FOIA Update: Significant New Decisions

January 1, 1985

FOIA Update
Vol. VI, No. 2
1985


Significant New Decisions

Sharyland Water Supply Corp. v. Block, 755 F.2d 397 (5th Cir.), cert. denied, 53 U.S.L.W. 3852 (U.S. June 3, 1985) (No. 84-1694).

In a "reverse" FOIA suit brought by a water supply corporation trying to protect internal audit reports submitted by it in application for a Farmers Home Administration loan, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's refusal to enjoin disclosure, holding that the reports were neither "confidential" nor "privileged" under Exemption 4. The court of appeals found no reason to "fault the district court for giving little weight" to the "speculative testimony" offered by the corporation as to the harms it could suffer if the reports were disclosed, particularly in light of a state law that required disclosure of such reports to the corporation's 5,200 shareholders. Indeed, it saw "no reason to hold erroneous a conclusion that what five thousand people may obtain without even a pledge of nondisclosure is not confidential." Additionally, the Fifth Circuit flatly declined to hold that the FOIA embodies a "lender-borrower" privilege, despite specific mention of such a privilege in the legislative history of Exemption 4, concluding instead that that term in Exemption 4 refers only to privileges created by the Constitution, statute, or common law, none of which yet recognizes a "lender-borrower" privilege.

Hemenway v. Hughes, 601 F. Supp. 1002 (D.D.C. 1985).

Adding to the categories of personal information protectible under Exemption 6, U.S. District Court Judge Joyce Hens Green has ruled that the Department of State can properly withhold citizenship information on international correspondents accredited to attend State Department briefings. On a threshold procedural issue, Judge Green first rejected the State Department's position that the requester's admittedly "ambiguous" request was insufficient to encompass such data because it had specified "a list," a form in which the data was not maintained. Rather, she held, "[b]ecause the defendants had reasonably clear notice of what the plaintiff sought, the defendants had an obligation to [process as responsive documents] any files containing citizenship information that they had. . . ."

As to the disclosability of such information, however, Judge Green observed that "[a]n individual's citizenship . . . is not a matter that is normally exposed to public view" and that "it is not inconceivable that revelation of one's citizenship could place an individual in jeopardy." She therefore concluded that the State Department's document processing had struck "the proper balance" under the circumstances involved, particularly as it had provided the requester with sufficient information to "call any of the correspondents directly" to determine whether he or she could safety "volunteer release of this information."

Ely v. United States Postal Service, 753 F.2d 163 (D.C. Cir.), cert. denied, 105 S. Ct. 2338 (1985).

In an action brought by David Ely, a federal prisoner and frequent FOIA litigant, the U.S. Court of Appeals for the D.C. Circuit has squarely rejected the argument that a requester's indigency entitles him to a waiver of FOIA search or duplication fees. Upon examination of the legislative history of the FOIA's fee waiver provision, the court of appeals found that "Congress rejected a fee waiver provision for indigents." Moreover, it held, "[t]he fee waiver provision in the Freedom of Information Act was enacted to ensure that the public would benefit from any expenditure of public funds for the disclosure of public records." (Emphasis supplied.) Because Ely relied only on his indigency and was unable to "demonstrate public benefit," the court of appeals concluded that the Postal Service had not acted arbitrarily or capriciously in denying his fee waiver request.

Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979 (1st Cir. 1985).

In a decision which serves as a sharp reminder to agencies of their obligation to carefully segregate and release all non-exempt portions of requested records, the U.S. Court of Appeals for the First Circuit reversed a lower court summary judgment order and remanded this case with specific instructions to reexamine certain arguably segregable information. The district court, after an in camera review of the undisclosed documents, had found the entire BATF investigative file properly withheld on the basis of Exemption 2 and various subparts of Exemption 7. However, the court of appeals, after its own in camera review focused upon fourteen paragraphs in the thirty-six page file that it thought "may be outside the exemptions and possibly disclosable." In so doing, it described the segregation duty as follows: "[W]hile we are not editors our obligation in FOIA cases is to see that the only information to be withheld from requesters is that which unequivocally falls within the exemptions of the statute." Dissenting on this point, Chief Judge Levin H. Campbell expressed his concern about the burdens of such "ultra-sharp scrutiny," where it involves "nit-picking records" in order to disclose "isolated fragments."

Hopkins v. Department of the Navy, Civil No. 84-1868 (D.D.C. Feb. 5, 1985).

In another decision on the disclosability of "mailing list" data, the U.S. District Court for the District of Columbia has ordered the Department of the Navy to release to a commercial life insurance company the names, ranks and official duty stations of servicemen stationed at Quantico, Virginia. Finding such information reflecting only the fact of an individual's military service to be "a matter of public record," District Court Judge Thomas A. Flannery held that its release involved no invasion of privacy per se and that he need not even reach the "balancing" test under Exemption 6. But even if there were some minimal invasion of privacy involved in the release of such information, Judge Flannery continued, the Navy's arguments. regarding the adverse effects of receiving unsolicited mail lacked the weight necessary to tip the balance in favor of nondisclosure. In this regard, he noted that the Navy had severely compromised its position by its "routine release of information similar or identical to that sought by [the requester]&quot" to the Navy Times and to the Reagan-Bush Campaign Committee. The Solicitor General has determined not to appeal.

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