FOIA Update: Significant New Decisions

January 1, 1988

FOIA Update
Vol. IX, No. 2
1988


Significant New Decisions

National Security Archive v. Department of Defense, Civil No. 86-3454 (D.D.C. June 16, 1988).

In the first direct challenge to OMB's fee-category definitions under the Freedom of Information Reform Act, United States District Court Judge John Garrett Penn has approved the Department of Defense's regulation implementing these guidelines. The National Security Archive, a private record repository whose purpose is to compile federal records concerning foreign, defense and intelligence policy, see FOIA Update, Winter 1986, at 1, had claimed that it qualified for preferential fee treatment under the FOIA both as an "educational institution" and as a "representative of the news media." Without deciding whether OMB's uniform fee guidelines are necessarily controlling, Judge Penn observed that "Congress did not define the terms . . . [but, i]nstead, it delegated to the agencies the task of promulgating regulations setting forth the procedures and guidelines." Noting that the requester "is trying to obtain a [search-fee] waiver through the judicial process after entities like it were denied such waivers in the legislative process," he firmly held that the definition of educational institutions as schools with "programs of scholarly research," and the definition of news media as entities which regularly publish or broadcast news, were "based upon a reasonable interpretation of the [1986 FOIA] Amendments." The National Security Archive has appealed.

Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988).

Analyzing the dissemination requirement of the new fee waiver provision established by the Freedom of Information Reform Act, the D.C. Circuit Court of Appeals has ruled that even where the subject matter of a FOIA request is undeniably of public interest, the requester's "inability to disseminate the [requested] information to the public" is, by itself, a sufficient basis for denying a fee waiver. Moreover, it rejected the requester's mere assertion of his intent to give the released documents to a newspaper as too tenuous a showing of an actual ability to serve the public interest by disseminating information that would increase the public understanding of government operations or activities. Finally, the D.C. Circuit pointedly reminded requesters that despite changes to the fee waiver provision, the burden for satisfying the public interest standard remains on them -- and that that burden must be met at the administrative level, because the court's review is limited by the statute to the record before the agency.

Schell v. HHS, 843 F.2d 933 (6th Cir. 1988).

In an opinion significant for its pragmatic analysis of the predecisional requirement of the deliberative process privilege, the Sixth Circuit Court of Appeals has held that a recommendation is protectible under Exemption 5 even where it is never acted upon. The record at issue was a "candid" response from several administrative law judges to a proposal written by other employees critical of the ALJs. Recognizing that "the ALJs' advice would not have been so forthcoming had they known the memorandum would have reached public attention," the Sixth Circuit found that its disclosure would harm the deliberative process. It flatly rejected the argument that the advice was not predecisional because it was not ultimately the basis of a specific decision, stating that a recommendation is "no less predecisional because it is accepted or rejected in silence, or perhaps simply incorporated into the thinking of superiors for future use."

Acumenics Research & Technology v. Department of Justice, 843 F.2d 800 (4th Cir. 1988).

In the first appellate decision to rule on the merits of an agency's determination to release unit prices over the objections of the submitter, the Fourth Circuit Court of Appeals held that disclosure of the prices would not cause the submitter to suffer substantial competitive harm. In this "reverse" FOIA case, the submitter had argued that disclosure of its unit prices would permit competitors to determine its "multiplier" or markup percentage. After an extensive factual analysis of that claim, however, the Fourth Circuit agreed with the district court that "there are too many unascertainable variables in the unit price calculation" for a competitor to accurately deduce the submitter's multiplier. It further held that the submitter was not entitled to de novo review, because the agency's fact-finding procedures were not inadequate. Those procedures, which track those mandated by Executive Order 12600, included notice of the request, an opportunity to object, agency consideration of the objections and the issuance of a statement detailing the reasons why the objections are not sustained.

Tax Analysts v. United States Department of Justice, 845 F.2d 1060 (D.C. Cir. 1988).

