Freedom of Information Act Guide, May 2004
Discretionary Disclosure and Waiver
The Freedom of Information Act is an information disclosure statute which,
through its exemption structure, strikes a balance between information disclosure
and nondisclosure, (1) with an emphasis on the
"fullest responsible disclosure." (2) Inasmuch
as the FOIA's exemptions are discretionary, not mandatory,
(3) agencies may make "discretionary disclosures" of exempt information,
as a matter of their administrative discretion, where they are not otherwise
prohibited from doing so. (4)
In October 2001, a statement of governmentwide FOIA policy was is-sued by
Attorney General John Ashcroft. (5) The Ashcroft
FOIA Memorandum recognizes the continued agency practice of considering whether
to make "discretionary disclosures" of information that is exempt under the
Act, while at the same time emphasizing that agencies should do so only upon
"full and deliberate consideration" of all interests involved.
(6) It reminds agencies "to carefully consider the protection of all
[applicable] values and interests when making disclosure determinations under
the FOIA." (7)
When agencies make discretionary disclosures of exempt information upon such
"full and deliberate" consideration of all of the interests involved, in accordance
with Attorney General Ashcroft's FOIA Memorandum, (8)
they should not be held to have "waived" their ability to invoke applicable
FOIA exemptions for similar or related information in the future. In other situations,
however, various types of agency conduct and circumstances can reasonably be
held to result in exemption waiver.
As a general rule, an agency's ability to make a discretionary disclosure
of exempt information, as recognized in Attorney General Ashcroft's FOIA Memorandum,
(9) will vary according to the nature of the FOIA exemption and the
underlying interests involved. First, while the FOIA does not itself prohibit
the disclosure of any information, (10) an agency's
ability to make a discretionary disclosure of information covered by a FOIA
exemption can hinge on whether there exists any legal barrier to disclosure
of that information. Some of the FOIA's exemptions -- such as Exemption 2,
(11) and Exemption 5, (12) for example
-- protect a type of information that is not subject to any such disclosure
prohibition. Other FOIA exemptions -- most notably Exemption 3
(13) -- directly correspond to, and serve to accommodate, distinct
prohibitions on information disclosure that operate independently of the FOIA
or are given nondisclosure effect under it. Agencies are constrained from making
a discretionary FOIA disclosure of the types of information covered by the following
Exemption 1 of the FOIA protects from disclosure national security information
concerning the national defense or foreign policy, provided that it has been
properly classified in accordance with both the substantive and procedural requirements
of an existing executive order. (14) As a rule,
an agency official holding classification authority determines whether information
requires classification and then that determination is implemented under the
FOIA through the invocation of Exemption 1. (15)
Thus, if information is in fact properly classified, and therefore is exempt
from disclosure under Exemption 1, it is not appropriate for discretionary FOIA
disclosure. (See the discussion of Exemption 1, above.)
Exemption 3 of the FOIA explicitly accommodates the nondisclosure provisions
that are contained in a variety of other federal statutes.
(16) Some of these statutory nondisclosure provisions, such as those
pertaining to grand jury information (17) and
census data, (18) categorically prevent disclosure
harm and establish absolute prohibitions on agency disclosure; others leave
agencies with some discretion as to whether to disclose certain information,
but such administrative discretion generally is exercised independently of the
FOIA. (19) (See the discussion of Exemption
3, above.) Therefore, agencies ordinarily do not make discretionary disclosure
under the FOIA of information that falls within the scope of Exemption 3.
Exemption 4 of the FOIA protects "trade secrets and commercial or financial
information obtained from a person [that is] privileged or confidential."
(21) For the most part, Exemption 4 protects information implicating
private commercial interests that would not ordinarily be the subject of discretionary
FOIA disclosure. (See the discussions of Exemption 4, above, and "Reverse" FOIA,
below.) Even more significantly, a specific criminal statute, the Trade Secrets
Act, (22) prohibits the unauthorized disclosure
of most (if not all) of the information falling within Exemption 4; its practical
effect is to constrain an agency's ability to make a discretionary disclosure
of Exemption 4 information, (23) absent an agency
regulation (based upon a federal statute) that expressly authorizes disclosure.
(24) (See the discussion of this point under "Reverse" FOIA, below.)
Exemptions 6 and 7(C) of the FOIA protect personal privacy interests, in non-law
enforcement records (25) and law enforcement
records, (26) respectively. As with private
commercial information covered by Exemption 4, the personal information protected
by Exemptions 6 and 7(C) is not the type of information ordinarily considered
appropriate for discretionary FOIA disclosure; with these exemptions, a balancing
of public interest considerations is built into the determination of whether
the information is exempt in the first place. (27)
(See the discussions of this point under Exemption 6, above, and Exemption 7(C),
Moreover, the personal information covered by Exemptions 6 and 7(C) in many
cases falls within the protective coverage of the Privacy Act of 1974,
(28) which mandates that any such information concerning U.S. citizens
and permanent-resident aliens that is maintained in a "system of records"
(29) not be disclosed unless that disclosure is permitted under one
of the specific exceptions to the Privacy Act's general disclosure prohibition.
(30) Inasmuch as the FOIA-disclosure exception in the Privacy Act
permits only those disclosures that are "required" under the FOIA,
(31) the making of discretionary FOIA disclosures of personal information
is fundamentally incompatible with the Privacy Act and, in many instances, is
prohibited by it. (32)
With the exception of information that is subject to the disclosure prohibitions
accommodated by the above FOIA exemptions, agencies may make discretionary disclosures
of any information that is exempt under the FOIA. A prime example is the type
of administrative information that can fall within the "low 2" aspect of Exemption
2, which is uniquely designed to shield agencies from sheer administrative burden
rather than from any substantive disclosure harm. (See the discussion of Exemption
2, above.) In many instances, especially when the information in question is
a portion of a document page not otherwise exempt in its entirety, such information
is more efficiently released than withheld. (33)
Perhaps the most common examples of information that an agency might disclose
as a matter of administrative discretion can be found under Exemption 5, which
incorporates discovery privileges that almost always protect only the institutional
interests of the agency possessing the information. (See the discussion of Exemption
5, above.) Information that otherwise could be withheld under the deliberative
process privilege to protect an agency deliberative process might be disclosed
with the passage of time, for example. (34)
Some litigation-related records that otherwise might routinely be withheld under
Exemption 5's attorney work-product privilege can be discretionarily disclosed
if the agency determines that it is appropriate to do so, as this privilege
broadly covers practically all information prepared in connection with litigation
without any temporal limitation whatsoever. (See the discussion of Exemption
5, Attorney Work-Product Privilege, above.) This is theoretically possible even
for information covered by the attorney-client privilege of Exemption 5 as well,
but all agencies should be careful to heed the fundamental importance of "these
privileges and the sound policies underlying them." (35)
The potential held by other FOIA exemptions for discretionary disclosure necessarily
varies from exemption to exemption -- but in all cases agencies should remember
that any such action should be taken, as stated in Attorney General Ashcroft's
FOIA Memorandum, "only after full and deliberate consideration of the institutional,
commercial, and personal privacy interests that could be implicated by disclosure
of the information." (36)
For purposes of any discretionary disclosure that an agency considers, it
also may be remembered that the FOIA requires agencies to focus on individual
portions of records in connection with the applicability of all exemptions of
the Act and to disclose all individual, "reasonably segregable" record portions
that are not covered by an exemption. (37) (See
the discussions of this issue under Procedural Requirements, "Reasonably Segregable"
Obligation, above, and Litigation Considerations, "Reasonably Segregable" Requirements,
below.) The satisfaction of this important statutory requirement sometimes involves
an onerous delineation process, one that can lend itself to the making of discretionary
disclosures, particularly at the margins of FOIA exemption applicability.
When an agency considers making a discretionary disclosure of exempt information
under the FOIA, it may do so without undue concern that in exercising its administrative
discretion with respect to particular information it is impairing its ability
to invoke applicable FOIA exemptions for any arguably similar information in
the future. Indeed, in the leading judicial pronouncement on this point, Mobil
Oil Corp. v. EPA, (39) a FOIA requester
argued that by making a discretionary disclosure of certain records that could
have been withheld under Exemption 5 the agency had waived its right to invoke
that exemption for a group of "related" records that the requester sought.
(40) In soundly rejecting such a waiver argument, however, the Court
of Appeals for the Ninth Circuit surveyed the law of waiver under the FOIA and
found "no case . . . in which the release of certain documents waived the
exemption as to other documents. On the contrary, [courts] generally have found
that the release of certain documents waives FOIA exemptions only
for those documents released." (41)
Such a general rule of nonwaiver through discretionary disclosure is supported
by sound policy considerations, as the Ninth Circuit in Mobil
Oil discussed at some length:
In fact, this rule was presaged by the Court of Appeals for the District of
Columbia Circuit many years ago, when it observed:
As another court more recently phrased it: "A contrary rule would create an
incentive against voluntary disclosure of information."
