FOIA Update: Significant New Decisions

January 1, 1988

FOIA Update
Vol. IX, No. 4
1988


Significant New Decisions

Alyeska Pipeline Service Co. v. EPA, 856 F.2d 309 (D.C. Cir. 1988).

Reexamining the propriety of summary judgment in FOIA cases where the parties' affidavits disagree on the likely consequences of disclosure, the D.C. Circuit Court of Appeals has held that its previous decision in Washington Post Co. v. Department of State, 840 F.2d 26 (D.C. Cir. 1988) (petition for rehearing en banc pending), does not mean that summary judgment is precluded whenever affidavits disagree on such harm predictions. Rather, it held that a motion for summary judgment may not be "defeated simply by a bare opinion or an unaided claim that a factual controversy persists." Thus, in this Exemption 7(A) case, the D.C. Circuit upheld the granting of summary judgment in favor of EPA based upon the agency's attestation that disclosure would prematurely reveal the specific scope and focus of its investigation of Alyeska (which could foreseeably lead to the intimidation of potential employee witnesses), notwithstanding Alyeska's attestations that it was very much aware of the investigation's "general" scope.

Formaldehyde Institute v. HHS, Civil No. 87-3266 (D.D.C. Sept. 6, 1988).

Addressing the applicability of Exemption 5 to documents provided to a government agency by an "outside" entity as part of an official agency function, District Court Judge John Garrett Penn refused to regard such records as "intra-agency" communications protectible under the exemption. At issue were 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. It was uncontested that the use of such comments is an essential part of the publication process, that they are expressed with great candor by expert peers and that they therefore are treated as highly confidential. Nevertheless, although stating that this was "a very close case," Judge Penn rejected the argument that, in making recommendations to agency scientists, the journal is "functionally" equivalent to agency staff. Rather, he ruled that the comments were generated as part of the journal's "internal process of review, and not as part of [HHS's] consultative process." Yet despite his ruling that Exemption 5's threshold was not met, Judge Penn credited the harms sought to be prevented by the deliberative process privilege, inexplicably suggesting that any chilling effect upon the authors of the comments could be avoided by withholding their identities as exempt. The Government has appealed.

Washington Psychiatric Society v. OPM, Civil No. 87-1913 (D.D.C. Oct. 13, 1988).

In a vigorously contested case involving detailed compilations of insurance company user statistics and benefit costs, District Court Judge Louis F. Oberdorfer ruled that disclosure of such compilations would cause substantial harm to the competitive positions of the submitting insurance companies -- three of the largest participants in the Federal Employee Health Benefit Program -- and that they were properly withheld under Exemption 4. Despite the requester's claims that the statistics were "stale" because they were more than two years old, Judge Oberdorfer found that the data would "assist the [smaller] competitors of those who submitted the documents by helping them design . . . a benefit package to compete with the larger carriers without taking the risk of offering" such a package themselves. Thus, he concluded that disclosure would provide a competitive advantage to those smaller companies who could "reap the benefits of the larger carriers' experience without incurring the same costs or risks."

Assassination Archives & Research Center, Inc. v. CIA, No. 88-5315 (D.C. Cir. Oct. 13, 1988) (unpublished order).

Acting on an extraordinary appeal, the D.C. Circuit Court of Appeals refused to grant expedited consideration and summary reversal of a lower court ruling in which United States District Court Judge George H. Revercomb declined to order the CIA to expedite the processing of a FOIA request for any CIA records pertaining to Vice President George Bush's alleged relationship with that agency in the 1960's. In seeking to compel the CIA to depart from its usual practice of processing FOIA requests on a chronological basis, the Assassination Archives argued that it had an "urgent" need to inform the public, in time for the impending presidential election, about Vice President Bush's alleged ties to the CIA prior to his term as CIA Director. Making short shrift of this argument, Circuit Court Judges Patricia M. Wald, Harry T. Edwards and Stephen F. Williams ruled that there were no "strongly compelling" reasons to support any "unusual interest in prompt disposition" of the case.

Kaganove v. EPA, 856 F.2d 884 (7th Cir. 1988).

