FOIA Update: Significant New Decisions

January 1, 1990

FOIA Update
Vol. XI, No. 2
1990


Significant New Decisions

American Federation of Government Employees v. Department of Commerce, 907 F.2d 203 (D.C. Cir. 1990).

In a procedural decision strongly reinforcing the principle that FOIA requests must "reasonably describe" the records sought, the D.C. Circuit Court of Appeals has held that the Census Bureau "need not honor a request" which would have required a search to be conducted in every chronological office file, correspondence file and promotion file of each of the 356 offices of the agency. Relying upon its relatively early FOIA decision in Goland v. CIA, 607 F.2d 339, 353 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980), the D.C. Circuit ruled that the union's agencywide request for all records which were used to initiate personnel promotions was "so broad as to impose an unreasonable burden upon the agency," particularly as to the sweeping breadth of the record search involved. It also declared that the "unreasonableness of the attendant burden is only more obvious when one realizes it is largely unnecessary to [the requester's stated] purpose."

Pacific Architects & Eng'rs v. Department of State, 906 F.2d 1345 (9th Cir. 1990).

In only the second appellate decision to rule on the merits of an agency's determination to release "unit prices" over the objections of a submitter, the Ninth Circuit Court of Appeals ruled that disclosure would not cause the submitter to suffer substantial competitive harm. In this "reverse" FOIA suit, Pacific Architects contended that disclosure of its contractual "unit price rates" -- or hourly charges -- for maintenance, repair and custodial services at the U.S. Embassy in Moscow would "enable a competitor to determine [its] profit margin." Employing an analysis similar to that used by the Fourth Circuit Court of Appeals in Acumenics Research & Technology v. Department of Justice, 843 F.2d 800, 807-08 (4th Cir. 1988), however, the Ninth Circuit approved the agency's conclusion that because the "'unit price rates' are made up of a number of fluctuating variables," no competitor could calculate the profit margin and, therefore, no competitive harm would result from disclosure.

Schmerler v. FBI, 900 F.2d 333 (D.C. Cir. 1990).

Decisively holding that law enforcement agencies are entitled to a presumption that interviews with sources are conducted with implicit assurances of confidentiality, the D.C. Circuit Court of Appeals reversed a District Court order that would have required the FBI to disclose the identities of individuals who provided confidential information to it nearly sixty years ago during the course of a notorious murder investigation. Rejecting the conclusion that Exemption 7(D) could not apply in a case in which fairly innocuous information relating to the character of the murder victim was provided by now-deceased individuals, Circuit Court Judge David Bryan Sentelle declared for the Court that the sole test for application of Exemption 7(D) is whether the sources who provided information were confidential -- and that the exemption permits no balancing of interests whatsoever. Following Keys v. Department of Justice, 830 F.2d 337, 345 (D.C. Cir. 1987), Judge Sentelle held that although there was little direct evidence on whether confidentiality was implicitly promised, "the FBI benefits from a presumption that an assurance of confidentiality was given . . . absent evidence to the contrary," and that even a promise to testify at trial if called (as in this case) is insufficient by itself to rebut this strong presumption. In ruling that the passage of nearly sixty years had no effect on the applicability of Exemption 7(D), he pointedly observed that the exemption "contains no sunset provision on the promise of confidentiality."

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990).

In a wide-ranging opinion interpreting the Supreme Court's decision in CIA v. Sims, 471 U.S. 159 (1985), the D.C. Circuit Court of Appeals has held that 50 U.S.C. § 403(d)(3) encompasses even "domestic" sources when they contribute to the CIA's conduct of foreign intelligence -- thereby enabling the CIA to withhold such source information under Exemption 3. Historian Alan Fitzgibbon sought all records held by the CIA concerning the apparent kidnapping of Professor Jesus de Galindez in New York City in 1956 by supporters of the Trujillo regime in the Dominican Republic. The District Court had ordered disclosure of the CIA's contacts with the New York City Police Department, ruling that "domestic intelligence sources" could not qualify as an "intelligence source" under the statute. The D.C. Circuit reversed, however, holding that the District Court erred in its "focus on the foreign intelligence service rather than the foreign intelligence function" involved and that "the protection of section 403(d)(3) and exemption 3 extends to all intelligence sources, domestic . . . as well as foreign."

