FOIA Update: Significant New Decisions

January 1, 1987

FOIA Update
Vol. VIII, No. 3
1987


Significant New Decisions

CNA Financial Corp. v. Donovan, 830 F.2d 1132 (D.C. Cir. 1987).

In deciding an appeal of a "reverse FOIA" suit argued nearly six years ago, the D.C. Circuit Court of Appeals held that the Trade Secrets Act does not qualify as an Exemption 3 statute, but that it should be considered to be "at least coextensive" with Exemption 4. Upholding a Labor Department determination that the FOIA requires disclosure of a contractor's EEO reports, Circuit Judge Spottswood W. Robinson III declared that the Act "is not a withholding statute of sufficient rigor or particularity to satisfy Exemption 3," but rather was "one of those pre-existing nondisclosure edicts that have been at least partially superseded by FOIA's newer public access mandate." He reasoned that the purpose of the Trade Secrets Act was to provide a "uniform . . . approach to discouraging unauthorized disclosures of private commercial and financial data entrusted to the Government," and therefore that the scope of the Act is neither broader nor narrower than that of Exemption 4. Absent a specific statute or regulations authorizing disclosure, Judge Robinson concluded, the Act operates to prohibit discretionary disclosure of information determined to fall within the ambit of Exemption 4. Thus, the D.C. Circuit approved Labor's decision to disclose CNA's hiring and promotion statistics for women and minorities, ruling that "anticipated displeasure of its employees" or "unfounded publicity" simply do not amount to "competitive harm."

Critical Mass Energy Project v. NRC, 830 F.2d 278 (D.C. Cir. 1987).

In a decision that appears to hold agencies to a new, higher standard regarding the impairment prong of Exemption 4, the D.C. Circuit Court of Appeals required the NRC to present a detailed factual record demonstrating precisely how disclosure of voluntarily submitted safety reports would impair its ability to obtain them in the future. Although the Court observed that it was preferable for the NRC to have such documents provided voluntarily, it held that voluntary submission alone is insufficient to bring the documents within the purview of the impairment prong. However, the D.C. Circuit accepted the proposition that the "commercial" nature of information need not be determined solely by the submitter's interest in it, ruling that a third party's commercial interest can be sufficient. Significantly, it expressly held that a showing of potential harm to other governmental interests, in this case "program efficiency or effectiveness," could sustain an Exemption 4 claim.

King v. Department of Justice, 830 F.2d 210 (D.C. Cir. 1987).

In a stern reminder to agencies of the need for specificity in Vaughn indexes, the D.C. Circuit Court of Appeals refused to uphold nondisclosure of classified portions of FBI records concerning Carol King, an early civil rights attorney, upon finding that the FBI's "coded" declaration afforded an "insufficient basis for the de novo review" required under Exemption 1. In rejecting the FBI's Exemption 1 justifications as "too vague," the Court emphasized that, given that the information was more than 20 years old and was classified under former Executive Order 12,065, greater specificity was required for meaningful judicial review. It held that the "categorical description of redacted material coupled with categorical indications of anticipated consequences [were] clearly inadequate," where there was no "contextual information . . . available to supplement and particularize the FBI's code descriptions."

Keys v. United States Department of Justice, 830 F.2d 337 (D.C. Cir. 1987).

Refining its approach to Exemption 7(D), the D.C. Circuit Court of Appeals has recognized that, in the routine case, individuals supplying information to law enforcement authorities in connection with a criminal or national security investigation should be deemed confidential sources. Affirming the FBI's withholding under Exemption 7(D) of information pertaining to author Louis Adamic, who was the subject of a national security investigation in the 1940's, the D.C. Circuit for the first time embraced the "functional" approach under that exemption, whereby an implied promise of confidentiality is found "where it is reasonable to infer from the circumstances that its absence would impair the [law enforcement agency's] ability to elicit the information." It thus accepted and applied in this case the proposition that promises of confidentiality are inherently implicit in the interviews conducted by the FBI in investigations relating to espionage and treason. It also accepted use of an FBI "coded" declaration.

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