FOIA Update: Significant New Decisions

January 1, 1982

FOIA Update
Vol. III, No. 3
1982


Significant New Decisions

Greentree v. U.S. Customs Service, 674 F.2d 74 (D.C. Cir. 1982)-- 515 F. Supp. 1145 (D.D.C. 1981).

Refusing to follow the lead of two other circuits [Painter v. Federal Bureau of Investigation, 615 F.2d 689 (5th Cir. 1980), and Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979)], the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Privacy Act of 1974 is not a FOIA Exemption 3 statute.

Frank Derek Greentree, convicted of attempting to import several tons of marijuana, sought access to Customs Service records concerning his activities. The district court held that the records sought were criminal justice records exempted under Privacy Act subsection (j)(2) from the access provision of that Act and that this caused the automatic triggering of Exemption 3 of the FOIA so as to warrant nondisclosure under the FOIA as well.

In overruling this interpretation, the D.C. Circuit held that the Privacy Act is not an Exemption 3 statute and that documents withheld from a first party requester must be independently exempt from disclosure under both the Privacy Act and the FOIA. The Solicitor General has determined not to seek Supreme Court review of this issue at this time, pending its further development in the lower courts.

Grolier, Inc. v. Federal Trade Commission, 671 F.2d 553 (D.C. Cir. 1982), rehearing en banc denied, April 7, 1982.

By a two-to-one vote, a panel of the U.S. Court of Appeals for the District of Columbia Circuit limited the application of the attorney work-product privilege embodied in Exemption 5 to situations in which litigation related to that in which the records were prepared either is pending or could potentially exist.

In reaching such a novel holding, the D.C. Circuit found that three different approaches have been adopted in determining whether the work-product privilege extends after the termination of the litigation for which the records were prepared. It found that some courts have applied the privilege only to materials prepared for the suit then before them, that others have upheld perpetual protection, and that still other courts have extended work-product protection only in subsequent cases related to the original litigation.

The D.C. Circuit adopted the third approach, holding that, at least in the FOIA context, some potential for related litigation must be present to warrant protection for attorney work-product in terminated litigation. The Government's petition for rehearing en banc was denied by a 5-4 margin. The Solicitor General is considering petitioning for Supreme Court review.

Martorano v. Department of Justice, 3 GDS ¶ 82,344 (D.D.C., April 23, 1982).

In what is perhaps the first decision construing the D.C. Circuit's new standard in Grolier v. Federal Trade Commission, Judge John Lewis Smith of the District Court for the District of Columbia found the attorney work-product privilege applicable to records more than six years old where they pertained to the plaintiff's criminal conviction. The documents at issue included a memo discussing responses to defense motions, as well as the prosecutor's handwritten notes concerning the plaintiff's then-pending trial. The Department of Justice argued that although the trial was over, the potential for related litigation continued because the plaintiff, still a federal prisoner, could collaterally attack his sentence or petition for a writ of habeas corpus. The court held that "the protection of the attorney work-product privilege is still necessary" under such circumstances.

Playboy Enterprises v. Department of Justice, 3 GDS ¶ 82,313 (D.C. Cir., May 11, 1982)-- affirming in part, reversing in part 516 F. Supp. 233 (D.D.C. 1981).

The report of a Justice Department task force looking into the activities of an FBI informant cannot be withheld in its entirety under the "deliberative process" prong of Exemption 5, according to t he U.S. Court of Appeals for the District of Columbia Circuit. Playboy sought full disclosure of the report compiled in response to Congressional inquiries about the actions of Gary Thomas Rowe, an FBI informant in the Ku Klux Klan. The Government argued that the report, a synthesis of thousands of reviewed documents, reflected the "choice, weighing and analysis of facts," and was exempt in its entirety.

The D.C. Circuit held, however, that "a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material." It distinguished and did not disturb an earlier case, Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974), by noting that the report in Playboy was prepared to inform the Attorney General of certain facts which he then summarized and relayed to members of Congress, whereas in Montrose summaries of lengthy factual hearings were prepared to assist the EPA administrator in arriving at adjudicatory decisions. The D.C. Circuit concluded that disclosure of the Justice Department report, unlike the EPA summaries, would not "allow inquiry into the decision-maker's mental processes." The Solicitor General is considering further appeal.

Yeager v. Drug Enforcement Administration, 3 GDS ¶ 82,311 (D.C. Cir., May 14, 1982).

In this decision, the U.S. Court of Appeals for the District of Columbia Circuit considered the extent to which an agency is required to employ its computer capabilities to fulfill its duty to segregate and release nonexempt material under the FOIA. The plaintiff conceded that the data he sought was exempt in its existing form under various subparts of 5 U.S.C. § 552(b)(7), but he argued that the information should be "compacted" in order to be nonexempt and segregable for release. ("Compacting" is a computer programming "disclosure avoidance technique" used to reformulate computerized statistical information into a condensed form which does not permit identification of specific individuals.) The plaintiff reasoned that "compacting" is simply another method of deletion and therefore is required by the segregation provision of the FOIA.

Rejecting this argument, the D.C. Circuit declared: "We are not persuaded that Congress intended any manipulation or restructuring of the substantive content of a record when it commanded agencies to 'delete' exempt information."

Wolfe v. Department of Health & Human Services, 3 GDS ¶ 82,303 (D.D.C., May 7,1982) (appeal pending).

In a case of first impression, D.C. District Court Judge Gerhard A. Gesell ruled that the Department of Health and Human Services (HHS) transition team report is not an agency record subject to the FOIA. The decision turned on whether HHS personnel exercised "control" over the report, and Judge Gesell found that the only copies of the report located at the agency were kept in a locked bookcase of the HHS chief of staff, that the copies had not been co-mingled with official department records, and that they had never been used by any employee of HHS for any purpose except in the defense of the instant litigation. In reaching the conclusion that the report was therefore not to be regarded as an "agency record" accessible under the FOIA, Judge Gesell observed that the suggestion of the central transition team that such reports be kept segregated from agency files was not contrary to the spirit of the FOIA, but instead protected the confidentiality of advice to the President.

Government Land Bank v. General Services Administration, 671 F.2d 663 (1st Cir. 1982).

The U.S. Court of Appeals for the First Circuit in this case ruled that Exemption 5 protects realty appraisals obtained by the General Services Administration. Citing Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979), the First Circuit found that the qualified privilege for confidential commercial information under Exemption 5 applies where a document contains "sensitive information not otherwise available" if its disclosure would significantly harm the Government's commercial interests. The court concluded that realty appraisals are "prime candidates" for exemption under Merrill. This appraisal was sensitive because it was a critical factor in computing both the initial asking price and the "rock bottom" price. Therefore, pre-sale disclosure would harm the agency's commercial interests by weakening its bargaining position. In the words of the court, ". . . . FOIA should not be used to allow the Government's customers to pick the taxpayers' pockets."

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