By the same token, moreover, in cases in which discretionary disclosures are
made by agencies, courts should find that they do not constitute a basis for
awarding attorneys fees under the Act -- especially insofar as it involves no
"court-ordered" relief. (45) Agencies may make
discretionary disclosures of exempt information, at any stage of the FOIA administrative
or litigative process, without concern for such consequences either.
(46) In fact, one court had occasion to express this principle in
Agencies should be mindful, though, that these principles apply to true discretionary
disclosures made under the FOIA - which should be made available, if at all,
to anyone -- as distinguished from any "selective" disclosure made more narrowly
outside the realm of the FOIA. (48) Such non-FOIA
disclosures can lead to more difficult waiver questions.
Sometimes, when a FOIA exemption is being invoked, a further inquiry must
be undertaken to determine whether the applicability of the exemption has been
waived through some prior disclosure, or perhaps even as the result of an express
authorization from the party or parties affected by the disclosure. Resolution
of this inquiry requires a careful analysis of the specific nature of, and circumstances
surrounding, the prior disclosure involved and may even vary according to the
particular exemption involved. (49)
There are some well-established rules for determining whether an agency has
waived its right to use FOIA exemptions with regard to requested information.
(50) As a general rule, the government may not rely on an otherwise
valid exemption to justify withholding information that officially has entered
the public domain. (51) The Court of Appeals
for the District of Columbia Circuit has adopted this rule because ordinarily
an "exemption can serve no purpose once information . . . becomes public."
(52) To have been "officially" released, however, information generally
must have been disclosed under circumstances in which an authoritative government
official allowed the information to be made public. (53)
Further, courts have consistently held that it is the FOIA plaintiff who bears
the burden of demonstrating that the withheld information has been officially
With regard to prior disclosure, courts have consistently held that the prior
public disclosure must "match" the exempt information in question, or else the
difference between the two might itself be a sufficient basis for reaching the
conclusion that no waiver has occurred. (55)
For example, if the information that already is available to the public is less
specific than that at issue, the agency still may properly invoke an exemption
to protect the more detailed information. (56)
Likewise, the fact that an agency has released to the public general information
concerning a subject does not preclude the agency from invoking an exemption
to protect the more specific information concerning that same subject.
(57) Indeed, courts have consistently "refused to find that the discretionary
disclosure of a document effectuates a waiver of other related documents."
Furthermore, general or limited public discussion of a subject by agency officials
usually does not lead to waiver with respect to specific information or records.
(59) Courts ordinarily do not penalize agency officials for sharing
information concerning government activities with the public in general terms.
Under some circumstances, though, an agency certainly can waive the applicability
of a FOIA exemption through the public discussion of information by agency official.
(61) In this context, one decision held that information that was
the subject of an "off-the-record" disclosure to the press by an agency official
cannot be protected under Exemption 1. (62)
Such waiver can occur even in a telephone conversation,
(63) though it will be limited to the information actually made public
and sometimes courts will be indulgent when presented with such facts. In one
case it was held that an agency official's oral disclosure of only the conclusion
reached in a predecisional document "does not, without more, waive the [deliberative
process] privilege." (64) In another, an agency
disclosure to a small group of nongovernmental personnel, with no copies permitted,
was held not to inhibit agency decisionmaking, so the deliberative process privilege
was not waived. (65) Nonetheless, an oral disclosure
may be treated as not so different from a written one, so indulging in one certainly
does risk a waiver result. (66)
Further, it is important to note that "[t]he fact that [a FOIA requester]
can guess which names have been deleted from the released documents does not
act as a waiver to disclosure." (67) This holds
true even when a requester has personal knowledge of the facts, such as by observing
or participating in the events detailed in government records.
(68) Generally stated, a FOIA plaintiff's personal knowledge of information
contained within a government record does not alone mean that an agency has
made (or should make) any official disclosure to the public.
It also should be noted that courts are generally sympathetic to the necessities
of effective agency functioning when confronted with an issue of waiver.
(70) For example, courts have recognized that agencies ordinarily
should be granted special latitude in matters of national security
(71) and criminal law enforcement, (72)
because of the inherent sensitivity of such activities and information. In the
law enforcement context, it has been firmly held that the mere fact that a confidential
source testifies at a trial does not waive Exemption 7(D) protection for any
source-provided information not actually revealed in public.
As a sound general rule, agencies making an official disclosure of information
outside the executive branch should be able to do so without risking waiver
of that information under circumstances in which the agency can demonstrate
a legitimate purpose for the disclosure, and is able to establish that the disclosure
was made with a restriction on further dissemination.
(74) Generally speaking, if an agency is able to establish these two
fundamental anti-waiver elements, its later claim of exemption will likely prevail.
By contrast, however, courts do
look harshly upon such prior disclosures, particularly seemingly "selective
disclosures," that result in unfairness. (76)
Indeed, in one case addressing the potential unfairness of selective disclosures,
a commercial life insurance company sought access to records maintained by the
United States Navy reflecting the name, rank, and duty locations of servicemen
stationed at Quantico Marine Corps Base. (77)
The district court, while not technically applying the doctrine of waiver, rejected
the agency's privacy arguments on the grounds that virtually the same information
-- officers' reassignment stations -- had been routinely published in the Navy
Times and that the Dep't of Defense had previously disclosed the names
and addresses of 1.4 million service members to a political campaign committee.
While "selective" disclosure does not always result in waiver, courts do often
consider the overall fairness of the prior disclosure in question. For example,
the Court of Appeals for the Fifth Circuit has held that while "selective disclosure"
is of concern "with respect to those exemptions that protect the
government's interest in non-disclosure of information . . . [that] concern
[is] not implicated when a government agency relies on exemption 6 . . . to
prevent disclosure of personal information." (79)
Courts also expect an agency to adhere to its own policies and regulations concerning
the disclosure of information contained within its records systems. Accordingly,
an agency's failure to heed its own regulations regarding circulation of internal
agency documents has been found sufficient to warrant a finding of waiver.
(80) Similarly, an agency's regulation requiring disclosure of the
information, (81) an agency's carelessness in
permitting access to certain information, (82)
and an agency's mistaken disclosure of the contents of a document
(83) all have resulted in waiver. (84)
On the other hand, and as a matter of practicality, courts have followed a
general rule that waiver is not necessarily found when an agency makes an entirely
mistaken disclosure of information.
(85) Similarly, they also have held that an agency does not waive
its use of FOIA exemptions when an agency official mistakenly promises to make
a disclosure. (86)
When an agency has been compelled to share information with Congress without
making an official disclosure of information to the public, courts have consistently
ruled that this exchange of information does not result in waiver, especially
for information relating to national security. (87)
Furthermore, disclosure in a congressional report does not waive Exemption 1
applicability if the agency itself has never publicly acknowledged the information.
(88) Most significantly, in deference to the common agency practice
of disclosing specifically requested information to a congressional committee,
(89) or to the General Accounting Office (an arm of Congress),
(90) such disclosures generally do not result in waiver. And, at least
with regard to national security information, one court has noted that the passage
of time should properly be considered in determining whether public disclosure
of national security information has resulted in waiver.
In addition, when an agency has been compelled to disclose a document under
limited and controlled conditions, such as under a protective order in an administrative
proceeding, its authority to withhold the document thereafter is not diminished.
(92) This applies as well to disclosures made in the criminal discovery
Of course, circulation of a document within
an agency does not waive an exemption. (94)
Nor does disclosure among federal
agencies, (95) or to advisory committees (even
those including members of the public). (96)
Similarly, properly controlled disclosure to state or local law enforcement
officials, (97) or to state attorneys general,
(98) does not waive FOIA exemption protection.
The one circumstance in which an agency's failure to treat information in
a responsible, appropriate fashion should not result in waiver is when the failure
is not fairly attributable to the agency -- i.e., when an agency employee has
made an unauthorized disclosure, a "leak" of information.
(100) Recognizing that a finding of waiver in such circumstances would
only lead to "exacerbation of the harm created by the leaks,"
(101) the courts have invariably refused to penalize agencies by ruling
that a waiver has occurred due to such conduct. (102)
On the other hand, "official" disclosures -- i.e., direct acknowledgments
by authoritative government officials -- may well waive an otherwise applicable
FOIA exemption. (103)
Similarly, an individual's express disclosure authorization with respect to
his own interests implicated in requested records can also result in a waiver.
(104) By the same token, it has been held that "only the individual
whose informational privacy interests are protected . . . can effect a waiver
of th[e] privacy interest when they are threatened by a FOIA request . .
