FOIA Update: Significant New Decisions

January 1, 1997

FOIA Update
Vol. XVIII, No. 2
1997


Significant New Decisions

Public Citizen, Inc. v. Department of Justice, 111 F.3d 168 (D.C. Cir. 1997).

Reversing a lower court disclosure order, the Court of Appeals for the District of Columbia Circuit ruled that documents sent to the National Archives and Records Administration by former Presidents Reagan and Bush under the "consultative provisions" of the Presidential Records Act (PRA), met the "inter-agency or intra-agency" threshold of Exemption 5, and otherwise qualified for protection under the deliberative process privilege. The district court had found that these records did not meet the threshold because former Presidents were not "agencies" and could become adversarial parties to the government under the PRA. The court of appeals disagreed, noting that "communications between an agency and outside consultants qualify as 'intra-agency' . . . if they have been 'created for the purpose of aiding the agency's deliberative process,'" and finding that under the PRA former Presidents have a statutory duty to act as consultants to the Archivist on the "management of Presidential records." It then declared that the "potential for an adversary relationship is not enough to negate one of consultation," and concluded that just because a relationship may become adversarial, which "might come to eclipse the consultative relationship," nothing had been offered "to suggest any movement in that direction."

Friends of the Coast Fork v. United States Dep't of the Interior, 110 F.3d 53 (9th Cir. 1997).

Rejecting the Department of Interior's contention that the availability of documents in a reading room is, by itself, grounds for denial of a fee waiver, the Court of Appeals for the Ninth Circuit reversed a lower court decision and granted a full fee waiver. The requesters, two Eugene, Oregon public interest environmental organizations, had been denied a fee waiver in connection with their request for access to the administrative record of the Fish and Wildlife Service's decision not to list the western pond turtle as either an endangered or threatened species under the Endangered Species Act. The court of appeals found that agency personnel had not performed the "multi-factor balancing test to assist it in evaluating the statutory standard," but instead had "hung their hats on a single factor: the availability of the requested materials in [their] Portland and Sacramento reading rooms." Holding that the organizations' plans to use the information to challenge the scientific basis of the agency's decision constituted prima facie evidence that disclosure "'is likely to contribute significantly to public understanding,'" the Ninth Circuit ruled that several factors weighed against the agency's reliance on the public reading room in its denial of the fee waiver -- the distance to travel to the reading room (100 miles), the length (2500 pages) of the record, and its complexity -- which made a meaningful review of the document impossible without a separate copy. It declined, however, to hold that the public reading room factor should never be given deference, ruling only "on the facts of this case, the public reading room rationale alone is insufficient to rebut the [requesters'] prima facie case."

Berliner, Zisser, Walter ∓ Gallegos, P.C. v. SEC, 962 F. Supp. 1348 (D. Colo. 1997).

In an unprecedented decision, United States District Court Judge Wiley Y. Daniel has held that an investment advisor company is a "financial institution" under FOIA Exemption 8, which protects matters that are "contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions." The requester sought SEC examination reports of an investment advisor company that was alleged to have committed large-scale securities fraud. Finding that "the FOIA is silent on the issue of what qualifies as a financial institution," Judge Daniel relied on the legislative history of the Sunshine Act -- a statutory scheme with a purpose common to that of the FOIA -- in which "investment advisors are explicitly named as a financial institution." He concluded that this interpretation "furthers Exemption 8's dual purposes of protecting the integrity of financial institutions and facilitating cooperation between the [SEC] and the entities regulated by it."

Chamberlain v. United States Dep't of Justice, 957 F. Supp. 292 (D.D.C. 1997).

Facing an unusually rare question of FOIA administration, United States District Court Judge Stanley Sporkin ruled that the FBI is not required to provide copies of nonexempt material where the very process of making a copy would harm the original document. The requester, who had been convicted of murdering a police officer, sought the FBI laboratory visicorder charts -- "time wave charts which display [the] change in amplitude over time" -- analyzing the audiotape produced by a recorder worn by the officer at the time of his death. Finding that the ten-year-old visicorder charts "would be damaged by exposure to light through photocopying them," Judge Sporkin ruled that the FBI's offer to "to make the visicorder charts, as well as all other original and releasable material that might be damaged by photocopying, available for review by the Plaintiff or an expert of his designation" at the FBI's Headquarters in Washington, D.C. was sufficient to "meet[] its obligation under the FOIA." He concluded by observing that the "substantial expense of reproducing the visicorder charts [-- $4800 --] as well as the possibility that [they] might be damaged if photocopied, make the Government's proposed form of disclosure even more compelling."

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