FOIA Update: Significant New Decisions

January 1, 1990

FOIA Update
Vol. XI, No. 3
1990

Significant New Decisions

KTVY-TV v. United States Postal Serv., No. 89-6193 (10th Cir. Nov. 27, 1990).

In an instructive post-Reporters Committee decision focusing on the "public interest" side of the Exemption 7(C) balancing process, the Tenth Circuit Court of Appeals held that the identities of witnesses to the 1986 murder of 14 postal employees in Edmond, Oklahoma by a fellow worker who then committed suicide "do not provide information about the conduct of the government." Television station KTVY-TV had sought the Postal Service's investigative file concerning the killings and had argued that disclosure of the names of the witnesses would inform the public on "how the shootings occurred and whether they could have been avoided." Upon close analysis, however, the Tenth Circuit found no nexus at all between those identities and KTVY-TV's "unsupported statement of possible neglect" by the Postal Service -- because there was "no proof disclosure of any of the interview information would establish that [the agency] could have prevented the incident." It therefore ruled that the identities were properly withheld to protect such persons from "the reasonable likelihood of harassment and embarrassment."

Concrete Construction Co. v. Department of Labor, Civil No. C-2-89-649 (S.D. Ohio Oct. 26, 1990).

In a decision involving the application of Exemption 7(A) to two categories of Occupational Safety and Health Administration records, the United States District Court for the Southern District of Ohio held that disclosure of a list of "construction worksites" to be inspected in the immediate future is protectible because its disclosure "would dramatically thwart [OSHA's] attempts at revealing violations." The second (and certainly more difficult) category of records set out the agency's inspection projections and substantive "areas of concentration" for the prior two years, which the requester argued would not "tell an employer anything about 1990." However, the court recognized that disclosure of OSHA's recent "allocation of [its] limited resources and the prioritization of [its] efforts" would reveal its "enforcement trends," thereby permitting employers "to ascertain the likelihood of being inspected, and from that they would be able to conceal violations, thus avoiding prosecution." Concluding that facilitating such "cost/benefit" analyses "is obviously a detriment to the enforcement objectives" of OSHA, the Court held that these past, but still recent, details of OSHA's law enforcement practices are properly protectible under Exemption 7(A).

Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990).

The D.C. Circuit Court of Appeals has ruled that the Defense Nuclear Facilities Safety Board -- which monitors the manufacture of atomic weapons and research into the military application of atomic energy -- is an "agency" subject to the provisions of the FOIA and the Sunshine Act. In reaching this conclusion, the D.C. Circuit examined both the language of the statute that created the Board in 1988, as well as the nature of the Board's functions. It noted that the Board's statutory charter created it as an "establishment in the executive branch," the precise language used in the FOIA's definition of an "agency." Furthermore, it observed that the Board's functions -- beyond making recommendations to the Secretary of Energy -- include conducting investigations, evaluating the Energy Department's standards relating to defense nuclear facilities and imposing reporting requirements on the Secretary. Thus, the D.C. Circuit concluded that even if the Board's status were evaluated under precedents holding that entities within the Executive Office of the President whose "sole function" is to provide advice to the President are not "agencies," the Board's additional functions are such that the FOIA and Sunshine Act would apply to it.

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