FOIA Update: Significant New Decisions

January 1, 1988

FOIA Update
Vol. IX, No. 3
1988


Significant New Decisions

New York Times Co. v. NASA, 852 F.2d 602 (D.C. Cir. 1988).

In a disturbing split decision, the D.C. Circuit Court of Appeals has held that the audio tape of the space shuttle Challenger crew's final minutes must be disclosed because it fails to meet Exemption 6's "similar file" threshold requirement, which has long been regarded as satisfied by any "information which applies to a particular individual." Although NASA released a written transcript of the recording, it withheld the audio tape to protect the privacy interests of the surviving families. However, by narrowly interpreting Department of State v. Washington Post Co., 456 U.S. 595 (1982), the panel majority held that the recording was not personal in nature because it "contains no information about any astronaut beyond participation in the launch." Circuit Court Judge Douglas H. Ginsburg strongly dissented, finding it "inconceivable that the 'sound and inflection' of a person's voice during the last seconds of his or her life is not information that 'somehow relates to an individual's life.'" A petition for rehearing en banc has been filed.

Irons v. FBI, 851 F.2d 532 (1st Cir. 1988).

In a decision that is particularly troubling to criminal law enforcement agencies, the First Circuit Court of Appeals has held that the act of testifying at a trial operates to waive certain of the protections regularly afforded confidential sources under Exemption 7(D). At issue were informant statements taken by the FBI from individuals who subsequently testified at criminal trials brought under the Smith Act against Communist Party members. Although acknowledging that other circuits seem to have afforded protection for such records, the First Circuit held that in view of the considerable latitude granted in cross-examination, a witness should be deemed to have relinquished confidential source protection for "information which was sufficiently closely related to the subject matter of the informant's trial testimony that he or she should reasonably have expected it to be within the universe of likely inquiry." A petition for rehearing en banc has been filed.

John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir. 1988).

In a strangely styled and rather cursory opinion, the Second Circuit Court of Appeals has held that records initially compiled during a routine audit of a defense contractor, which subsequently were recompiled for purposes of a criminal fraud investigation of that contractor, were "not 'compiled for law enforcement purposes'" and therefore do not satisfy Exemption 7's threshold requirement. (This decision was handed down just three weeks after Gould, Inc. v. GSA, 688 F. Supp. 689 (D.D.C. 1988), which on strikingly similar facts, found Exemption 7's threshold language to be satisfied where audit records were recompiled into the file of a later criminal investigation.) Recognizing that its decision "may compel the government to disclose matters that are ordinarily beyond the scope of [criminal] discovery" and that this might "enable a potential defendant to prepare responses to the investigation and to construct a defense to criminal charges," the Second Circuit stated only that such a concern "should be addressed to Congress." A petition seeking both panel and en banc rehearing has been filed.

Schwaner v. Department of the Air Force, Civil No. 88-0560 (D.D.C. Aug. 1, 1988).

In only the second lawsuit to focus on the applicability of Exemption 2 to agency personnel lists, United States District Court Judge Gerhard A. Gesell upheld the Air Force's denial of an insurance salesman's request for a list of personnel stationed at Bolling Air Force Base, thereby relieving the service from the "cumulating expense" of retrieving and processing the records. Finding both requirements of Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n.4 (D.C. Cir. 1983), to be satisfied by such a list, Judge Gesell first held as a threshold matter that "the bits of data Schwaner requests relate only to internal 'house-keeping matters,' if anything does." Most significantly, he held that neither the list nor Schwaner's "vague assertions of a theoretical public interest" met the "'low threshold' test of being 'relate[d] to significant public interests' in this routine commercial context." Specifically distinguishing the public interest served by the newspaper-requester that had successfully sought a similar personnel list in Army Times Publishing Co. v. Department of the Army, 684 F. Supp. 720, 724 (D.D.C. 1988), Judge Gesell found that satisfying this requester's entirely commercial interest simply would not "inform the citizenry of the workings of its government, or foster public accountability by monitoring governmental action." He therefore concluded that the unique "burden" protection of Exemption 2 was properly applicable.

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