. because the privacy interest at stake belongs to the individual, [and] not
the agency holding the information." (105)
Accordingly, even if an agency has previously disclosed such information, that
disclosure may not waive the individual's privacy interest in that information.
As mentioned above, the government is not required to demonstrate in a FOIA
case that it has positively determined that not a single disclosure of any withheld
information has occurred. (107) Indeed, the
burden is on the plaintiff to show that the information sought is public.
(108) As the D.C. Circuit has pointedly observed: "It is far more
efficient, and obviously fairer, to place the burden of production on the party
who claims that the information is publicly available."
(109) In another case, the D.C. Circuit reasoned that the burden of
production should fall upon the requester "because the task of proving the negative
-- that the information has not
been revealed -- might require the government to undertake an exhaustive, potentially
limitless search." (110) Thus, only upon fulfillment
of the plaintiff's burden of production, first and foremost, is it "up to the
government, if it so chooses, to rebut the plaintiff's proof [and demonstrate]
that the specific . . . [records] identified" are not publicly available."
Lastly, but quite significantly, the reach of FOIA exemption protection is
extended in certain instances -- and accordingly is not waivable -- under the
legal doctrine of pre-emption. (112) This has
arisen in cases in which a request has been made pursuant to a state access
law for state or local records that either include shared federal records or
encompass federal information. (113) The pre-emption
doctrine -- which may be explicitly recognized in a federal statutory scheme
(114) but nevertheless does not require that -- is derived from Article
VI of the United States Constitution, which provides that federal law "shall
be the supreme Law of the Land; . . . [and that] any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding."
(115) Accordingly, because federal law is supreme to "any state law,
however clearly within a State's acknowledged power . . . [the State law] which
interferes with or is contrary to federal law, must yield."
(116) While not always explicitly identifying this legal doctrine
as "preemption," courts have nonetheless applied it in the FOIA context.
(The related issue of whether an agency waives its ability to invoke an exemption
in litigation by not raising it at an early stage of the proceedings is discussed
under Litigation Considerations, Waiver of Exemptions in Litigation, below.)
1. See John Doe Agency v. John Doe Corp.,
493 U.S. 146, 153 (1989) ("Congress sought 'to reach a workable balance
between the right of the public to know and the need of the Government to
keep information in confidence'" (citing H.R. Rep. No. 1497, at 6 (1966)));
see also Favish v. NARA, 124 S. Ct. 1570, 1580 (2004) (observing
that while under the FOIA government information "belongs to citizens to
do with as they choose," this is balanced against statutory "limitations
that compete with the general interest in disclosure, and that, in appropriate
cases, can overcome it"), reh'g denied, No. 02-409, 2004 WL 108633
(U.S. May 17, 2004).
2. S. Rep. No. 89-813, at 3 (1965) (stating the FOIA's
statutory objective as that of achieving "the fullest responsible disclosure");
see also Attorney General's Memorandum on the 1986 Amendments
to the Freedom of Information Act 30 (Dec. 1987) [hereinafter Attorney
General's 1986 Amendments Memorandum] (same) (quoting Chrysler Corp.
v. Brown, 441 U.S. 281, 293 (1979)); FOIA Update, Vol. IX, No.
3, at 14 (same); cf. 5 U.S.C. Â§ 552b note (2000) (policy statement
enacted as part of the Government in the Sunshine Act specifying that it
is "the policy of the United States that the public is entitled to the fullest
practicable information regarding the decisionmaking processes of
the Federal Government") (emphasis added).
3. See Chrysler, 441 U.S. at 293 (reasoning
that the application of agency FOIA policies may require "some balancing
and accommodation," and noting that "Congress did not design the FOIA exemptions
to be mandatory bars to disclosure"); Bartholdi Cable Co. v. FCC,
114 F.3d 274, 282 (D.C. Cir. 1997) (stating that the "FOIA's exemptions
simply permit, but do not require, an agency to withhold exempted information").
4. See CNA Fin. Corp. v. Donovan, 830
F.2d 1132, 1334 n.1 (D.C. Cir. 1987) (explaining that an agency's FOIA disclosure
decision can "be grounded either in its view that none of the FOIA exemptions
applies, and thus that disclosure is mandatory, or in its belief that release
is justified in the exercise of its discretion, even though the data fall
within one or more of the statutory exemptions."); see also Chenkin
v. Dep't of the Army, No. 94-7109, slip op. at 1 (3d Cir. June 7, 1995)
(deciding that discretionary disclosure of documents during appellate litigation
process renders case moot as to those documents); FOIA Update, Vol.
VI, No. 3, at 3 ("[A]gencies generally have discretion under the Freedom
of Information Act to decide whether to invoke applicable FOIA exemptions.");
cf. FOIA Update, Vol. XIII, No. 2, at 5-6 (discussing exercise
of agency discretion in processing of requests for information maintained
in electronic form).
5. See Attorney General's Memorandum for Heads
of All Federal Departments and Agencies Regarding the Freedom of Information
Act (Oct. 12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum],
reprinted in FOIA Post (posted 10/15/01) (emphasizing the
public interest in protecting fundamental societal values, "[a]mong [which]
are safeguarding our national security, enhancing the effectiveness of our
law enforcement agencies, protecting sensitive business information and,
not least, preserving personal privacy").
6. Attorney General Ashcroft's FOIA Memorandum, reprinted
in FOIA Post (posted 10/15/01); see also FOIA Post,
"New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (adding
that much FOIA-exempt information is subject to statutory disclosure prohibitions
as well as to prudential nondisclosure considerations).
7. Attorney General Ashcroft's FOIA Memorandum, reprinted
in FOIA Post (posted 10/15/01); see also, e.g., White
House Memorandum for Heads of Executive Departments and Agencies Concerning
Safeguarding Information Related to Homeland Security (Mar. 19, 2002), reprinted
in FOIA Post (posted 3/21/02) (focusing on need to protect
sensitive homeland security-related information); FOIA Post, "FOIA
Officers Conference Held on Homeland Security" (posted 7/3/03) (noting that
though Attorney General Ashcroft's FOIA Memorandum "was developed well before
the events of September 11, 2001, its issuance highlighted the importance
of carefully considering the applicability of FOIA exemptions to information
viewed as sensitive through a post-9/11 lens"); FOIA Post, "New
Attorney General FOIA Memorandum Issued" (posted 10/15/01) (highlighting
government's "need to protect critical systems, facilities, stockpiles,
and other assets from security breaches and harm -- and in some instances
from their potential use as weapons of mass destruction in and of themselves");
accord Presidential Memorandum for Heads of Departments and Agencies
Regarding the Freedom of Information Act, 29 Weekly Comp. Pres. Doc. 1999
(Oct. 4, 1993), reprinted in FOIA Update, Vol. XIV, No. 3,
8. Attorney General Ashcroft's FOIA Memorandum, reprinted
in FOIA Post (posted 10/15/01); see also FOIA Post,
"New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (pointing
out the significance of the "discretionary disclosure" element of Attorney
General Ashcroft's FOIA Memorandum).
9. Attorney General's Memorandum for Heads of All Federal
Departments and Agencies Regarding the Freedom of Information Act (Oct.
12, 2001) [hereinafter Attorney General Ashcroft's FOIA Memorandum], reprinted
in FOIA Post (posted 10/15/01).
10. See 5 U.S.C. Â§ 552(d) (2000).
11. Id. Â§ 552(b)(2).
12. Id. Â§ 552(b)(5).
13. Id. Â§ 552(b)(3).
14. Id. Â§ 552(b)(1) (implementing Executive
Order 12,958, as amended, 68 Fed. Reg. 15,315 (Mar. 28, 2003), reprinted
in 50 U.S.C.A. Â§ 435 note (West Supp. 2003) and summarized in
FOIA Post (posted 4/11/03)).
15. See generally FOIA Update, Vol.
VI, No. 1, at 1-2.
16. See 5 U.S.C. Â§ 552(b)(3) (2000); see
also FOIA Post, "Agencies Rely on Wide Range of Exemption 3
Statutes" (posted 12/16/03).
17. See Fed. R. Crim. P. 6(e) (enacted as statute
18. See 13 U.S.C. Â§Â§ 8(b), 9(a) (2000).
19. See, e.g., Aronson v. IRS, 973 F.2d
962, 966 (1st Cir. 1992).
