FOIA Update: Significant New Decisions

January 1, 1989

FOIA Update
Vol. X, No. 1
1989


Significant New Decisions

Hopkinson v. Shillinger, No. 86-2571 (10th Cir. Jan. 23, 1989).

The Tenth Circuit Court of Appeals has ruled that the FBI properly withheld its entire file on a convicted multiple murderer, consisting of requests by a state law enforcement agency for FBI laboratory and fingerprint examinations of physical evidence together with the results of those examinations, pursuant to Exemption 7(D). It held that the lack of a federal investigation into the murders posed no obstacle to meeting Exemption 7's "law enforcement purposes" threshold requirement, given the FBI's authority to render technical and scientific assistance to all law enforcement agencies and the need for cooperation and information-sharing between those law enforcement agencies and the FBI. Noting that the 1986 FOIA amendments explicitly established that state and local law enforcement authorities can qualify as "confidential sources" under Exemption 7(D), the Tenth Circuit extended its recognition of the "inherently implicit" confidential nature of FBI interviews in criminal investigations to situations in which such agencies seek the FBI's technical assistance.

Forman v. Chapoton, Civil No. 88-1151-R (W.D. Okla. Dec. 12, 1988).

Finding that books of materials distributed to individual Treasury Department officials who attended a privately sponsored tax seminar were not "used by the agency for agency business," District Court Judge David L. Russell ruled that those materials are "private or personal records" not subject to the FOIA. Each book contained administrative information about the seminar, together with scholarly articles dealing with the law of federal taxation. They never were integrated into the agency's files because the seminar attendees maintained them in their homes or in their offices with other personal reference materials and were free to retain or dispose of them at their own discretion. Even though some attendees may have "rel[ied] upon the documents in support of agency business," Judge Russell held that such use for "personal reference" purposes does not "by itself convert these documents into agency records." The requester has appealed.

Washington Post Co. v. Department of Justice, 863 F.2d 96 (D.C. Cir. 1988).

In an unusual, piecemeal decision, the D.C. Circuit Court of Appeals has reversed, remanded and reserved judgment on various aspects of a FOIA case involving a self-evaluative report prepared by Eli Lilly & Co. regarding its drug Oraflex. The D.C. Circuit flatly rejected the position that the report's disclosure was prohibited by Rule 6(e) of the Federal Rules of Criminal Procedure, declaring that under the standards of its decision in Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 582-84 (D.C. Cir. 1987), the report was "extrinsic" to the grand jury process. Remanding for further factual findings on the case's rare Exemption 7(B) claim, it established a standard for such withholding: "(1) that a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not that disclosure of the material sought would seriously interfere with the fairness of those proceedings." Pending further adjudication of the Exemption 7(B) issue, the D.C. Circuit chose to reserve judgment on the two independent Exemption 4 grounds also involved -- that the report constitutes confidential commercial information and that it is protected by the critical self-evaluative privilege. It also rebuffed Eli Lilly's Exemption 7(C) claim.

Washington Post Co. v. HHS, No. 88-5094 (D.C. Cir. Jan. 6, 1989).

In another chapter of a nearly decade-long suit concerning financial disclosure forms filled out by consultants to the National Cancer Institute, the D.C. Circuit Court of Appeals for the third time remanded the case for further district court proceedings. The district court had most recently ruled that disclosure would impair HHS's ability to obtain "full and accurate information" from future consultants, who might narrowly construe the form's reporting requirements if they learned it would be publicly disclosed. Although HHS had submitted detailed affidavits supporting this conclusion, the D.C. Circuit dwelled on the fact that The Washington Post had "vigorously contested" the agency's position with its own affidavits, thus creating a "factual dispute" which, it said, precluded summary judgment. Even though a finding of impairment under Exemption 4 necessarily involves a "predictive" harm that is inherently speculative, the D.C. Circuit declared that the adjudication of even that type of issue requires some form of evidentiary proceeding. It also seemingly engrafted an entirely new requirement onto Exemption 4, by directing the district court to conduct a "rough balancing of the extent of impairment and the importance of the information against the public interest in disclosure."

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