FOIA Update: Significant New Decisions

FOIA Update
Vol. IV, No. 4
1983

Porter v. Department of Justice, 717 F.2d 787 (3d Cir. 1983) -- reversing 551 F. Supp. 595 (E.D. Pa. 1982); Provenzano v. Department of Justice, 717 F.2d 799 (3d Cir. 1983) -- 3 GDS ¶ 83,125 (D.N.J. 1982).

In these companion cases, the U.S. Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that subsection (j)(2) of the Privacy Act does not qualify as a nondisclosure statute under FOIA Exemption 3. The Department of Justice argued that because subsection (d) of the Privacy Act provides specific access rights to first party requesters, Congress intended the Privacy Act to be the exclusive access mechanism for such requesters. Thus, it was argued, first party requests for records maintained in a system of records exempt from access under the Privacy Act should be inaccessible to those individuals under the FOIA as well. However, the Third Circuit refused to accept this analysis and instead held that the two acts are reconcilable by reading Privacy Act subsection (d) as a special remedy "serving to vindicate privacy interests in a special manner, while leaving standing the preexisting [FOIA] remedy providing access to information for its own sake." It also rejected as "without analysis" the holdings of the Fifth and Seventh Circuits that first party access is limited to records available under the Privacy Act. (The Seventh Circuit has another opportunity to address this issue in the recently argued case of Wentz v. DEA/Shapiro v. DEA, 3 GDS ¶ 82,122 (W.D. Wis. 1982) (consolidated) (appeals docketed, Nos. 82-2818/82-2819, 7th Cir.). See also FOIA Update, Spring 1983, at 3.) A petition for rehearing en banc in the Provenzano case was denied by a 6-4 vote.

Sims v. CIA, 709 F.2d 95 (D.C. Cir.), reh'g denied, Nos. 82-1945, 82-1961 (D.C. Cir. Aug. 17, 1983) -- 642 F.2d 562 (D.C. Cir. 1980).

In a case concerning the identities of researchers and institutions involved in the CIA's controversial former MKULTRA Program, a divided panel of the U.S. Court of Appeals for the D.C. Circuit has narrowed the definition of the term "intelligence source" as employed in the National Security Act of 1947, a recognized Exemption 3 statute. In an earlier decision in the same case, the D.C. Circuit had defined the term "intelligence source" in a seemingly narrow yet somewhat ambiguous way. In this decision, however, Circuit Court Judge Harry T. Edwards pointedly declared that this definition mandated an analysis of the kind of information provided by a source to determine "whether the agency could reasonably expect to obtain information of that type" absent a guarantee of confidentiality (emphasis in original). Under this ruling, Judge Edwards emphasized, the fact that a provider of intelligence information was expressly promised confidentiality, simply would not he "dispositive" of whether his identity would be protected. Sharply dissenting on this point, Circuit Judge Robert H. Bork pointed out that the indefiniteness of such a definition could lead to "pernicious results." The Solicitor General will petition for Supreme Court review.

Wolfe v. HHS, 711 F.2d 1077 (D.C. Cir. 1983) -- affirming 539 F. Supp. 276 (D.D.C. 1982).

In a further refinement of a term undefined by the FOIA, the U.S. Court of Appeals for the D.C. Circuit has ruled that reports prepared by President-elect Reagan's HHS transition team are not "agency records" subject to disclosure under the FOIA. The reports were given to the HHS Secretary-designate in late 1980 and, although ultimately stored in the office of the HHS chief-of-staff, were not used at HHS thereafter. Relying on the Supreme Court's analysis in Forsham v. Harris, 445 U.S. 169, 182 (1980), the D.C. Circuit focused on whether the reports truly had come into the "possession" of HHS and thus had been "obtained" by it as "agency records" within the scope of the FOIA. Writing for the court, Senior Circuit Judge George E. MacKinnon held that "possession" for FOIA purposes "embodies more than mere physical location" and requires some further "nexus" between an agency and a record. Although these reports were located within "the four walls of the agency" and even "related to" its business, they retained their "private character" because they "never entered the Department's files and/or resources." Moreover, he held that the reports also never came within HHS's "control" because they were not integrated into the agency's record system and no one in the agency ever read or relied upon them, even though HHS personnel certainly had the right to do so.

Arieff v. Department of the Navy, 712 F.2d 1462 (D.C. Cir. 1983) -- 3 GDS ¶ 82,291 (D.D.C. 1982).

A unanimous panel of the U.S. Court of Appeals for the D.C. Circuit has ordered release of the types and amounts of prescription drugs supplied to Members of Congress through its Office of the Attending Physician (OAP), unless on remand it can be established definitively, that such a release would reveal "the medical condition of a particular individual." A journalist had sought access to a computer list of drugs supplied to the OAP by the Navy over the past six years, arguing that there is a public interest in knowing the full details of all drugs prescribed in that manner. The district court had held that disclosure of even the fact that a certain drug was prescribed could, in full context, enable the public to discern the identities of prescription recipients. Finding such a conclusion just too "fanciful to assume," however, the D.C. Circuit reversed, holding that the "mere possibility" of such an invasion of privacy, particularly in the context of documents that do not "disclose information attributable to an individual" is simply insufficient to support an Exemption 6 claim. On a collateral procedural issue, the court of appeals also held that participation by a FOIA plaintiff's representative in an in camera proceeding is inappropriate even in a non-national security context.

