FOIA Update: Significant New Decisions

January 1, 1987

FOIA Update
Vol. VIII, No. 2
1987


Significant New Decisions

Senate of Puerto Rico v. Department of Justice, 823 F.2d 574 (D.C. Cir. 1987).

In a decision seeming to narrow the scope of grand jury secrecy under Federal Rule of Criminal Procedure 6(e), as incorporated by Exemption 3, the D.C. Circuit Court of Appeals ruled that the mere fact that records compiled during a criminal civil rights investigation into the murder of two political activists had been presented to a grand jury did not necessarily require their withholding. Rejecting a test based on the literal language of the rule -- "matters occurring before [a] grand jury" -- the D.C. Circuit stated that the grand jury secrecy rule protects only information which would "tend to reveal some aspect of the grand jury's investigation," such as "the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like." Although purporting to acknowledge the "necessarily broad" scope of Rule 6(e), it held that an agency must provide an "affirmative demonstration of a nexus between disclosure and revelation of a protected aspect of the grand jury's investigation" in order to bring information within the rule's protective ambit.

Aronson v. HUD, 822 F.2d 182 (1st Cir. 1987).

Balancing the public interest in reuniting "rightful owners" with their money against the privacy interest of such persons to be free from solicitation, the Court of Appeals for the First Circuit held that HUD properly withheld the names and last-known addresses of individuals entitled to National Housing Act refunds only while HUD "actively search[ed]" for these potential beneficiaries. The requester, a commercial "tracer," sought this data to aid him in his efforts to locate these persons and then offer, for 35% of each amount, to assist them in claiming their refunds. HUD concluded that disclosure of this information would be a clearly unwarranted invasion of privacy under Exemption 6 and it refused to release the data until two years after each reimbursement vested. Recognizing a significant privacy interest in being free from the overtures of commercial solicitors, the First Circuit decided that the public interest in disclosure should override such privacy interests only at the point at which HUD no longer "actively search[es] for eligible mortgagors." Because it found that HUD pursued no special efforts to contact these persons beyond the first year, it ordered HUD to disclose the names and addresses upon the conclusion of that period.

Delany, Migdail & Young v. IRS, 826 F.2d 124 (D.C. Cir. 1987).

In a decision clarifying the "in anticipation of litigation" standard of the attorney work-product privilege, the D.C. Circuit Court of Appeals has held that IRS memoranda prepared to assess the types of legal challenges that potentially could be mounted against a proposed enforcement program are properly protectible as attorney work-product under Exemption 5. At issue were memoranda analyzing the legal ramifications of an IRS statistical program to be used to audit large accounts. The D.C. Circuit rejected the plaintiff's argument that the absence of any specific litigation claim addressed in the memoranda precluded their attorney work-product status. Instead, it focused upon the function of the documents and upon the fact that the plaintiff was "seeking the agency's attorney's assessment of the program's legal vulnerabilities in order to make sure it does not miss anything in crafting its legal case against the program." The D.C. Circuit's ruling thus indicates that the attorney work-product privilege can protect even a document created in anticipation of litigation in general before any specific litigation claim has arisen.

New York Times Co. v. NASA, Civil No. 86-2860 (D.D.C. June 3, 1987).

In an extraordinary Exemption 6 decision, District Court Judge Norma Holloway Johnson has ordered disclosure of the audio tape of the ill-fated journey of the space shuttle Challenger. While NASA has released a transcript of the tape, it has withheld the audio tape itself to protect the personal privacy interests of the surviving families. However, Judge Johnson ruled against the agency on threshold Exemption 6 grounds. Narrowly applying the Supreme Court's decision in Department of State v. Washington Post Co., 456 U.S. 595 (1982), she held that the voices on the tape are not eligible for Exemption 6 protection simply because they do not "contain[] personal information about a particular person." She therefore did not even undertake a balancing of interests under the exemption. The decision is being appealed.

Spannaus v. United States Department of Justice, 824 F.2d 52 (D.C. Cir. 1987).

In a decision of first impression, the D.C. Circuit Court of Appeals has ruled that 28 U.S.C. § 2401(a), the six-year general statute of limitations governing "every civil action" against the United States, applies to bar a FOIA suit filed more than six years after its underlying administrative process was "constructively" exhausted. Writing for the court, Circuit Judge Steven F. Williams observed that "the words 'every civil action' mean what they say" and that because § 2401(a) is a "jurisdictional condition attached to the government's waiver of sovereign immunity," it must be "strictly construed." Judge Williams noted that a "right of action first accrues" under § 2401(a) as soon as "the person challenging the agency action can institute and maintain a suit in court" and that the statute of limitations thus commenced to run in this case in October 1977 when the FBI failed to comply with the plaintiff's FOIA request within ten working days. Accord 5 U.S.C. § 552(a)(6)(C). He flatly rejected the plaintiff's argument that the statute of limitations should commence to run only when all administrative appeals have been completed (almost two years later, in this case), observing that such a construction ignores "the clear language of a statute of limitations that conditions a waiver of sovereign immunity."

Goldberg v. Department of State, 818 F.2d 71 (D.C. Cir. 1987).

Rejecting a novel challenge to an agency's exercise of classification judgment under Exemption 1, the D.C. Circuit Court of Appeals upheld the nondisclosure of State Department cables that originally had been prepared and treated as unclassified records at scores of embassies worldwide. The requester, an investigative reporter, argued that the initial classification determinations made "in the field" should govern, but the D.C. Circuit declared that agencies have explicit authority "to make classification and reclassification decisions in light of, and at the time of, FOIA requests," and that they may do so based upon the judgments reached at their headquarters. It concluded that the State Department's ultimate classification judgment was entirely sound in this case and that the earlier nonclassification of the cables did not constitute "contrary evidence."

Badhwar v. Department of the Air Force, 829 F.2d 182 (D.C. Cir. 1987).

In a relatively narrow holding dealing primarily with Exemption 5, the D.C. Circuit Court of Appeals reaffirmed the use of the Machin privilege under the FOIA to protect information supplied by witnesses in military aircraft accident investigations. (First recognized in Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896 (1963), this privilege was expressly incorporated into the FOIA by the Supreme Court in United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984).) The plaintiff, an investigative reporter, argued that this privilege should be abandoned as merely allowing the military services to cover up the inadequacies of their aircraft safety programs. The D.C. Circuit firmly rejected this attack on the privilege, however, declaring that "Exemption 5 requires the application of existing rules regarding discovery, not their reformulation." Significantly, it also remanded an additional portion of the case for the district court to make a specific evaluation under Exemption 6 of whether the information contained in several autopsy reports at issue is "of a kind that would shock the sensibilities of surviving kin."

Multnomah County Medical Society v. Scott, 825 F.2d 1410 (9th Cir. 1987).

After closely examining a medical society's professed "purely educational" interest in the disclosure of the names and home addresses of Medicare recipients, the Ninth Circuit Court of Appeals reversed a lower court order that had required disclosure of the information. The Ninth Circuit found that the medical society's intended use of the mailing list -- to provide Medicare recipients with a pamphlet advising them of the availability of treating physicians in their local area -- was in fact "self-serving" and "of questionable public interest and value" because it failed to define and distinguish participating and nonparticipating physicians. Declaring that under Exemption 6, "Medicare beneficiaries have a right not to have their age and disability status made public" where the requester's "commercial motive significantly outweighs any other motivation favoring disclosure," the Ninth Circuit concluded that disclosure in this case would result in a clearly unwarranted invasion of personal privacy.

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