20. See, e.g., Association of Retired R.R.
Workers v. Railroad Retirement Bd., 830 F.2d 331, 335 (D.C. Cir. 1987)
(deciding that FOIA jurisdiction does not extend to exercise of agency disclosure
discretion within Exemption 3 statute); see also FOIA Update,
Vol. XV, No. 4, at 7 (describing firm limitation imposed on disclosure of
"tax return information" under 26 U.S.C. Â§ 6103 (2000)). But see
Palmer v. Derwinski, No. 91-197, slip op. at 3-4 (E.D. Ky. June 10,
1992) (exceptional FOIA case in which court ordered Veterans Administration
to disclose existence of certain medical records pursuant to discretionary
terms of 38 U.S.C. Â§ 7332(b) (2000)); see also, e.g., Craig
v. United States, 131 F.3d 99, 101-07 (2d Cir. 1997) (articulating factors
according to which courts make discretionary disclosure determinations for
grand jury information) (non-FOIA case).
21. 5 U.S.C. Â§ 552(b)(4).
22. 18 U.S.C. Â§ 1905 (2000).
23. See CNA Fin. Corp. v. Donovan, 830
F.2d 1132, 1144 (D.C. Cir. 1987); see also FOIA Update, Vol.
VI, No. 3, at 3 ("OIP Guidance: Discretionary Disclosure and Exemption 4").
24. See Chrysler v. Brown, 441 U.S.
281, 295-96 (1979); see, e.g., St. Mary's Hosp., Inc. v. Harris,
604 F.2d 407, 409-10 (5th Cir. 1979).
25. 5 U.S.C. Â§ 552(b)(6).
26. Id. Â§ 552(b)(7)(C).
27. See Favish v. NARA, 129 S. Ct. 1570,
1580 (2004) (holding that agency must balance privacy interests of persons
affected by disclosure against public interest in disclosure), reh'g
denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004).
28. 5 U.S.C. Â§ 552a (2000).
29. Id. Â§ 552a(a)(5).
30. Id. Â§ 552a(b)(1)-(12).
31. Id. Â§ 552a(b)(2). But see also
Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984) (holding that the exception
applies "[o]nly when the agency is faced with a FOIA request," which in
practice means that the Privacy Act disclosure prohibition "could turn on
the wholly fortuitous circumstance of whether a FOIA request for records
has been lodged"), reh'g en banc denied, No. 82-2473 (D.C. Cir. Mar.
23, 1984); FOIA Update, Vol. V, No. 3, at 2 (discussing interplay
between FOIA and Privacy Act under Bartel).
32. See DOD v. FLRA, 964 F.2d 26, 30-31
n.6 (D.C. Cir. 1992) (discussing Privacy Act's limitations on discretionary
FOIA disclosure); see also FOIA Update, Vol. V, No. 3, at
2; cf. Crumpton v. United States, 843 F. Supp. 751, 756 (D.D.C.
1994) (holding that disclosure under FOIA of personal information that is
not subject to Privacy Act creates no liability under Federal Tort Claims
Act (FTCA), due to applicability of FTCA's discretionary function exception),
aff'd on other grounds sub nom. Crumpton v. Stone, 59 F.3d
1400 (D.C. Cir. 1995).
33. See FOIA Update, Vol. V, No. 1,
at 11-12 ("FOIA Counselor: The Unique Protection of Exemption 2") (advising
agencies not to invoke exemption needlessly).
34. See FOIA Update, Vol. 1, No. 1,
at 4 (identifying "age" of document as something logically taken into account
in FOIA decisionmaking).
35. Attorney General Ashcroft's FOIA Memorandum, reprinted
in FOIA Post (posted 10/15/01).
37. 5 U.S.C. Â§ 552(b) (sentence immediately following
exemptions); see also, e.g., Trans-Pac. Policing Agreement v.
United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (holding
that district courts have affirmative duty to consider issue of segregability
sua sponte even if issue has not been specifically raised by plaintiff);
Kimberlin v. United States Dep't of Justice, 139 F.3d 944, 946, 949-51
(D.C. Cir. 1998) (holding that district court erred in approving agency's
withholding of entire documents without making specific finding on segregability);
PHE, Inc. v. Department of Justice, 983 F.2d 248, 252 (D.C. Cir.
1993) (holding that both agency and court must determine whether any nonexempt
information can be segregated from exempt information and released); Hronek
v. DEA, 16 F. Supp. 2d 1260, 1270 (D. Or. 1998) (making extensive finding
on segregability and stating that "[b]lanket explanations . . . do not meet
FOIA's requirements and do not permit the court to make the necessary findings");
Steinberg v. United States Dep't of Justice, 179 F.R.D. 357, 364
(D.D.C. 1998) (requiring agency to submit documents for in camera review
of segregability where "substantial segments of material -- several consecutive
paragraphs or pages" -- were withheld "based on assurances that the entirety
of each redaction would identify a third-party [sic] with a privacy interest");
Brooks v. IRS, No. CV-F-96-6284, 1997 U.S. Dist. LEXIS 21075, at
*4 (E.D. Cal. Nov. 17, 1997) ("The court may not simply approve the withholding
of an entire document without entering a finding on segregability.").
38. See, e.g., Army Times Publ'g Co. v.
Department of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993) (emphasizing
significance of segregation requirement in connection with deliberative
process privilege under Exemption 5); Wightman v. ATF, 755 F.2d 979,
983 (1st Cir. 1985) (finding that "detailed process of segregation" was
not unreasonable for request involving thirty-six pages).
39. 879 F.2d 698 (9th Cir. 1989).
40. Id. at 700.
41. Id. at 701; see Salisbury v.
United States, 690 F.2d 966, 971 (D.C. Cir. 1982) ("[D]isclosure of
a similar type of information in a different case does not mean that the
agency must make its disclosure in every case."); Stein v. Department
of Justice, 662 F.2d 1245, 1259 (7th Cir. 1981) (holding that exercise
of discretion should waive no right to withhold records of "similar nature");
Schiller v. NLRB, No. 87-1176, slip op. at 7 (D.D.C. July 10, 1990)
("Discretionary release of a document pertains to that document alone, regardless
of whether similar documents exist."), rev'd on other grounds, 964
F.2d 1205 (D.C. Cir. 1992); see also, e.g., United States Student
Ass'n v. CIA, 620 F. Supp. 565, 571 (D.D.C. 1985) (rejecting waiver
through prior disclosure, except as to "duplicate" information); Dow,
Lohnes & Albertson v. Presidential Comm'n on Broad. to Cuba, 624
F. Supp. 572, 578 (D.D.C. 1984) (same); cf. Silber v. United States
Dep't of Justice, No. 91-876, transcript at 18 (D.D.C. Aug. 13, 1992)
(bench order) (reasoning that no waiver would be found even if it were to
be established that other comparable documents had been disclosed).
42. 879 F.2d at 701; see also Army Times,
998 F.2d at 1068 (articulating general principle of no waiver of exemption
simply because agency released "information similar to that requested" in
past); Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) ("The government
is not estopped from concluding in one case that disclosure is permissible
while in another case it is not.").
43. Nationwide Bldg. Maintenance, Inc. v. Sampson,
559 F.2d 704, 712 n.34 (D.C. Cir. 1977).
44. Mehl v. EPA, 797 F. Supp. 43, 47 (D.D.C.
1992); see also Military Audit Project v. Casey, 656 F.2d
724, 754 (D.C. Cir. 1981) (reasoning that an agency should not be penalized
for declassifying and releasing documents during litigation; otherwise,
there would be "a disincentive for an agency to reappraise its position
and, when appropriate, release documents previously withheld"); Greenberg
v. United States Dep't of Treasury, 10 F. Supp. 2d 3, 23-24 (D.D.C.
1998) ("Penalizing agencies by holding that they waive their exhaustion
defense if they make a discretionary document release after the time for
an administrative appeal had expired would not advance the underlying purpose
of the FOIA -- the broadest possible responsible disclosure of government
documents."); Shewchun v. INS, No. 95-1920, slip op. at 8 (D.D.C.
Dec. 10, 1995) (to find agency bad faith after agency conducted new search
and released more information "would create a disincentive for agencies
to conduct reviews of their initial searches"), summary affirmance granted,
No. 97-5044, 1997 WL 404711 (D.C. Cir. June 5, 1997); Berg v. United
States Dep't of Energy, No. 94-0488, slip op. at 8 (D.D.C. Nov. 7, 1994)
(stating that release of information after initial search does not prove
inadequacy of search and that to hold otherwise would end "laudable agency
practice of updating and reconsidering the release of information after
the completion of the initial FOIA search"); Gilmore v. NSA, No.
