FOIA Update: Significant New Decisions

January 1, 1986

FOIA Update
Vol. VII, No. 3
1986


Significant New Decisions

Durns v. Bureau of Prisons, No. 85-5704 (D.C. Cir. Sept. 12, 1986), amended upon filing of dissenting opinion (D.C. Cir. Oct. 10, 1986).

In potentially the most important Exemption 5 decision of the year, the U.S. Court of Appeals for the D.C. Circuit has ruled that agency copies of presentence reports prepared by and for employees of the judicial branch of government satisfy Exemption 5's "inter-agency or intra-agency memorandums" threshold and, because they are not "routinely available" in civil discovery, can be withheld under that exemption. Circuit Judge Laurence H. Silberman, joined by former Circuit Judge Antonin Scalia, first declared that Exemption 5's threshold language should be given a sufficiently "functional" reading to encompass such reports. Then, finding an "impressive body of doctrine" in discovery case law recognizing the "normally" privileged nature of presentence reports, albeit in a third-party context, he concluded that the Supreme Court's rationale in United States v. Weber Aircraft Corp., 465 U S. 792, 802 (1984), compelled their nondisclosure under the FOIA. Lastly, he dismissed the argument that FOIA exemptions had been waived when the requester was permitted to view (but not retain) a copy of his report during the parole process, on the basis that such a fact simply "does not establish that presentence reports are routinely available" in civil discovery. A petition for rehearing en banc, based largely on Circuit Judge J. Skelly Wright's dissent, is pending.

Washington Post Co. v. HHS, 795 F.2d 205 (D.C. Cir. 1986) -- reversing 603 F. Supp. 235 (D.D.C. 1985).

In a surprising and controversial decision, a divided panel of the U.S. Court of Appeals for the D.C. Circuit rejected as untimely HHS's use of an Exemption 4 "privilege" defense that was raised for the first time on remand from the court's previous order, disavowing the court's prior suggestion to the government that it raise such a new defense. In the prior appeal, the D.C. Circuit had found that the requested reports of financial interests held by HHS consultants met Exemption 4's threshold, but it remanded the case for reconsideration of the applicability of the "confidentiality" portion of that exemption. Writing for the court, Circuit Judge Patricia M. Wald had stated that "in case the issue is raised on remand" the applicability of the confidential report privilege should be considered.

On remand, HHS readily asserted the confidential report privilege under Exemption 4 and the district court, citing the Supreme Court's intervening decision in United States v. Weber Aircraft Corp., 465 U.S. 792 (1984), indeed held the records protectible on that basis. See FOIA Update, Winter 1985, at 5. Back on appeal, however, a majority opinion written by then Circuit Judge Antonin Scalia and joined by Judge Wald ironically dismissed as "dictum" the court's earlier invitation and held that HHS had "waived" its right to raise this new aspect of Exemption 4 by not doing so at the outset of the case.

Church of Scientology v. IRS, 792 F.2d 146 (D.C. Cir. 1986).

In a long-awaited decision addressing the circumstances under which a statute can supersede, or "displace," the FOIA as the primary mechanism for agency record disclosure, the U.S. Court of Appeals for the D.C. Circuit has held that Section 6103 of the Internal Revenue Code, 26 U.S.C. § 6103 (1982) -- which specifies lengthy exceptions to its general rule of nondisclosure for tax return information -- does not "displace" the FOIA despite the "painstaking detail" of its exceptions. The D.C. Circuit held that "that sort of comprehensiveness has nothing to do with the appropriateness of continuing application of the FOIA." Rather, it declared, the implicit "displacement" of the FOIA may be found only where a statute has "established some rules and procedures -- duplicating those of FOIA -- for individual members of the public to obtain access to documents [generated under that statute]." (By contrast, the disclosure provisions of Section 6103 pertain mostly to specific private individuals or government officials, not to the public at large.) The consequence of this decision is that, as a mere Exemption 3 statute, Section 6103 will be subject to all of the procedural requirements of the FOIA, including de novo judicial review.

Tax Analysts v. United States Department of Justice, 643 F. Supp. 740 (D.D.C. 1986).

In a case of first impression, U. S. District Court Judge Stanley S. Harris relied upon GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 385 (1980), to hold that agency copies of records concededly available through the clerks' offices of the federal district courts were not "improperly withheld" under the FOIA by the Department of Justice's Tax Division. The requester, a tax law publication service, had periodically sought the Tax Division's copies of recent district court tax case opinions. While recognizing that the requester might encounter some obstacles in obtaining these slip opinions directly from their respective courts, Judge Harris pointedly noted that they are in fact "publicly available for inspection and copying [through each clerk's office] almost immediately upon issuance." He concluded that the availability of the opinions negated any "danger of secret agency law" and that FOIA-ordered disclosure would not further the congressional purpose of enabling the public to obtain records concerning the "decision-making procedures" of federal agencies. The requester has appealed.

Spannaus v. United States Department of Justice, 643 F. Supp. 698 (D.D.C. 1986).

In another case of first impression, U.S. District Court Judge Joyce Hens Green has ruled that the six-year general statute of limitations governing all suits against the United States applies to bar a FOIA suit filed more than six years after its underlying administrative process was "constructively" exhausted. Dismissing as untimely a FOIA lawsuit seeking FBI records pertaining to Lyndon H. LaRouche, Judge Green noted that a "right of action first accrues" under 28 U.S.C. § 2401(a) when the "right to resort to federal court is first perfected," and that the statute of limitations thus commenced to run in this case in October 1977 when the FBI failed to comply with plaintiff's FOIA request within ten working days. Accord 5 U.S.C. § 552(a)(6)(C). She flatly rejected the plaintiffs argument that the statute should start to run only when all administrative appeals have been completed (almost two years later, in this case), observing that by permitting FOIA lawsuits to be filed before the administrative process has concluded, "Congress opened the door to the court house earlier" and that it is hardly unfair that "the door closes sooner" as well.

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