FOIA Update: Significant New Decisions

January 1, 1995

FOIA Update
Vol. XVI, No. 3
1995


Significant New Decisions

Public Educ. Ctr. v. DOD, 905 F. Supp. 47 (D.D.C. 1995).

In an instructive Exemption 1 decision involving an agency's obligation to create as complete a public record as possible, United States District Court Judge Charles R. Richey has held -- without an in camera review of the records -- that DOD properly withheld portions of videotapes made during the raid by U.S. armed forces in Somalia in October 1993. In its initial public declaration, DOD provided only a number representing one of six categories to justify the excisions in the tapes, explaining that the specific reasons were classified. The requester, an organization which reports on national security issues, argued that the submission was inadequate and Judge Richey ordered DOD to file a second declaration "to state on the public record the underlying reasons for nondisclosure," including a statement whether the "type of rationale" was "itself immune from public disclosure." DOD responded by providing the type of rationale for two of the six categories -- stating only that "'the substance of some information depicted on the tapes' is classified" -- but claimed the other rationales were classified. Judge Richey then directed DOD to submit an in camera declaration and, after reviewing it, he found the videotapes, as well as the rationales for their withholding, properly classified. While "sympathetic" to the requester's inability to effectively argue against the government's position because it was left in the "dark" as to DOD's reasons for nondisclosure, he concluded that "there are occasions when extensive public justification would threaten to reveal the very information for which a FOIA exemption is claimed."

Nadler v. FDIC, 899 F. Supp. 158 (S.D.N.Y. 1995).

In an Exemption 4 case raising issues involving Critical Mass and all three prongs of National Parks, United States District Court Judge Michael B. Mukasey ruled that a joint venture agreement held by a subsidiary of a failed bank taken over by the FDIC as receiver was protected from disclosure. Initially, Judge Mukasey noted that he didn't have to decide "whether Critical Mass is governing law in the Second Circuit" because the FDIC did not gain access to the agreement "voluntarily," but rather "by operation of law when it became receiver." Similarly, he found that the requirements of National Parks' impairment prong were not met since "the FDIC gains this access automatically." He did, however, find the "program effectiveness" aspect of the "other government interests" prong satisfied because disclosure "would interfere significantly with the FDIC's receivership program, which aims to maximize profits on the assets acquired from failed banks." Specifically, he declared that "[d]isclosure of sensitive business plans can only hurt the venture's prospects for financial success and, in turn, reduce returns to the FDIC." Moreover, even though the FDIC's unique dual status as agency and business submitter raised "[t]he more difficult question [of] whether 'the person from whom the information was obtained' here is within the class of persons protected," Judge Mukasey nevertheless ruled that disclosure would cause substantial competitive harm.

Spurlock v. FBI, 69 F.3d 1010 (9th Cir. 1995).

Reversing a highly aberrational district court decision, the Court of Appeals for the Ninth Circuit has ruled that in FOIA cases courts have no equitable power to order the disclosure of information once they have determined it to be statutorily exempt. The requester, who sought records regarding the FBI's investigation of him for possible obstruction of justice, alleged that the investigation had been based on information from informants that the FBI had known to be false. The district court expressly found that all the withheld material fell "well within the exemptions claimed," but nevertheless -- relying on what it identified as "statutory and inherent power" -- it ordered the FBI to examine the withheld material in light of ostensibly conflicting public statements and depositions of the individuals the requester alleged to be the FBI's informants and to disclose any "falsified" statements they might have made. Relying on Supreme Court FOIA precedents, the Ninth Circuit flatly held that "[h]aving concluded that all of the documents were exempt from disclosure under FOIA, the district court lacked statutory authority to order disclosure."

Ortiz v. HHS, 70 F.3d 729 (2d Cir. 1995).

In a novel post-Landano decision affirming the withholding of an anonymous letter in its entirety in order to protect the writer's identity, the Court of Appeals for the Second Circuit found "that the particular circumstances surrounding [that] communication give rise to an implied assurance of confidentiality" under Exemption 7(D). The anonymous letter, which contained allegations questioning the requester's eligibility for social security benefits, was sent to the Department of Health and Human Service's Office of the Inspector General and resulted in a criminal investigation. Considering the Landano factors -- "the serious nature of the allegations, the author's apparently close relationship to [the requester], the possibility of retaliation, and the author's anonymity -- and without relying solely on any one of them," the Second Circuit determined that "the author spoke under an implied assurance of confidentiality and was therefore a confidential source within the meaning of Exemption 7(D)." It concluded that it was proper to withhold the letter in its entirety because "a number of specific elements . . . could reasonably lead to discovery of the author's identity. These included the grammar, syntax and language used in the letter, its typestyle, and certain items contained in the letter that would be known to only a few people."

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