92-3646, 1993 U.S. Dist. LEXIS 22027, at *29 (N.D. Cal. May 3, 1993) (following
Military Audit and declining to penalize agency), aff'd on other
grounds, 76 F.3d 386 (9th Cir. 1995) (unpublished table decision); Stone
v. FBI, 727 F. Supp. 662, 666 (D.D.C. 1990) (reasoning that agencies
should be free to make "voluntary" disclosures without concern that they
"could come back to haunt" them in other cases); cf. Pub. Citizen
v. Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993) (holding that agency
should not be required to disclose "related materials" where "to do so would
give the Government a strong disincentive ever to provide its citizenry
with briefings of any kind on sensitive topics"). But see Billington
v. United States Dep't of Justice, 11 F. Supp. 2d 45, 59 (D.D.C. 1998)
(citing Bonner v. Dep't of State, 928 F.2d 1148, 1151 (D.C. Cir.
1991), for proposition that "[w]hile a full release of documents previously
withheld does not demonstrate bad faith, doubt may be cast on the agency's
original exemption claim when the information in question is found releasable
within two years" and that a district court in such a case must accordingly
"examine closely the initial exemption claims"), summary judgment granted
in pertinent part, 69 F. Supp. 2d 128, 135 (D.D.C. 1999), aff'd in
part, vacated in part & remanded all on other grounds, 233 F.3d
581 (D.C. Cir. 2000).
45. Oil, Chem. & Atomic Workers Int'l Union,
AFL-CIO v. Dep't of Energy, 288 F.3d 452, 454-55 (D.C. Cir. 2002) (applying
recent Supreme Court precedent, Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001),
to hold that "for plaintiffs in FOIA actions to become eligible for an award
of attorney's fees, they must have 'been awarded some relief by [a] court'");
see also Lovell v. Alderete, 630 F.2d 428, 432 & n.4 (5th
Cir. 1980) (alternative holding) ("[The] Government's compliance with [plaintiff's]
request was not caused mainly by the institution of the suit, but rather
was also affected by a change in the United States Attorney General's [May
5, 1977] guidelines concerning disclosure of exempted materials."); Lissner
v. United States Customs Serv., No. 98-7438, slip op. at 7 (C.D. Cal.
Aug. 19, 1999) (refusing to award attorney fees because such an award would
punish the agency "for its disclosure of information it believed was exempt
[and would] . . . lead to the undesirable result that
agencies would simply entrench themselves in their original positions, for
fear that releasing subsequent documents would subject them to attorney
fees liability"), rev'd on other grounds, 241 F.3d 1220 (9th Cir.
2001); cf. Bubar v. FBI, 3 Gov't Disclosure Serv. (P-H) Â¶ 83,218,
at 89,930-31 (D.D.C. June 13, 1983) (declining to award attorney fees when
disclosure was caused by administrative reprocessing of request "pursuant
to newly-adopted procedures").
46. See Nationwide, 559 F.2d at 712
n.34 ("Certainly where the government can show that information disclosed
. . . was nonetheless exempt from the FOIA a plaintiff should
not be awarded attorney fees."); cf. Pub. Law Educ. Inst. v. United
States Dep't of Justice, 744 F.2d 181, 183-84 (D.C. Cir. 1984) (denying
attorney fees award when agency disclosed requested records discretionarily
in related proceeding).
47. American Commercial Barge Lines v. NLRB,
758 F.2d 1109, 1112 (6th Cir. 1985).
48. See, e.g., North Dakota ex rel. Olson
v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978) (finding waiver when agency
made "selective" disclosure to one interested party only); Comm. to Bridge
the Gap v. Department of Energy, No. 90-3568, transcript at 5 (C.D.
Cal. Oct. 11, 1991) (bench order) (finding waiver when agency gave preferential
treatment to interested party; such action is "offensive" to FOIA and "fosters
precisely the distrust of government the FOIA was intended to obviate"),
aff'd on other grounds, 10 F.3d 808 (9th Cir. 1993) (unpublished
49. See FOIA Update, Vol. IV, No. 2,
at 6; see also Mobil Oil Corp. v. EPA, 879 F.2d 698, 700 (9th
Cir. 1989) ("The inquiry into whether a specific disclosure constitutes
a waiver is fact specific."); Carson v. United States Dep't of Justice,
631 F.2d 1008, 1016 n.30 (D.C. Cir. 1980) ("[T]he extent to which prior
agency disclosure may constitute a waiver of the FOIA exemptions must depend
both on the circumstances of prior disclosure and on the particular exemptions
50. See Fitzgibbon v. CIA, 911 F.2d
755, 765 (D.C. Cir. 1990) (explaining criteria for official agency acknowledgment
of publicly disclosed information (citing Afshar v. Dep't of State,
702 F.2d 1125, 1133 (D.C. Cir. 1983))); James Madison Project v. NARA,
No. 98-2737, slip op. at 7 n.5 (D.D.C. Mar. 5, 2002) (collecting cases that
describe elements of waiver), summary affirmance granted in pertinent
part & remanded in part, No. 02-5089, 2002 WL 31296220 (D.C. Cir.
Oct. 11, 2002).
51. Students Against Genocide v. Dep't of State,
257 F.3d 828, 836 (D.C. Cir. 2001) (noting that "[f]or the public domain
doctrine to apply, the specific information sought must have already been
'disclosed and preserved in a permanent public record'" (citing Cottone
v. Reno, 193 F.3d 550, 554-55 (D.C. Cir. 1999))); Callahan v. Executive
Office for United States Attorneys, No. 98-1826, slip op. at 3 (D.D.C.
Apr. 18, 2002) (ordering release of court-filed documents on basis that
they already were in public domain).
52. Cottone, 193 F.3d at 555 (noting also that
a court "must be confident that the information sought is truly public and
that the requester receives no more than what is publicly available"). But
cf. Edmonds v. FBI, 272 F. Supp. 2d 35, 48 (D.D.C. 2003) (suggesting
that the "'fact that [national security] information resides in the public
domain does not eliminate the possibility that further disclosures can cause
harm to intelligence sources, methods and operations"' (quoting Fitzgibbon,
911 F.2d at 766)).
53. See, e.g., Myles-Pirzada v. Dep't of
the Army, No. 91-1080, slip op. at 6 (D.D.C. Nov. 20, 1992) (finding
that privilege was waived when agency official read report to requester);
see also Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999)
(ruling that disclosure made by employee from agency other than one from
which information was sought is not official and thus does not constitute
54. See, e.g., Lopez v. United States Dep't
of Justice, No. 03-5192, 2004 WL 626726, at *1 (D.C. Cir. Mar. 29, 2004)
(ruling that plaintiff failed to demonstrate that specific information is
in public domain); Pub. Citizen v. Dep't of State, 276 F.3d 634,
645 (D.C. Cir. 2002) (reaffirming that burden is on requester to establish
that specific record in public domain duplicates that being withheld (citing
Afshar, 702 F.2d at 1132)); Shores v. FBI, 185 F. Supp. 2d
77, 86-87 (D.D.C. 2002) (finding no waiver when plaintiff failed to demonstrate
that specific information had entered public domain).
55. See, e.g., Heeney v. FDA, 7 Fed.
Appx. 770, 772 (9th Cir. 2001) (concluding that "[b]ecause . . . FDA's previous
disclosures involved unrelated files . . . the information [at issue] was
properly withheld"); Nowak v. IRS, No. 98-56656, 2000 WL 60067, at
*2 (9th Cir. Jan. 21, 2000) (determining that in order for FOIA plaintiff
to establish waiver of FOIA exemption, he must be able to establish that
information in his possession originated from same documents as those released
in prior disclosure); Davis v. United States Dep't of Justice, 968
F.2d 1276, 1280 (D.C. Cir. 1992) (finding no waiver as plaintiff failed
to demonstrate that "exact portions" of records sought are in public domain);
Fitzgibbon, 911 F.2d at 766 (finding no waiver when withheld information
"pertain[s] to a time period later than the date of the publicly
documented information"); Afshar, 702 F.2d at 1132 (finding that
"withheld information is in some material respect different" from that which
requester claimed had been released previously); Hertzberg v. Veneman,
273 F. Supp. 2d 67, 81-82 (D.D.C. 2003) (holding that "selective" disclosure
of some withheld material does not waive use of exemptions to protect similar,
but undisclosed, information); Enviro Tech Int'l, Inc. v. EPA, No.
02-C-4650, slip op. at 15 (N.D. Ill. Mar. 11, 2003) (holding that agency
"summarization" disclosure of withheld information could waive use of exemptions
only for limited information contained within summary, not for all related
records); Starkey v. United States Dep't of the Interior, 238 F.
Supp. 2d 1188, 1193 (S.D. Cal. 2002) (finding waiver of exemptions for two
documents filed with, and publicly available through, local county government);
Assassination Archives & Research Ctr. v. CIA, 177 F. Supp. 2d
1, 10 (D.D.C. 2001) (holding that plaintiff had not demonstrated that information
at issue matched documents previously disclosed or released by CIA under
JFK Act), aff'd, 334 F.3d 55 (D.C. Cir. 2003); Nat'l Sec. Archive
v. CIA, No. 99-1160, slip op. at 14 (D.D.C. July 31, 2000) (reiterating
that CIA's prior release of several declassified biographies of world leaders
did not compel it to disclose whether it maintained other information on
those world leaders); Pease v. United States Dep't of Interior, No.
