FOIA Update: Significant New Decisions

January 1, 1982

FOIA Update
Vol. III, No. 4
1982


Significant New Decisions

Taylor v. Department of the Army, 684 F.2d 99 (D.C. Cir.1982).

The Court of Appeals for the D.C. Circuit in this case reversed a district court disclosure order, holding that Exemption 1 can properly be applied to protect a sensitive "compilation" of materials which were not necessarily classified in their component parts.

The documents sought were certain ratings of major combat units which the Army contended could in the aggregate provide insights into overall military capability. Yet its classification judgment was rejected by the district court on both substantive and procedural grounds. The D.C. Circuit reversed, however, holding that the Army's affidavits were "specific as to the nature of the information sought and the damage its disclosure would pose to the national security." While the court of appeals noted a possible conflict in applicable Army regulations, it observed that "the regulations cannot override the Executive Order, which is controlling." The court of appeals rejected plaintiff's argument that the compilation problem could be circumvented, citing its rejection of such an argument in a previous case and an Army affidavit assuring that any such attempt would be quickly detected. Significantly, the D.C. Circuit declare that such agency affidavits pertaining to classification matters are entitled to "the utmost deference" from the courts.

Skelton v. U.S. Postal Service, 678 F.2d 35 (5th Cir. 1982).

The Court of Appeals for the Fifth Circuit has provided valuable new guidance on what constitutes a "final opinion" subject to the "incorporation by reference" rule for Exemption 5 set forth by the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). The case involved letter in which a Postal Service official, based upon a investigatory report, refused Skelton's demand that four employees be disciplined. In response to Skelton's FOIA request, the agency withheld under Exemption 5 a portion of the report containing candid opinions concerning Skelton's motivation for making the demand. In court, Skelton argued that the report had no predecisional status because it was incorporated by reference in the letter, which he said was a "final opinion." The Fifth Circuit rejected Skelton argument, however, holding that not all "post-decisional" documents are "final opinions." It carefully analyzed and distinguished the Supreme Court's decision in Sears, on the grounds that neither a statute nor agency regulations required the Postal Service to consider Skelton's charges and that the matter "was thus not the adjudication of a 'case' that is at all similar to the 'case' at issue in Sears." In conclusion, the Fifth Circuit observed: "We do not think that every writing memorializing a 'decision,' no matter how insignificant or routine the 'decision' is, thereby becomes 'final opinion' subject to the incorporation by reference exception."

Arieff v. Department of the Navy, 3 GDS ¶ 82,291 (D.D.C. April 27, 1982) (appeal pending).

Adopting a "mosaic" approach for Exemption 6, the District Court for the District of Columbia has held that the Navy does not have to disclose records of the aggregate quantities of prescription drugs dispensed to Congress' Office of the Attending Physician (OAP), even where the names of recipients are not provided. The controversy focused on computer print-outs which listed all such drugs distributed without directly identifying the ultimate recipients. The court found that when coupled with a working knowledge of the symptoms and purposes for which certain drugs are prescribed, such information could "be used to learn the intimate details of the medical care of OAP patients." Relying on the "jigsaw puzzle" or "mosaic" approach adopted by the D.C. Circuit for intelligence information in Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980), the court reasoned that disclosure of the fact that a certain drug was prescribed "could be the missing link for a person with fragmented knowledge about a Member's health." Extension of the "mosaic" principle to Exemption 6 in this case is particularly significant because of the relatively large number of potential recipients involved.

Alirez v. National Labor Relations Board, 676 F.2d 423 (10th Cir. 1982).

According to the Court of Appeals for the Tenth Circuit, Exemption 7(C) may be applied to withhold in full statements obtained by the NLRB from employees in the course of an unfair labor practice investigation. The documents at issue contained allegations of employer misconduct as well it as sensitive personal information about some employees. The trial court had ruled that only the names, addresses and phone numbers of the persons mentioned could be withheld. In reversing, however, the Tenth Circuit recognized that releasing all but the identifying data would not adequately protect the privacy interests involved, especially given that the documents related to only a limited number of incidents and a relatively small number of persons. "Even sanitized, these documents would enable [the requester], and others who had specific knowledge of these incidents, to identify readily the informant and persons discussed in each document," the court of appeals concluded.

Holy Spirit Ass'n v. Federal Bureau of Investigation, 683 F.2d 562 (D.C. Cir. 1982).

The Court of Appeals for the D.C. Circuit upheld the FBI's withholding, under Exemption 7(C), of names and other identifying information communicated by citizens to federal agencies, in some cases through their elected representatives, about the Holy Spirit Association. In a noteworthy concurrence, Circuit Judge George E. MacKinnon emphasized that "particularly significant privacy interests" are at stake when individuals provide law enforcement agencies with allegations of possibly illegal activities, and that "[w]here a person's fear of reprisals from the subject of his communication is reasonable . . . privacy interests support is the application of both Exemption 6 and Exemption 7(C)." This should "apply with equal vigor" to information provided by a Congressman acting for a constituent, Judge MacKinnon reasoned. Although most such communications may not involve personal privacy interests, he found, "communications urging investigation of a third party, or disclosing intimate personal details in the hope of prompting legislative action, certainly fall within the privacy concerns protected by Exemptions 6 and 7(C)."

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