employees at their homes dramatically increases the already significant threat to the employees' privacy interests," the Second Circuit held that the balance tipped decisively in favor of nondisclosure.

Bowers v. Department of Justice, 930 F.2d 350 (4th Cir. 1991).

In a decision rejecting a broad disclosure order involving FBI counterintelligence files, the Fourth Circuit Court of Appeals chastised the district court for failing to address the exemptions claimed by the FBI or to even acknowledge its detailed justifications contained in 480 pages of in camera and public declarations. It found that the district court appeared to have examined the material "through the eyes of a layman and without consideration" of the substantial evidence provided by the government's experts. The Fourth Circuit concluded that the district court was "under a misapprehension" that under Exemption 1 it had to find as a "legal prerequisite for withholding" that the subject of the request had to be in a "position of trust or confidence" or somehow "connected with national security." Ruling that the FBI's submissions were "substantially more than is required," it reversed the district court's disclosure order as "clearly erroneous."

Reed v. NLRB, 927 F.2d 1249 (D.C. Cir. 1991).

In a decision applying four principles enunciated by the Supreme Court in Reporters Committee, the D.C. Circuit Court of Appeals has held that "Excelsior" lists -- lists of the names and addresses of employees eligible to vote in union representation elections -- are "categorically" protected by Exemption 6. First, it found that even though the lists "may have been at one time public," as a result of being made available to organizing unions without restriction, that does not diminish the privacy interests in them. Second, it determined that there is no public interest in a list that, in itself, "would reveal nothing about the [NLRB's] conduct of representation proceedings or its performance of any other statutory duty." Because a FOIA requester's purpose is of no relevance, it also found it immaterial that the requester intended to use the lists to correct alleged misrepresentations made to employees by the Board. Finally, the D.C. Circuit concluded that "Excelsior" lists fit "into a genus in which the balance characteristically tips in one direction," and that they are exempt "categorically."

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