1:99CV113, slip op. at 7 (D. Vt. Sept. 11, 1999) (disclosing similar records
prior to enactment of Exemption 3 statute does not result in waiver of current
records covered by that statute); Kay v. FCC, 867 F. Supp. 11, 20-21
(D.D.C. 1994) (inadvertent disclosure of some informants' names does not
waive Exemption 7(A) protection for information about other informants);
cf. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1329 (D. Wyo.
Dec. 12, 2000) (finding no waiver where corporation reversed its earlier
decision to disclose materials and disputed items had not been previously
released by FAA), aff'd, 298 F.3d 1184 (10th Cir. 2002). But see
Comm. to Bridge the Gap v. Dep't of Energy, No. 90-3568, transcript
at 2-5 (C.D. Cal. Oct. 11, 1991) (bench order) (distinguishing Mobil
Oil and finding deliberative process privilege waived for draft order
by prior voluntary disclosure of earlier draft order to interested party;
agency ordered to release earlier draft order and all subsequent revisions),
aff'd on other grounds, 10 F.3d 808 (9th Cir. 1993) (unpublished
56. See Edmonds, 272 F. Supp. 2d at
49 (holding that because the withheld information is far more detailed than
that in the public domain, "its release could provide a composite picture,
or at least additional information, that would be harmful to national security");
Kelly v. CIA, No. 00-2498, slip op. at 12 (D.D.C. Aug. 8, 2002) (holding
that agency had not waived use of exemptions, because prior public disclosure
was less specific and detailed than information withheld); Heeney v.
FDA, No. 97-5461, slip op. at 19 (C.D. Cal. Mar. 16, 1999) (holding
that mere fact that withheld documents may contain information previously
released is insufficient because context in which documents were previously
released may differ from context in which documents are currently being
withheld), aff'd, 7 Fed. Appx. 770 (9th Cir. 2001); Baltimore
Sun Co. v. United States Customs Serv., No. 97-1191 (D. Md. Nov. 21,
1997) (ruling that public disclosure of "a poor quality photograph" did
not waive the agency's ability to protect a clear copy where there was greater
sensitivity in the latter); see also Cottone, 193 F.3d at
555-56 (finding waiver where plaintiff had identified specific tapes in
57. See Assassination Archives & Research
Ctr. v. CIA, 334 F.3d 55, 61 (D.C. Cir. 2003) (holding that previous
generalized disclosures did not result in waiver, because they "did not
precisely track the records sought to be released"); Coastal Delivery
Corp. v. United States Customs Serv., 272 F. Supp. 2d 958, 966 (C.D.
Cal. 2003) (rejecting the requester's waiver argument because the withheld
information was "merely the same category of information, not the exact
information" as that previously disclosed); Ctr. for Int'l Envtl. Law
v. Office of the United States Trade Representative, 237 F. Supp. 2d
17, 23 (D.D.C. 2002) (holding that public availability of "similar but not
identical information" does not lead to waiver for all information on same
58. Enviro Tech, No. 02-C-4650, slip op. at
15 (N.D. Ill. Mar. 11, 2003); see also Wood v. FBI, No. 3:02-2058,
2004 U.S. Dist. LEXIS 5525, at **31-32 (D. Conn. Mar. 31, 2004) (ruling
that agency official could not possibly have waived exemptions applicable
to memorandum that he had not even seen).
59. See, e.g., Students Against Genocide,
257 F.3d at 836 (holding that government did not waive its right to "invoke
. . . FOIA exemptions by displaying the withheld photographs to the delegates
of . . . foreign governments . . . [because they] were not released to the
general public"); Kimberlin v. Dep't of Justice, 139 F.3d 944, 949
(D.C. Cir. 1998) (holding that public acknowledgment of investigation and
"vague reference to its conclusion" does not waive use of Exemption 7(C)
to protect "details of the investigation"); Goodman v. United States
Dep't of Labor, No. 01-515, 2001 WL 34039487, at *4 (D. Or. Dec. 21,
2001) (finding no waiver, because agency official was merely describing
disputed documents, rather than releasing them); Billington v. United
States Dep't of Justice, 11 F. Supp. 2d 45, 55 (D.D.C. 1999) (finding
no waiver where requester failed to show that "exact activities" claimed
to be in public domain "have been disclosed in these documents"), aff'd
on other grounds, 233 F.3d 581 (D.C. Cir. 2000); Rothschild v. Dep't
of Energy, 6 F. Supp. 2d 38, 40-41 (D.D.C. 1998) (finding no waiver
where requester failed to specify how public discussion of particular economic
theory revealed agency deliberative process with respect to long-term, wide-ranging
study); Marriott Employees' Fed. Credit Union v. Nat'l Credit Union Admin.,
No. 96-478-A, 1996 WL 33497625, at *2 (E.D. Va. Dec. 24, 1996) (finding
no waiver because "[a]lthough the existence and general subject of the investigations
is known to the public, there is no evidence in the record indicating that
specific information concerning these investigations has been shared with
unauthorized parties"); Blazar v. OMB, No. 92-2719, slip op. at 11-12
(D.D.C. Apr. 15, 1994) (following Public Citizen and finding no waiver
of Exemptions 1 and 3 when published autobiography refers to information
sought but provides no more than general outline of it). But see
Wash. Post Co. v. United States Dep't of the Air Force, 617 F. Supp.
602, 605 (D.D.C. 1985) (disclosure of document's conclusions waived privilege
for body of document).
60. See, e.g., Pub. Citizen v. Dep't of
State, 11 F.3d 198, 201 (D.C. Cir. 1993) (finding that an "agency official
does not waive FOIA exemption 1 by publicly discussing the general subject
matter of documents which are otherwise properly exempt from disclosure");
Dow Jones & Co. v. United States Dep't of Justice, 880 F. Supp.
145, 151 (S.D.N.Y. 1995) (holding that agency's "limited, general and cursory
discussions" of investigative subject matter during press conference did
not waive Exemption 7(A)), vacated on other grounds, 907 F. Supp.
79 (S.D.N.Y. 1995); see also Military Audit Project v. Casey,
656 F.2d 724, 754 (D.C. Cir. 1981) (resisting any rule that would be "a
disincentive for an agency to reappraise its position and, when appropriate,
release documents previously withheld"); Greenberg, 10 F. Supp. 2d
at 23-24 (likewise resisting any rule that "would not advance the underlying
purpose of the FOIA -- the broadest possible responsible disclosure of government
61. See, e.g., Myles-Pirzada, No. 91-1080,
slip op. at 6 (D.D.C. Nov. 20, 1992) (finding waiver when agency official
read report to requester over telephone); Comm. to Bridge the Gap,
No. 90-3568, transcript at 3-5 (C.D. Cal. Sept. 9, 1991) (bench order) (ruling
that agency waived deliberative process privilege by voluntarily providing
draft order to interested party).
62. Lawyers Comm. for Human Rights v. INS,
721 F. Supp. 552, 569 (S.D.N.Y. 1989), motion for reargument denied,
No. 87-Civ-1115, slip op. at 1-3 (S.D.N.Y. May 23, 1990); see also
Grand Cent. P'ship v. Cuomo, 166 F.3d 473, 484 (2d Cir. 1999) (refusing
to extend Exemption 5 protection to "[a] letter [which] appear[ed] to report
matters that were aired at a public hearing").
63. See Myles-Pirzada, No. 91-1080,
slip op. at 6 (D.D.C. Nov. 20, 1992).
64. Morrison v. United States Dep't of Justice,
No. 87-3394, 1988 WL 47662, at *1 (D.D.C. Apr. 29, 1988).
65. Dow, Lohnes & Albertson v.
Presidential Comm'n on Broad. to Cuba, 624 F. Supp. 572, 577-78 (D.D.C.
1984); see also Am. Lawyer Media, Inc. v. SEC, No. 01-1967,
2002 U.S. Dist. LEXIS 16940, at *4 (D.D.C. Sept. 6, 2002) (holding that
agency did not waive right to withhold portions of training manual by permitting
requester to review manual during public training conference); Brinderson
Constructors, Inc. v. Army Corps of Eng'rs, No. 85-0905, 1986 WL 293230,
at *5 (D.D.C. June 11, 1986) (requester's participation in agency enterprise
did not entitle requester to all related documents).
