FOIA Update: Significant New Decisions

January 1, 1984

FOIA Update
Vol. V, No. 3
1984


Significant New Decisions

Bureau of National Affairs, Inc. v. Department of Justice, No. 83-1138 (D.C. Cir. Aug. 31, 1984) -- affirming 3 GDS ¶ 83,064 (D.D.C. 1982), and reversing Environmental Defense Fund v. OMB, 3 GDS ¶ 82,468 (D.D.C. 1982) (consolidated on appeal).

In an anxiously awaited major decision of wide-ranging applicability, the U.S. Court of Appeals for the D.C. Circuit held that government officials' appointment calendars, telephone message slips and daily agendas do not meet the FOIA's "agency records" jurisdictional threshold and therefore cannot be reached under the Act. Circuit Judge Abner J. Mikva, writing for a unanimous panel that included Circuit Judges Harry T. Edwards and David L. Bazelon, held that such appointment materials containing "a mix of personal and business entries," which were "created solely for an individual's convenience," and which could "be disposed of at the individual's discretion," were simply not "agency records," except for those daily agenda records which were "circulated to the staff for a business purpose." The panel squarely so held even though all of the documents "were prepared on government time, at government expense and with government materials." Judge Mikva emphasized that where a requested record has been created by a government employee, a FOIA "agency records" inquiry must focus on the purpose for which it was created and "the extent to which the creator of the document and other employees ... relied upon the document to carry out the business of the agency."

Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984) -- affirming in part, reversing in part 3 GDS ¶ 83,202 (D.D.C. 1983).

In a decision which delineates between mid- and high-level federal employees, the U.S. Court of Appeals for the D.C. Circuit held that Exemption 7(C) shields the identities of two censured FBI employees but does not protect a third censured employee who served as an FBI Special Agent-in-Charge. All three employees were administratively disciplined for misconduct in connection with a particularly sensitive FBI investigation; although all details apart from their identities were readily disclosed by the FBI, NBC newsman Carl Stern pressed to learn the names and the district court had ordered all three names disclosed. See FOIA Update, Fall 1983, at 7. The D.C. Circuit reversed as to the two lower-level employees, however, noting that "their derelictions were acts of negligence," and reasoning that the fact that disclosure would publicly link them to a widely-publicized matter "cuts on both sides of the balancing equation." On the other hand, though, it found that the identity of the senior FBI official, who had "deliberately and knowingly" participated in a "cover-up," warranted disclosure.

National Organization for Women v. Social Security Administration, 736 F.2d 727 (D.C. Cir. 1984) -- affirming on other grounds 426 F. Supp. 150 (D.D.C. 1976).

In a long-awaited, but rather disappointing decision that failed to address the substantive merits of the case, the U.S. Court of Appeals for the D.C. Circuit technically affirmed the issuance of a preliminary injunction in this longstanding "reverse" FOIA action and remanded it to the district court for further proceedings. The appeal had presented some very difficult issues regarding the meaning of the Trade Secrets Act, 18 U.S.C. § 1905, and its relation to Exemptions 3 and 4 of the FOIA; indeed, it was suspected that the difficulty of these issues was the reason that the appeal had been under consideration for more than four years. See FOIA Update, Winter 1984, at 9. However, in an oddly structured per curiam decision accompanied by two separate concurring opinions, the panel evaded these substantive questions and focused exclusively upon the case's procedural issues. Significantly, the "plurality concurrence" written by Circuit Judges Abner J. Mikva and Carl McGowan, which will govern the proceedings on remand, ruled that de novo review is "inappropriate" in such a "reverse" FOIA case. They found, in sharp disagreement with Chief Circuit Judge Spottswood W. Robinson III, that the submitter notice and objection procedures used by the agency were fully adequate. The case was remanded for review of the exemption claims raised below, so it may be some time again before a decision can be expected in this case on whether the Trade Secrets Act is congruent with Exemption 4 or qualifies as an Exemption 3 statute.

Ripskis v. HUD, No. 83-1921 (D.C. Cir. June 4, 1984) -- affirming 3 GDS ¶ 83,252 (D.D.C. 1983).

In a case concerning the appropriate privacy protection to be accorded the favorable performance evaluations of federal employees, the U.S. Court of Appeals for the D.C. Circuit held that Exemption 6 properly shields employee names and identifying information contained on the evaluation forms of HUD employees who received "outstanding" performance ratings in 1981. Plaintiff Ripskis, publisher of a HUD employee newsletter, wanted complete access to the rating forms in order to determine whether HUD's outstanding ratings were more the product of merit or favoritism. In rejecting his contention that "outstanding" employees have no substantial privacy interests in their evaluations, the D.C. Circuit noted that it was "far from certain" that even such records could contain no derogatory information. It also observed that "disclosure of even favorable information may well embarrass an individual or incite jealousy in his or her co-workers." Balanced against this, it found. was the "significant" public interest in ensuring "efficient and evenhanded personnel policies at HUD." Yet the court reasoned that "the disclosure Ripskis seeks will not necessarily bring unalloyed benefits." For example, it found, disclosure could "breed discord in the workplace" and would be "likely to chill candor in the evaluation process as well." Consequently, and upon consideration of the extensive information already disclosed to Ripskis (including all non-identifying evaluative comments, as well as a separate list of all "outstanding" rating recipients), the D.C. Circuit found that HUD had properly refused to release the evaluations and the names together.

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