FOIA Update: Significant New Decisions

FOIA Update
Vol. X, No. 4
1989

Formaldehyde Institute v. HHS, No. 88-5383 (D.C. Cir. Nov. 17, 1989).

Reversing a lower court decision that denied Exemption 5 protection to documents provided to a government agency by an "outside" entity, the D.C. Circuit Court of Appeals pointedly ruled that the exemption's threshold terms, "inter-" and "intra-agency," are not to be construed rigidly. The record at issue consisted of evaluative comments provided to an NIH scientist by a scientific journal regarding an article submitted to the journal for publication in the course of the scientist's official duties. The D.C. Circuit found that the comments regarding the article's suitability for publication, used to assist agency decisionmakers in determining whether and where to publish it, were both predecisional and deliberative. Noting that the agency regularly had to rely upon the comments of outside expert scientists in evaluating agency work for publication, and their clear "role" in the agency's process, it also held that Exemption 5 did not require a contractual relationship or formal solicitation where the outside reviews were provided in accordance with "a mutual understanding between the agency and journal[]" that the agency would use them in a deliberative process crucial to pursuing its statutory duty to publish scientific research.

Forman v. Chapoton, No. 89-6035 (10th Cir. Oct. 31, 1989).

In an unpublished opinion, the Tenth Circuit Court of Appeals has held that binders containing administrative materials and scholarly articles distributed to individual Treasury Department officials attending a privately sponsored tax seminar are not "agency records" for purposes of the FOIA. The Tenth Circuit initially observed that the requester, a tax law professor, had not rebutted the agency's showing that it did not have control over the material because the binders were not placed in the agency's files or disseminated to other members of the staff for official use. Then, applying Department of Justice v. Tax Analysts, 109 S. Ct. 2841 (1989), for the first time at the appellate level, it squarely held that even though information derived from the binders "may have been useful and ultimately benefited" the work of the Department of Treasury, "this [by itself] does not prove either that the agency obtained the binder or controlled it."

Jowett, Inc. v. Department of the Navy, Civil No. 89-0091 (D.D.C. Oct. 30, 1989).

Finding that disclosure of contract audit reports prepared by the Defense Contract Audit Agency "would destroy the delicate balance of the government contractor/contracting agency relationship," U.S. District Court Judge Charles W. Richey ruled that such records were protectible under Exemption 5. Judge Richey reasoned that since the DCAA has no final authority on contractors' equitable adjustment claims, and since the audits were specifically prepared "for the purpose of advising" the Navy's contracting officer as to the merits of that claim, the reports were predecisional. He concluded that because disclosure of these reports -- which consisted of "lists of the costs questioned with accompanying notes providing the auditor's reasons, opinions and explanations as to why costs were questioned" -- would "greatly interfere with the contracting officer's decision-making process," they were covered by the deliberative process privilege.

Summers v. Department of Justice, Civil No. 88-2771 (D.D.C. Sept. 27, 1989).

In a decision strongly reaffirming the efficacy of the "exceptional circumstances" and "due diligence" standards first established in Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 615-16 (D.C. Cir. 1976), U.S. District Court Judge Gerhard A. Gesell approved the FBI's policy of processing FOIA requests in its backlog on a "first in, first out" basis and held that the Bureau was entitled to a 22-month stay of proceedings in order to complete the processing of the requests at issue. The requester sought preferential treatment for his requests for records concerning 28 prominent individuals who are now deceased, on the grounds that he planned to write a biography of J. Edgar Hoover and that his publisher had set a deadline that could not be met unless expedited processing ahead of other requesters were to be granted. In denying this relief, Judge Gesell declared that "a commercial publisher cannot set FOIA deadlines." He further noted that "[t]he FBI has an increasing FOIA backlog due to lack of funds" and that "there is no factual showing that the FBI is departing from standard practice in processing the requests or attempting to avoid prompt disclosure." For these reasons, Judge Gesell pointedly concluded, the requester "must stand in line and await his turn [as t]his is what Open America dictates."

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