In a controversial decision that greatly expands the definition of "agency records" subject to the FOIA, the D.C. Circuit Court of Appeals has ruled that the Justice Department is required to make copies of district court slip opinions located in its files available to a commercial publisher for its inspection. The district court had found that the opinions were publicly available from the courts and therefore not "improperly withheld," and it dismissed the action for lack of jurisdiction. Writing for the court, Chief Judge Patricia Wald reversed the district court, ruling that the slip opinions were "agency records" subject to disclosure under the FOIA and that an agency cannot avoid its statutory duty to disclose nonexempt records by directing a requester to "another public source" for the information. Acknowledging that imposing an enormous and costly burden on agencies to provide publicly available material to a commercial publication "is certainly not the commonly perceived purpose of the FOIA," Judge Wald nevertheless concluded that there was simply no basis under the FOIA that would permit the withholding of these records. The Department's petition for rehearing en banc was denied.

Army Times Publishing Co. v. Department of the Army, 684 F. Supp. 720 (D.D.C. 1988).

Confronting the issue of whether Exemption 2 protects federal agency personnel lists, United States District Court Judge Joyce Hens Green rejected the Army's attempt to so apply it to avoid a forty-hour burden of processing a request for a computerized list of names, pay grades, and installation locations of all active duty Army personnel in the United States, except those in sensitive or routinely deployable units. "Reading exemption 2 narrowly," she held that the first requirement of Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n.4 (D.C. Cir. 1983), was not satisfied because the computerized list was not "an internal personnel rule or practice nor solely related to such"; she found "not persuasive" the Army's characterization of the list as "supporting and facilitating internal personnel activities." Even though the Army showed that the data "are not used in dealing with the public nor do they in any way regulate or impact upon the public," Judge Green ruled that the plaintiff's planned use of the list was relevant to the "no genuine public interest" standard of Founding Church of Scientology. Finding that this one newspaper/requester enjoys a unique status in the Army community, she held that "the broad circulation of the Army Times is in the public interest," even though its "motive is commercial in nature."

Gould, Inc. v. GSA, Civil No. 87-1319 (D.D.C. June 1, 1988).

United States District Court Judge Stanley Sporkin has held that "otherwise non-exempt documents created by a government agency may subsequently become eligible for Exemption 7(A) if they are thereafter 'compiled for law enforcement purposes.'" The requested records here included two post-award audit reports which at the time of the FOIA request constituted a central part of an ongoing criminal investigation. Although Judge Sporkin was unable to determine whether the audit reports were initially generated as part of a specifically focused inquiry, he held that sometime before their completion, GSA's inquiry had developed "the requisite law enforcement tilt" to bring them within the purview of Exemption 7. Alternatively, he held that the plain language of the exemption encompassing records "compiled for law enforcement purposes" protects documents "already generated or collected by the government for non-law enforcement purposes" if they subsequently are "compiled" for law enforcement purposes. He concluded that the pre-1986 language was so unambiguous on this point that it was unnecessary to discuss the possible impact of the 1986 FOIA Amendments, which he observed certainly did not operate to narrow Exemption 7's scope in any respect.

Thurner Heat Treating Corp. v. NLRB, 839 F.2d 1256 (7th Cir. 1988).

The "inter-agency or intra-agency" threshold of Exemption 5 has been rigidly applied by the Seventh Circuit Court of Appeals in a decision holding that affidavits from nongovernment employees cannot qualify for protection under the exemption. At issue were forty-eight affidavits by current and former Thurner employees recorded by agents of the NLRB in connection with an enforcement proceeding against the company. Interpreting the exemption's threshold language literally, the Seventh Circuit ruled that it was intended to apply exclusively to "internal" agency documents. Because the affiants were not agency personnel, it concluded the records were "not internal NLRB documents, and thus are not 'intra-agency memorandums.'" In reaching its conclusion the Seventh Circuit ignored the D.C. Circuit's "functional test" as articulated in Durns v. Bureau of Prisons, 804 F.2d 701, 704 n.5 (D.C. Cir. 1986), cert. granted, judgment vacated on other grounds & remanded, 108 S. Ct. 2010 (1988). As the affidavits were found not to meet the threshold of Exemption 5, the issue of whether they would have been privileged from civil discovery under the attorney work-product privilege was not reached.

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