66. See, e.g., Catchpole v. Dep't of Transp.,
No. 97-8058, slip op. at 5-7 (11th Cir. Feb. 25, 1998) (remanding to determine
if official read memorandum to requester over telephone, thereby waiving
privilege); Shell Oil Co. v. IRS, 772 F. Supp. 202, 211 (D. Del.
1991) (finding waiver when agency employee read aloud entire draft document
at public meeting.
67. Valencia-Lucena v. DEA, No. 99-0633, slip
op. at 7 (D.D.C. Feb. 8, 2000) (citing Weisberg v. United States Dep't
of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984)); see also LaRouche
v. United States Dep't of Justice, No. 90-2753, slip op. at 15-16 (D.D.C.
July 5, 2001) (holding that mere fact that plaintiff purported that he was
able to identify witness names from other sources did not diminish privacy
interests held); LaRouche v. United States Dep't of Justice, No.
90-2753, slip op. at 11-12 (D.D.C. Nov. 17, 2000) (finding that Exemption
7(D) protection for confidential sources who provided information was not
waived just because plaintiff could identify sources from documents disclosed
by different agency).
68. See, e.g., Rubis v. DEA, No. 01-1132,
slip op. at 7 (D.D.C. Sept. 30, 2002) (reaffirming that exemption is not
waived by fact that plaintiff might well already know identities of individuals);
Tanks v. Huff, No. 95-568, 1996 U.S. Dist. LEXIS 7266, at *10 (D.D.C.
May 28, 1996) (holding that requester's knowledge of identities of informants
who testified against him does not affect ability of agency to invoke exemption).
69. See United States Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 770 (1989) (holding
that "the identity of the requesting party has no bearing on the merits
of his or her FOIA request"); see also FOIA Update, Vol. X,
No. 2, at 3-6 ("OIP Guidance: Privacy Protection Under the Supreme Court's
Reporters Committee Decision") (advising that "a requester's particular
knowledge of the information in question or its underlying circumstances
(perhaps due to his relationship with the interested party, for example)
should not be taken into account"); accord NARA v. Favish,
124 S. Ct. 1570, 1580 (2004) (reiterating that "disclosure does not depend
on the identity of the requester," and reminding that information subject
to disclosure "belongs to all"), reh'g denied, No. 02-409, 2004 WL
108633 (U.S. May 17, 2004); see also FOIA Post, "Supreme
Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (observing
that well-known maxim under FOIA that "release to one is release to all"
was firmly reinforced by Supreme Court in its Favish decision).
70. See, e.g., Isley v. Executive Office
for United States Attorneys, No. 98-5098, 1999 WL 1021934, at *4 (D.C.
Cir. Oct. 21, 1999) (finding that witnesses' testimony at trial does not
waive the "government's right to withhold specific information about matters
as to which [the witnesses have] testified" at trial); Schiffer v. FBI,
78 F.3d 1405, 1410-11 (9th Cir. 1996) (finding no waiver of FBI's right
to invoke Exemption 7(C) for information made public during related civil
action); Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) (ruling that
individuals did not waive "strong privacy interests in government documents
containing information about them even where the information may have been
public at one time"); Cooper v. Dep't of the Navy, 558 F.2d 274,
278 (5th Cir. 1977) (finding that prior disclosure of aircraft accident
investigation report to aircraft manufacturer did not constitute waiver);
Summers v. United States Dep't of Justice, No. 98-1837, slip op.
at 15-16 (D.D.C. Apr. 13, 2004) (determining that agency did not waive applicability
of Exemption 7(C) by disclosure of third-party names from separate documents);
Hornbostel v. Dep't of the Interior, 305 F. Supp. 2d 21, 28-29 (D.D.C.
2003) (holding that defendant's failure to respond to request within statutory
time limit certainly does not waive exemptions and "has little substantive
effect"); Dayton Newspapers, Inc. v. VA, 257 F. Supp. 2d 988, 1010
(S.D. Ohio Jan. 23, 2003) (noting that modern information technology has
altered understanding of personal privacy, and observing generally that
requesters "cannot claim that private records are no longer private simply
because they are accessible through other means"); Nat'l Sec. Archive,
No. 99-1160, slip op. at 13 (D.D.C. July 31, 2001) (concluding that disclosure
of CIA-produced biographies by other agencies did not "preempt the CIA's
ability to withhold [them]"); Doolittle v. United States Dep't of Justice,
142 F. Supp. 2d 281, 286 (N.D.N.Y. 2001) (declaring that "the [g]overnment's
promise of confidentiality to an informant is intended to apply notwithstanding
the type of limited disclosure present here [a sentencing hearing]," and
finding that "such disclosure should not constitute a waiver of the [g]overnment's
promise to keep the informant's identity confidential"); McGilvra v.
Nat'l Transp. Safety Bd., 840 F. Supp. 100, 102 (D. Colo. 1993) (citing
Cooper and finding that release of cockpit voice recorder tapes to
parties in accident investigation is not "public" disclosure under FOIA);
Medera Cmty. Hosp. v. United States, No. 86-542, slip op. at 6-9
(E.D. Cal. June 28, 1988) (finding no waiver where memoranda interpreting
agency's regulations sent to state auditor involved in enforcement proceeding);
Erb v. United States Dep't of Justice, 572 F. Supp. 954, 956 (W.D.
Mich. 1983) (upholding nondisclosure under Exemption 7(A) despite "limited
disclosure" of FBI criminal investigative report to defense attorney and
71. See Ctr. for Nat'l Sec. Studies v. United
States Dep't of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) (emphasizing
need for deference to agencies in all national security-related matters),
cert. denied, 124 S. Ct. 1041 (2004); Students Against Genocide,
257 F.3d at 835 (reiterating that sharing of classified information with
foreign government does not result in waiver); Van Atta v. Def. Intelligence
Agency, No. 87-1508, 1988 WL 73856, at *2 (D.D.C. July 6, 1988) (same).
72. See Neely v. FBI, 208 F.3d 461,
466 (4th Cir. 2000) (holding that "public availability [does not] effect
a waiver of the government's right" to invoke Exemption 7(D)); Irons
v. FBI, 880 F.2d 1446, 1456-57 (1st Cir. 1989) (en banc) (finding good
public policy reasons why public testimony by confidential source should
not waive FBI's right to withhold information pursuant to Exemption 7(D));
Garcia v. United States Dep't of Justice, 181 F. Supp. 2d 356, 377
(S.D.N.Y. 2002) (finding that inadvertent disclosure of names of confidential
sources does not waive government's right to invoke Exemption 7(D)).
73. See Isley, 1999 WL 1021934, at *4
(finding that the fact that a witness testifies "only bars the government
from withholding the [witnesses'] testimony itself"); Housley v. DEA,
No. 92-16946, 1994 WL 168278, at *2 (9th Cir. May 4, 1994) (fact that some
information may have been disclosed at criminal trial does not result in
waiver as to other information); see also Jones v. FBI, 41
F.3d 238, 249 (6th Cir. 1994) (Exemption 7(D) "focuses on the source's intent,
not the world's knowledge . . . . [H]old[ing] otherwise would
discourage sources from cooperating with the FBI because of fear of revelation
via FOIA."); Davoudlarian v. Dep't of Justice, No. 93-1787, 1994
WL 423845, at *3 (4th Cir. Aug. 15, 1994) (per curiam) (requester must demonstrate
that specific witness statements were disclosed at civil trial in order
to show waiver); Parker v. Dep't of Justice, 934 F.2d 375, 379 (D.C.
Cir. 1991) (finding that "government agency is not required to disclose
the identity of a confidential source or information conveyed to the agency
in confidence in a criminal investigation notwithstanding the possibility
that the informant may have testified at a public trial"); Larouche v.
United States Dep't of Justice, No. 90-2753, slip op. at 6 (D.D.C. Aug.
8, 2002) (noting that "[a]lthough the government may not withhold information
that is in the public domain, it need not make a wholesale disclosure about
an individual just because he is a publicly acknowledged FBI source"); Daniel
v. United States Dep't of Justice, No. 99-2423, slip op. at 3-4 (D.D.C.
Mar. 30, 2001) (finding Exemption 7(D)'s protection not waived regarding
previously undisclosed information furnished by witnesses who testified
at trial under grant of immunity); Coleman v. FBI, 13 F. Supp. 2d
75, 80 (D.D.C. 1998) (finding that "an individual who testifies at trial
does not waive this privacy interest beyond the scope of the trial[;] .
. . [to] hold otherwise would discourage essential witness testimony");
cf. Reiter v. DEA, No. 96-0378, 1997 WL 470108, at *6 (D.D.C.
Aug. 13, 1997) ("An agency may . . . continue to invoke Exemption 7(D) in
the event that the requester learns of the source's identity and the information
supplied by him through the source's open court testimony."), aff'd,
No. 97-5246, 1998 WL 202247 (D.C. Cir. Apr. 27, 1998).