Paisley v. CIA, 712 F.2d 686 (D.C. Cir. 1983).

In a decision encompassing a variety of FOIA issues, the U.S. Court of Appeals for the D.C. Circuit has declined to hold that documents created as part of a Congressional investigation into the mysterious death of a former CIA official are "Congressional records" or that the Speech or Debate Clause of the Constitution bars their release. The documents at issue included several created by a Congressional committee and "transferred" to the CIA, as well as several closely related CIA records. As to the former records, the D.C. Circuit found that nothing in the circumstances of their creation or their transfer provided "the requisite express indication of a Congressional intent to maintain exclusive control over" them. In the absence of any "contemporaneous" reservation of control of those documents by Congress, the court of appeals declared them, and also the related CIA-prepared documents, to be "agency records" under the FOIA. Similarly, although such an argument was not advanced by the government, the court declared the Speech or Debate Clause to be "inapposite." The case was remanded for the application of Exemption 5, but the Senate Intelligence Committee recently sought to intervene in order to urge rehearing.

American Federation of Government Employees v. United States, 712 F.2d 931 (4th Cir. 1983).

In a major ruling respecting the privacy interests of federal employees, a divided panel of the U.S. Court of Appeals for the Fourth Circuit has held that a labor union is not entitled to the home addresses of the employees it represents. Claiming that it represented all employees of the Social Security Administration regardless of their union membership, AFGE argued that it needed the addresses for direct communication with the employees since the agency had prevented it from effective communication at the workplace. The majority, however, found a strong Exemption 6 privacy interest in protecting the addresses because "[d]isclosure could subject the employees to an unchecked barrage of mailings and perhaps personal solicitations, for no effective restraints could be placed on the range of uses to which the information, once revealed, might be put." It also found that the primary benefit from disclosure would be to the union, "rather than to the public at large," and that AFGE could achieve its purpose through means other than the FOIA.

Stern v. FBI, 3 GDS ¶ 83,202 (D.D.C. 1983).

At issue in this FOIA suit brought by NBC reporter Carl Stern were the names of three FBI employees who were censured for concealing the existence of surreptitious entries conducted by the FBI several years ago. The FBI publicly released detailed reports of its internal investigation of the employees. Senior District Court Judge William B. Bryant ordered the names disclosed, however, based upon a narrow line of authority in the D.C. Circuit, holding that Exemption 6 does not protect "information connected with a person's professional relationships, even though that information may be embarrassing." He also concluded that even if "some privacy interest" existed, it was "clearly outweighed" by the public's interest in knowing "which officials participated in the wrongdoing." Likewise, although recognizing that the identities and privacy interests of FBI personnel are usually protected under Exemption 7(C), Judge Bryant also found that exemption inapplicable. The government has filed an appeal.

J.P. Stevens & Co. v. Perry, 710 F.2d 136 (4th Cir. 1983).

The U.S. Court of Appeals for the Fourth Circuit has held records compiled in an Equal Employment Opportunity Commission investigation of employment practices to be properly withholdable "generically" under Exemption 7(A). It declared that the district court below erred in conducting an in camera document-by-document review of the records at issue, inasmuch as the EEOC had made an "adequate showing" that its Exemption 7(A) claim was proper by "carefully categoriz[ing] the documents in such a way as to give notice that their contents would interfere with an enforcement proceeding." The Fourth Circuit observed that such categories "represent the generic determinations" of NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), and found that the EEOC had amply met its burden of proof under the special evidentiary standard established by the Supreme Court for Exemption 7(A) in that case.

United States v. United States District Court, Central District of California, 717 F.2d 478 (9th Cir. 1993).

Broadly declaring that "in criminal cases the Freedom of Information Act does not extend the scope of discovery permitted under [Federal Criminal Procedure] Rule 16," the U.S. Court of Appeals for the Ninth Circuit recently issued an extraordinary writ of mandamus directing a trial court to vacate its orders mandating extensive FOIA processing and Vaughn indexing of records pertaining to entrepreneur John Z. DeLorean. (DeLorean had demanded immediate FOIA access to the records of 18 federal agencies in connection with his upcoming criminal trial.) Recognizing the tremendous burdens that such orders would place on the government in this (and potentially every other) criminal case, the Ninth Circuit held that the trial judge had "erred in ordering [such] compliance with the FOIA" and it emphasized the importance of the materiality requirement of Rule 16. In so doing, it pointedly distinguished (and limited the effect of) United States v. Brown, 562 F.2d 1144, 1151-52 (9th Cir. 1977) -- a somewhat confusing decision which held that a FOIA request made in conjunction with a Rule 16 motion should be ruled upon by the criminal trial judge -- by noting that the documents involved in Brown were furnished "without expanding the scope of Rule 16 discovery."

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