The Seventh Circuit Court of Appeals reversed a lower court disclosure order and followed the D.C. Circuit's ruling in National Treasury Employees Union v. Customs Serv., 802 F.2d 525 (D.C. Cir. 1986), to apply Exemption 2 to EPA's merit promotion rating plans. The Seventh Circuit saw no legal distinction between EPA's rating plan and the "crediting plan" held protectible in NTEU, noting that "EPA, and any other employer, reasonably would expect" to keep internal a plan which sets forth specific criteria by which it weighs applicant qualifications. It specifically found that release of EPA's rating plan "would frustrate the document's objective [and] render it ineffectual" for its purpose because job candidates, once learning of the precise criteria to be applied, might "embellish their job and educational history in unverifiable ways so that they would receive a higher score on the Rating Plan's numerical system." Recognizing this problem, the Seventh Circuit held that withholding the plan under Exemption 2 was entirely appropriate because its disclosure would risk circumvention of agency "regulations or standards."

Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988).

In a startling decision that departs from basic principles of sovereign immunity and statutory interpretation, the Ninth Circuit Court of Appeals has ruled that district courts have the authority to order the immediate payment of "interim" attorney's fees in FOIA cases, notwithstanding the existence of other federal statutes that prohibit agencies from paying any such fees until all appellate remedies have been exhausted and the judgment is "final." After the district court ruled against the agency on a preliminary fee waiver question in this case, it awarded the plaintiff "interim" attorney's fees, which the government was ordered to pay immediately. After obtaining a stay of the immediate payment requirement from the Ninth Circuit, the agency appealed, arguing that the FOIA's attorney's fees provision, 5 U.S.C. § 552(a)(4)(E), did not expressly authorize interim fees and that, in any event, the federal judgment fund statutes precluded payment of any such award until all appeals had been exhausted. Rejecting these arguments, however, the Ninth Circuit ruled that the FOIA's attorney's fees provision authorizes interim awards "because of the clear congressional intent that § 552(a)(4)(E) operate like comparable attorney's fees provisions, and because interim fees so clearly further the purpose of the FOIA fee provision." The Government's petition for rehearing en banc was denied.

National Wildlife Fed'n v. United States Forest Service, 861 F.2d 1114 (9th Cir. 1988).

In an decision further outlining the nature of information protected under the deliberative process privilege, the Court of Appeals for the Ninth Circuit upheld the application of Exemption 5 to draft reforestation plans and related documents even though they contained detailed factual information. The Ninth Circuit rejected the requester's argument that records which do not contain "non-binding recommendations on law and policy" should not be protected under the privilege. Instead, it firmly embraced a "process-oriented" approach aimed at protecting the quality of the agency decisionmaking process. The ultimate objective of the deliberative process privilege under Exemption 5, emphasized the court, is to "safeguard the deliberative process of agencies, not the paperwork generated in the course of the process." As such, it said, Exemption 5 protects "[m]aterials that allow the public to reconstruct the predecisional judgments" of agency officials even though not explicitly revealing their mental processes. Pragmatically applying this "process-oriented" standard, the Ninth Circuit concluded that the records at issue "reveal [the agency's] deliberative processes, and, therefore, fall within [Exemption 5]."

Vietnam Veterans of America v. Department of the Navy, Civil No. 86-0357 (D.D.C. Sept. 6, 1988).

Clarifying the scope of the publication and routine public availability requirements of subsections (a)(1) and (a)(2) of the FOIA, District Court Judge George H. Revercomb ruled that legal opinions rendered by the Judge Advocates General of the Army and the Navy are not required to be published in the Federal Register or to be made available to the public. Although such opinions are indexed and filed to facilitate future retrieval by JAG staff for research and reference, it was found that they are prepared in response to requests for legal advice by members of the respective services, are not circulated within the agencies, and contain "what may be broadly characterized as legal recommendations." Even though both services conceded that the advice in the opinions usually is followed, Judge Revercomb specifically found that "the undisclosed opinions are not authoritative pronouncements that have been 'adopted by the agency,'" a factor which is essential to trigger either the publication or the public availability requirements of the Act. Because "the JAG has no authority to approve action proposed in a request for opinion, but only to dispense advice," he concluded, such opinions need not be published or placed in a public reading room.

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