FOIA Update: Significant New Decisions

January 1, 1997

FOIA Update
Vol. XVIII, No. 1
1997


Significant New Decisions

Frazee v. United States Forest Serv., 97 F.3d 367 (9th Cir. 1996).

Although not specifically deciding whether the Critical Mass test for protecting voluntarily submitted information would be adopted in that circuit, the Court of Appeals for the Ninth Circuit ruled that a contractor's operating plan for running the Cascade Lakes Complex of recreational facilities was a "required" submission because the Forest Service's Solicitation for Offers "specified that the selected applicants would be required" to provide such a plan. Thus, the Ninth Circuit concluded, "the Critical Mass test for volunteered information is irrelevant" because the contractor's submission of the plan "was not voluntary, but was required by the Forest Service." The case arose after the successful offeror on the contract challenged the decision of the Forest Service to release the operating plan to a "direct competitor" who was an unsuccessful offeror for the contract. In upholding the district court's disclosure determination, the Ninth Circuit also concluded that the contractor's claim that disclosure of the operating plan would cause it competitive harm was "without merit." Rejecting the contention that such harm would occur because the contractor had "expended considerable effort and cost in preparing" the plan and that disclosure "would enable a competitor to copy and improve" it, thereby putting the contractor at a "competitive disadvantage," the Ninth Circuit found that the information in the plan was, in fact, "freely or cheaply available from various sources other than the Plan itself" and therefore could not be considered "protected confidential information."

Barvick v. Cisneros, 941 F. Supp. 1015 (D. Kan. 1996).

In a decision involving federal job applicant information, United States District Court Judge G. Thomas Van Bebber held that Exemption 6 of the FOIA protects purely personal information pertaining to successful candidates and all information pertaining to unsuccessful candidates. After noting that HUD had disclosed the "educational and professional qualifications" from the resumes of the successful applicants, Judge Van Bebber ruled that it had correctly redacted such personal information as home addresses and telephone numbers, social security numbers, dates of birth, personal references, and performance appraisals. With respect to the unsuccessful applicants, he found that release of the mere fact that they had applied for a federal position and had not been selected could "lead to embarrassment or adversely affect future employment or promotion prospects" and that "redacting names, addresses, and other personal identifying information will not ensure protection of the unsuccessful applicants' identities because applicants for these positions are a select group in which many individuals know each other's background and qualifications." Concerning the public interest in disclosure, Judge Van Bebber reasoned that "[s]imply alleging that [HUD] has engaged in a pattern and practice of employment discrimination does not justify release of personal information" without a showing of how this information would "establish or eradicate discrimination in the defendant's workplace."

Maricopa Audubon Soc'y v. United States Forest Serv., No. 95-16919, 1997 WL 100941 (9th Cir. Mar. 7, 1997), and Audubon Soc'y v. United States Forest Serv., 104 F.3d 1201 (10th Cir. 1997).

In two decisions rigidly construing Exemption 2, the Courts of Appeals for the Ninth and Tenth Circuits have refused to protect maps showing the nest site locations of wildlife, holding that they do not pertain to "the internal personnel rules and practices of an agency." Although two different species were involved in these cases -- the northern goshawk in the Ninth Circuit and the Mexican spotted owl in the Tenth Circuit -- both courts concluded that permitting the Forest Service to withhold these maps under Exemption 2 was not possible under the language of the exemption.

The Forest Service argued -- and the Audubon Society did not dispute--that disclosure of the nest site information could result in harm to the birds and circumvention of the Endangered Species Act. But declaring that the phrases "internal personnel rules" and "practices of an agency" "should not be read disjunctively," the Tenth Circuit decided that "the proper inquiry is . . . whether the owl maps related to . . . 'personnel practices' of the Forest Service" and it then concluded emphatically that they did not. While not explicitly accepting this reasoning, the Ninth Circuit ruled that the wildlife maps bore "no meaningful relationship to the 'internal personnel rules and practices' of the Forest Service." The Ninth Circuit also distinguished these maps from information having "law enforcement" significance, which could be withheld under Exemption 2 if its disclosure would risk circumvention of law, declaring that it did not view this nest site information as "law enforcement material" because it "does not tell the Forest Service how to catch lawbreakers [or] tell lawbreakers how to avoid the Forest Service's enforcement efforts." Both courts expressed concern that protecting this particular information under Exemption 2 would give that exemption an "all-encompassing sweep."

In each case, the Audubon Society had offered to enter into a confidentiality agreement with the Forest Service not to disseminate the information. Although questioning whether "imposing such a condition upon the grant of a FOIA request is consistent with the purposes of the FOIA," the Tenth Circuit declined to address the issue because it was not challenged on appeal. The Ninth Circuit, however, expressly held that "once the information is disclosed to Audubon, it must also be made available to all members of the public who request it."

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