Dow Jones & Co. v. Department of Justice, 908 F.2d 1006 (D.C. Cir. 1990).

In a decision of first impression at the appellate level, the D.C. Circuit Court of Appeals has limited the reach of Exemption 5 by ruling that the deliberative process privilege does not protect a letter sent by the Department of Justice to Congress to assist the House Ethics Committee in its investigation of Congressman Fernand J. St Germain. The Department's letter advised the committee of information the FBI had gathered from informants prior to the Department's decision not to prosecute Representative St Germain. The D.C. Circuit held, however, that because Congress is not an "agency" under the FOIA, agency communications to Congress in aid of its deliberations cannot satisfy Exemption 5's "inter- or intra-agency" threshold requirement. The D.C. Circuit did, however, uphold protection of the highly sensitive portions of the letter under Exemption 7(D), recognizing that the strong presumption of confidentiality in FBI interviews "in practical terms comes close to an irrebuttable one," such that "only the starkest and most conclusive evidence of non-confidentiality will rebut the presumption." In so holding, it specifically declared that it was "following the direction the Supreme Court" provided in its discussion of "categorical" FOIA determinations in Reporters Committee.

Schoettle v. Kemp, 733 F. Supp. 1395 (D. Haw. 1990).

In the first post-Reporters Committee decision to deal with the issue, the District Court for the District of Hawaii has upheld HUD's application of Exemption 6 to name-and-address lists of persons entitled to vested distributive shares and mortgage insurance premium refunds, but who had not been located after a year's efforts. The requester had relied on the pre-Reporters Committee case of Aronson v. HUD, 822 F.2d 182, 185 (1st Cir. 1987), which had held that there was a public interest in refunding these monies to the entitled mortgagors and that after a year -- when HUD had ceased actively searching for potential recipients -- this "public interest" outweighed any privacy interest. In sustaining HUD's position, however, the District Court flatly rejected the Aronson approach in light of the Supreme Court's teaching in Reporters Committee. It found that the only "public interest" that can be brought into the Exemption 6 balance is an interest in information that "sheds light on an agency's performance of its statutory duties," and that "disclosure of information about an individual does not serve the 'public interest' merely because it is interesting or socially beneficial in some broad sense." The requester has filed an appeal.

Dunkelberger v. Department of Justice, 906 F.2d 779 (D.C. Cir. 1990).

In an unusual Exemption 7(C) case in which the FOIA requester specifically alleged that a named FBI Special Agent had received a letter of reprimand for misconduct in an investigation of a state official, the D.C. Circuit Court of Appeals approved the FBI's refusal to confirm or deny whether such a letter even existed. The requester, a reporter for the New York Times, argued that disclosure of any such letter would serve the public interest by showing "intentional over-stepping by an FBI agent." The D.C. Circuit, however, in a decision strongly supportive of privacy protection for information in federal personnel files, disagreed. After undertaking in camera review of unspecified documents from the agent's personnel file, which it said revealed "nothing" that would support the reporter's argument "that disclosure would be in the public interest," it held that no privacy invasion of the agent's "general interest in preserving the confidentiality of his personnel files" would be "warranted" under Exemption 7(C).

Colonial Trading Corp. v. Department of the Navy, 735 F. Supp. 429 (D.D.C. 1990).

In a case of first impression, U.S. District Court Judge George H. Revercomb has held that the Department of Defense's technical data statute, 10 U.S.C. § 130, qualifies as an Exemption 3 statute. Colonial Trading, a small business spare parts manufacturer, sought unclassified technical data for future use in bidding on contracts to provide spare parts for the Navy's MK-46 torpedo. Judge Revercomb, however, upheld the Navy's withholding of the data pursuant to 10 U.S.C. § 130, which provides that "the Secretary of Defense may withhold from public disclosure any technical data with military or space application . . . if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 . . . or the Arms Export Control Act." He held that "Section 130 is clearly an exemption 3 statute where it clearly and specifically identifies the 'particular types of matters to be withheld,'" as provided for in subpart (B) of Exemption 3.

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