FOIA Update: Significant New Decisions

January 1, 1985

FOIA Update
Vol. VI, No. 3
1985


Significant New Decisions

Abbotts v. NRC, 766 F.2d 604 (D.C. Cir. 1985).

Again emphasizing the bright-line distinction between the official confirmation of a classified item of information and similar information in the public domain, the U.S. Court of Appeals for the D.C. Circuit reversed a lower court's disclosure order of the NRC's "baseline threat levels" -- the number of attackers the security systems in nuclear facilities should be designed to defend against. It held that "although the data could be identical to [any of several estimates] in the public domain," it is unique in that it is the threat level that the NRC has in fact chosen as its official policy." The D.C. Circuit criticized as irrelevant the district court's finding that the "baseline threat levels" were "not as dangerous as other information that could have been released." Quoting Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983), it reiterated that "Exemption 1 . . . 'bars the court from prying loose from the government even the smallest bit of information that is properly classified.'"

Schanen v. Department of Justice, 762 F.2d 805 (9th Cir. 1985).

In a procedurally complex case plagued by several key mistakes by the government at the trial level, the U.S. Court of Appeals for the Ninth Circuit has taken the draconian measure of ordering the outright disclosure of an entire criminal investigatory file, including the names of confidential informants and DEA agents. The Department of Justice had initially refused to process the FOIA request of Lascelle Tillet, the plaintiff's client, contending that he was a fugitive, and therefore without rights under the FOIA. Once the case reached the U.S. District Court for the District of Alaska, the government moved to dismiss on those grounds and based also on Exemption 7(A). The plaintiff opposed this motion and included her own motion for summary judgment in the same filing. Unfortunately, the Assistant United States Attorney never responded to the plaintiff's motion for summary judgment, erroneously assuming that his previously filed motion to dismiss was sufficient. Thereafter, the government's motion to dismiss was denied, the underlying indictment against Tillet was dismissed (thereby vitiating the fugitive defense and the applicability of Exemption 7(A)), and the plaintiff's still unopposed summary judgment motion was granted. The agency's motion for reconsideration was denied on the ground that the government's neglect was "inexcusable." The district court also refused to allow the Department of Justice to assert underlying FOIA exemptions, including Exemptions 7(D) and 7(F), to protect the names of its confidential sources and DEA agents. The Ninth Circuit affirmed the denial of the reconsideration motion, holding that the district judge did not abuse his discretion, and that FOIA exemptions may not be raised for the first time after a final judgment. A petition for rehearing en banc is pending.

Professional Review Organization v. HHS, 607 F. Supp. 423 (D.D.C. 1985).

In a decision containing instructive discussions of three separate FOIA exemptions, D.C. District Court Judge Thomas F. Hogan denied a disappointed bidder's efforts to learn more about its competitor's successful bid. He upheld the applicability of Exemption 4 to many administrative details of the successful bidder's proposed operations, simply on the ground that they were "matters not normally shared with competitors." Under Exemption 5, Judge Hogan also endorsed the withholding of records containing many factual details of the agency's bid analysis process, holding that such records "necessarily reveal the deliberative process even where they may contain factual information." Finally, he held that the resumes of the bidder's proposed professional staff of were properly protectible under Exemption 6, declaring that such personal information can "give rise to a legitimate privacy concern . . . [which] should prevail against a private commercial interest such as plaintiff's bid protest."

Gaffney v. BATF, Civil No. 84-1403 (D.D.C. May 13, 1985), supplemental decision (D.D.C. June 28, 1985).

In a decision reaffirming the applicability of Exemption 7(A) to closed cases, D.C. District Court Judge Joyce Hens Green upheld the nondisclosure of an investigatory file on a requester even though the investigation of him had terminated. In this case, the BATF not only had completed its criminal investigation of the plaintiff -- he is currently serving a life sentence -- but it also had closed one of two other files containing records responsive to his FOIA request. Judge Green, however, found that information in both the closed and open files related to an ongoing investigation of plaintiff's associates and that its release would expose the agency's strategies, the focus of its investigation, and the "strengths and weaknesses of its future enforcement proceedings." However, she also found that, while Exemption 7(A) may be applied "generically" to categories of documents, it was "impossible to tell" whether release of third parties prior arrest records would interfere with enforcement proceedings. Subsequently, Judge Green held that the agency's supplemental affidavit articulated the investigatory harm that could result from disclosure of such information.

Burnside-Ott Aviation Training Center, Inc. v. United States, Civil No. 82-0105 (S.D. Fla. June 26, 1985).

The U.S. District Court for the Southern District of Florida has refused to consider affidavits submitted by a "reverse" FOIA plaintiff in its attempt to show that the records at issue must be withheld pursuant to Exemption 4. Plaintiff, the successful bidder on a Department of the Navy helicopter maintenance contract, submitted affidavits concerning the sensitivity of its technical proposal and best and final offer. The district court held that because the "standard of review" in litigation brought under the Administrative Procedure Act is whether the agency's action was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," the "scope of review" is limited to the administrative record. Accordingly, it declined to consider the contractor's newly submitted affidavits and limited its review to the "lengthy correspondence between the parties," which it found "afforded [the contractor] an opportunity to state its objections to that disclosure prior to final consideration and determination by the agency." It ultimately determined that the records, except for excisions proposed by the Navy, were not protected under Exemption 4.

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