FOIA Update: Significant New Decisions

January 1, 1983

FOIA Update
Vol. IV, No. 3
1983


Significant New Decisions

Weisberg v. United States Department of Justice, 705 F.2d 1344 (D.C. Cir. 1983) -- affirming 3 GDS ¶ 82,336 (D.D.C. 1981).

In its fourth "and final" decision on Harold Weisberg's request to the FBI for "lost" scientific reports pertaining to the assassination of President John F. Kennedy, the U.S. Court of Appeals for the D.C. Circuit has reaffirmed that the adequacy of an agency's search for records requested under the FOIA is measured by a "standard of reasonableness" and is "dependent upon the circumstances of the case." Weisberg contended that the FBI had not located for release certain "spectrographic" testing records on the Kennedy assassination -- the current existence of which is in question -- because it had failed to search for them adequately. The D.C. Circuit held, however, that where an agency provides convincing evidence that it has conducted a thorough search for requested records, it need not prove under the FOIA that the records were never created or were destroyed prior to the request. Moreover, it ruled, the FBI was not required to search its Dallas Field Office for responsive records when its affidavit established that such a search would be "fruitless and unreasonable." Nor did the court of appeals accept Weisberg's claim that the FBI should be required to conduct the scientific tests in question if it could not locate the results of such tests supposedly conducted earlier; rather, it declared that the FOIA "requires an agency to do no more than disclose nonexempt documents within its possession that are retrievable by a reasonable search."

Minnis v. United States Department of Agriculture, 3 GDS ¶ 83,232 (D. Or. 1983).

In a decision which struggles against the tide of Exemption 6 case law, the U.S. District Court of the District of Oregon has refused to uphold Exemption 6 protection for the names and addresses of applicants for seasonal permits to raft down the Rogue River. The requester, the operator of a resort lodge on the Rogue River, sought the names and addresses in order to provide those interested in the river and its recreational opportunities with information concerning public accommodations, particularly his own commercial establishment. Surprisingly, the district court found the requester's admitted commercial interest in disclosure to be a "compelling" public interest which, in turn, outweighed the "minimal invasion of privacy" that it found involved. The court also regarded as significant the fact that there appeared to be "no alternative means" by which the requester could solicit this particular group of people. Although 57 percent of the applicants had specifically indicated on their permit applications that they did not want their names released for any commercial purpose, the court, without explanation, declared this fact "irrelevant" to its analysis of the privacy interests involved. The decision is expected to be appealed.

Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) -- reversing 539 F. Supp. 1320 (D.D.C. 1982).

In a sharp departure from what has been almost universally accepted by the courts -- that "trade secret" is a broad term extending from formulae to pricing and customer lists -- the U.S. Court of Appeals for the District of Columbia Circuit has adopted a more restrictive "common law" definition of that term as used in Exemption 4. At issue were the manufacturers' data reflecting clinical studies of the safety and efficacy of intraocular lenses. In refusing to uphold Exemption 4 protection for such data, the D.C. Circuit departed from two of its own prior decisions, as well as from those of most other courts, which had accepted the Restatement of Torts definition of a "trade secret" as essentially anything that gives its owner a competitive advantage. Instead, it relied on a 1925 case interpreting the term in the context of the criminal provisions of a predecessor statute to the Trade Secrets Act.

The D.C. Circuit's new narrow definition of "trade secret" -- which it emphasized would be applicable only under Exemption 4 -- covers only a "secret, commercially valuable plan, formula, process or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." The court of appeals concluded that this definition more closely reflects the language and legislative intent of the FOIA because it "incorporates a direct relationship between the information at issue and the productive process." The case was remanded for consideration of the applicability of the second part of Exemption 4. The Solicitor General has determined not to seek further review.

Diamond v. FBI, 707 F.2d 75 (2d Cir. 1983) -- affirming 3 GDS ¶ 83,183 (S.D.N.Y. 1982) and 532 F. Supp. 216 (S.D.N.Y. 1981).

In a case in which historian Sigmund Diamond sought records pertaining to government surveillance of academicians during the McCarthy era, the U.S. Court of Appeals for the Second Circuit has ruled that the age of a record does not limit the government's ability to withhold it pursuant to Exemptions 7(C) and 7(D). Diamond argued -- on the basis of a brief remark in the legislative history of the 1974 amendments encouraging the Justice Department to continue a practice of waiving exemptions for historical law enforcement information more than 15 years old -- that Congress had intended to impose a 15-year limitation period on the use of FOIA exemptions. The Second Circuit, conclusively rejected this contention, however, holding that the remark itself implicitly recognized the "discretion vested in the Justice Department to depart from" that practice. Observing that "[f]or persons who were subjects of FBI investigations or who cooperated with the agency, the potential for embarrassment, harassment, or other repercussions remains acute," the court of appeals concluded that the proper balance was struck in determining that the privacy interests of such individuals were not overcome by either scholarly interest in the McCarthy era or the age of the records.

The Second Circuit also rejected Diamond's argument that an agency must show specifically an express or implied assurance of confidentiality for each source for which Exemption 7(D) is invoked. Rather, it approved a "functional approach," noting "the practical difficulty -- if not impossibility -- of justifying each use of the confidential source exemption by way of an affidavit on personal knowledge."

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