FOIA Update: Significant New Decisions

January 1, 1996

FOIA Update
Vol. XVII, No. 1
1996


Significant New Decisions

Nation Magazine v. United States Customs Serv., 71 F.3d 885 (D.C. Cir. 1995).

In a decision clarifying search and privacy issues in the context of a request for records on former presidential candidate H. Ross Perot and his reported offers to aid the Customs Service in its drug interdiction efforts, the Court of Appeals for the D.C. Circuit has ruled that both the agency's search and its "Glomar" response were improper. In response to the agency's admission that it searched only its "Privacy Act records" -- those indexed to individuals' names -- and did not search topical or "subject matter" files which might contain responsive information, the court of appeals ruled that the Customs Service must explain why its other files are unlikely to contain any pertinent information. On the merits, the Customs Service refused to confirm or deny whether any records existed under Exemption 7(C), stating that merely disclosing the fact that someone is mentioned in a law enforcement file carries a "stigmatizing connotation." In remanding for an ad hoc balancing of interests, however, the D.C. Circuit distinguished SafeCard Services v. SEC, ruling that because Mr. Perot had publicly offered to help, "records discussing offers of assistance may implicate a less substantial privacy interest than any records associating Perot with criminal activity" and disclosure might be in the public interest by reflecting "agency activity" in how the agency responded to offers of assistance.

Aguilera v. FBI, No. 94-2723 (D.D.C. Jan. 31, 1996).

Cautioning that his "decision should not be read as any indication that all criminal defendants with pending FOIA requests will be allowed to 'leap frog' to the front of the line," United States District Court Judge Emmet G. Sullivan has specified the narrow circumstances in a noncapital case in which records that may be relevant to a requester's conviction must be processed on an accelerated basis for use by the defense in pending state criminal proceedings. The requester, a diagnosed paranoid schizophrenic whose murder conviction had recently been overturned for further inquiry into his mental competency at the time of his confession, alleged that shortly before his arrest he had served as an FBI informant, but was discontinued as a result of his unreliable statements. He cited a previously released FBI document, written shortly after the murder and which described him as "highly unreliable and unstable," as evidence that the FBI might have other records casting doubt on his mental capacity at the time of the crime. The FBI estimated that it would take several more years for the request to be reached in its backlog and denied his request for expedited processing. Although finding that the FBI had satisfied the "exceptional circumstances-due diligence test" for an Open America stay of proceedings, Judge Sullivan ruled that the requester had "established an exceptional or urgent need for the information" and ordered expedited treatment because he "has demonstrated that he faces grave punishment, his reason to believe the documents may assist in his defense has been corroborated by objective proof, his request is limited in scope, and the [state's] criminal discovery process is unavailable."

Tax Analysts v. United States Dep't of Justice, No. 94-0043, 1996 WL 30593 (D.D.C. Jan. 16, 1996).

In an unprecedented decision examining a threshold FOIA issue, United States District Court Judge Gladys Kessler ruled that a certain contractor-supplied electronic database is not an "agency record." The requester, a nonprofit publisher of tax information, sought an electronically formatted copy of the Department of Justice's former electronic legal research database (JURIS) for which West Publishing Company had contracted to collect, organize, and computer-format court cases. Applying the "agency record" test articulated in United States Department of Justice v. Tax Analysts, 492 U.S. 136 (1989), Judge Kessler focused on whether the agency ever obtained control over the database in the face of provisions in the contract prohibiting it from transferring or distributing the data and providing that the information could not be used in any way once the contract was terminated. Finding the agency's "right to use, transfer and/or dispose" of the database was "greatly restricted" under this particular contract, she ruled that it was not "subject to the free disposition of the agency," and therefore was not an "agency record" subject to the FOIA.

DeLorme Publishing Co. v. NOAA, 907 F. Supp. 10 (D. Me. 1995).

In a decision rejecting the rationale of Dismukes v. Department of the Interior, United States District Court Judge D. Brock Hornby has ordered NOAA to respond to a request for its navigational charts in a "digitized data" format. The requester -- an unsuccessful bidder on a contract to assist in the agency's digitization project -- sought the digitized version of the charts to sell to the public. Acknowledging that its digitized information was an "agency record," NOAA argued that its obligations under the FOIA were satisfied by making the printed version of the charts available to all requesters, even though the agency also maintained the information in digitized form. Judge Hornby disagreed, however, asking that if the agency were willing to make the charts available in paper form, "then why not in any other format in which they also exist?" In ordering NOAA to process the digitized charts, he ruled that "[n]othing in the FOIA excuses an agency from disclosing a particular record because it has disclosed the content elsewhere in a different format." After deciding this threshold issue, Judge Hornby did not order disclosure, but instead deferred his decision on any exemption applicable to the digitized data.

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