74. See FOIA Update, Vol. IV, No. 2,
at 6 ("The Effect of Prior Disclosure: Waiver of Exemptions"); see, e.g.,
Judicial Watch v. USPS, 297 F. Supp. 2d 252, 268 (D.D.C. 2004) (observing
that a "disclosure to a third party that promotes the client's trial strategy
and is consistent with maintaining secrecy against trial opponents does
not waive the privilege"); McSheffrey v. Executive Office for United
States Attorneys, No. 02-5239, 2003 WL 179840, at *1 (D.C. Cir. Jan.
24, 2003) (affirming that individuals who provided personal information
to prison officials during visit with inmate did not waive personal privacy
75. See Heggestad v. United States Dep't
of Justice, 182 F. Supp. 2d 1, 12-13 (D.D.C. 2000) (finding no waiver
of deliberative process or attorney work-product privileges where information
was disclosed to a congressman); see, e.g., Rashid v. HHS,
No. 98-0898, slip op. at 7 (D.D.C. Mar. 2, 2000) (disclosure of memorandum
to expert witnesses in anticipation of their testimony at trial); McGilvra,
840 F. Supp. at 102 (release of cockpit voice recorder tapes to parties
in accident investigation); Badhwar v. United States Dep't of the Air
Force, 629 F. Supp. 478, 481 (D.D.C. 1986) (disclosure to outside person
held necessary to assemble report in first place), aff'd in part &
remanded in part on other grounds, 829 F.2d 182 (D.C. Cir. 1987); see
also FOIA Update, Vol. V, No. 1, at 4 (discussing congressional
access to government records under the FOIA); cf. FOIA Update,
Vol. IV, No. 2, at 6 (cautioning that "where such a disclosure is made not
in furtherance of a legitimate governmental purpose, especially where it
is not authorized under agency regulations, courts have been particularly
unsympathetic to agencies").
76. See, e.g., North Dakota ex rel. Olson
v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978) ("selective disclosure"
of record to one party in litigation deemed "offensive" to FOIA and held
to prevent agency's subsequent invocation of Exemption 5 against other party
to litigation); Comm. to Bridge the Gap, No. 90-3568, transcript
at 3-5 (C.D. Cal. Sept. 9, 1991) (bench order) (deliberative process privilege
waived for draft order by prior voluntary disclosure of earlier draft order
to interested party; selective disclosure is "offensive" to FOIA); Nw.
Envtl. Def. Ctr. v. United States Forest Serv., No. 91-125, slip op.
at 12 (D. Or. Aug. 23, 1991) (magistrate's recommendation) (deliberative
process privilege waived as to portion of agency report discussed with "interested"
third party), adopted (D. Or. Feb. 12, 1992).
77. Hopkins v. Dep't of the Navy, No. 84-1868,
1985 WL 17673, at *1 (D.D.C. Feb. 5, 1985).
78. Id. at *3; see also In re Subpoena
Duces Tecum, 738 F.2d 1367, 1371-74 (D.C. Cir. 1984) (voluntary disclosure
by private party of information to one agency waived attorney work-product
and attorney-client privileges when same information was sought by second
agency) (non-FOIA case).
79. Sherman v. United States Dep't of the Army,
244 F.3d 357, 363-64 (5th Cir. 2001) ("only the individual whose informational
privacy interests are protected by exemption 6 can effect a waiver of those
privacy interests"); accord Attorney General's Memorandum for Heads
of All Federal Departments and Agencies Regarding the Freedom of Information
Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01)
(emphasizing the importance of protecting personal privacy).
80. Shermco Indus. v. Sec'y of the Air Force,
613 F.2d 1314, 1320 (5th Cir. 1980).
81. See Johnson v. HHS, No. 88-243-5,
slip op. at 10-11 (E.D.N.C. Feb. 7, 1989), aff'd, 905 F.2d 1530 (4th
Cir. 1990) (unpublished table decision).
82. See, e.g., Cooper v. Dep't of the Navy,
594 F.2d 484, 488 (5th Cir. 1978) (finding it "intolerable that such confidential
documents should be furnished to one side of a lawsuit and not to the other,"
but noting that even "an unauthorized filching of the document would not
in the normal course operate as a waiver of the [agency's] right to withhold
it"); Haddam v. INS, No. 99-3371, slip op. at 5 (D.D.C. Feb. 15,
2001) (holding that INS's mistaken disclosure of document protected by attorney-client
privilege to plaintiff's attorney waived that privilege for that document).
83. See, e.g., Dresser Indus. Valve Operations,
Inc. v. EEOC, 2 Gov't Disclosure Serv. (P-H) Â¶ 82,197, at 82,575
(W.D. La. Jan. 19, 1982).
84. See also Gannett River States Publ'g
Corp. v. Bureau of the Nat'l Guard, No. J91-0455-L, 1992 WL 175235,
at *6 (S.D. Miss. Mar. 2, 1992) (finding privacy interests in withholding
identities of soldiers disciplined for causing accident to be de minimis
because agency previously released much identifying information); Powell
v. United States, 584 F. Supp. 1508, 1520-21 (N.D. Cal. 1984) (suggesting
that attorney work-product privilege may be waived when agency made earlier
release of such information which "reflect[ed] positively" on agency, and
later may have withheld work-product information on same matter which did
not reflect so "positively" on agency).
85. See Ford v. West, No. 97-1342, 1998
WL 317561, at *3 (10th Cir. June 12, 1998) (rejecting claim that defendant's
inadvertent release of names constituted waiver: "[D]efendant's inadequate
redactions do not operate to waive the personal privacy interests of the
individuals discussed in the investigative file."); Garcia, 181 F.
Supp.2d at 377 (ruling that inconsistent redactions of names of confidential
sources does not waive government's ability to invoke Exemption 7(D)); Am.
Lawyer Media, 2002 U.S. Dist. LEXIS 16940, at *4 (holding that agency
did not waive right to withhold portions of training manual by permitting
plaintiff's employee to review manual during public training conference,
because plaintiff had not shown that manual is in public domain); Fort
Hall Landowners Alliance, Inc. v. Bureau of Indian Affairs, No. 99-00052,
slip op. at 13-14 (D. Idaho Mar. 17, 2000) (noting that "an agency's inadvertent
or mistaken disclosure does not necessarily constitute a waiver," and declining
to find waiver when agency recognized its error and took corrective action);
LaRouche v. United States Dep't of Justice, No. 90-2753, slip
op. at 24 (D.D.C. July 5, 2001) (holding that inadvertent disclosure of
information to another FOIA requester does not warrant disclosure of properly
exempt information); Ponder v. Reno, No. 98-3097, slip op. at 6 (D.D.C.
Jan. 22, 2001) (reaffirming principle that inadvertent disclosure does not
constitute a waiver of Exemption 7(C)); Sinito v. United Dep't of Justice,
No. 87-0814, slip op. at 29-30 (D.D.C. July 12, 2000) (finding that documents
inadvertently disclosed and briefly released to public did not "erase every
vestige" of the privacy interests at stake), summary affirmance granted,
22 Fed. Appx. 1 (D.C. Cir. 2001); Billington, 11 F. Supp. 2d at 66
(finding no waiver of Exemption 7(D) protection in case involving more than
40,000 documents where agency mistakenly released one withheld document
to previous requester, and observing: "One document in such an enormous
document request is merely a needle in a haystack. That one FBI agent may
have redacted a document differently than another, or that the same FBI
agent did not redact a document in precisely the same manner in different
years, did not constitute bad faith."); Pub. Citizen Health Research
Group v. FDA, 953 F. Supp. 400, 404-06 (D.D.C. 1996) (finding no waiver
where material accidently released and information not disseminated by requester);
Nation Magazine v. Dep't of State, 805 F. Supp. 68, 73 (D.D.C. 1992)
(dicta) ("[N]o rule of administrative law requires an agency to extend erroneous
treatment of one party to other parties, 'thereby turning an isolated error
into a uniform misapplication of the law.'" (quoting Sacred Heart Med.
Ctr. v. Sullivan, 958 F.2d 537, 548 n.24 (3d Cir. 1992))); Astley
v. Lawson, No. 89-2806, 1991 WL 7162, at *8 (D.D.C. Jan. 11, 1991) (holding
that inadvertent placement of documents into public record did not waive
exemption when it was remedied immediately upon agency's awareness of mistake);
cf. Kay, 867 F. Supp. at 23-24 (inadvertent disclosure of
documents caused entirely by clerical error has no effect on remaining material
at issue); Fleet Nat'l Bank v. Tonneson & Co., 150 F.R.D. 10,
16 (D. Mass. 1993) (inadvertent production of one volume of three-volume
report did not constitute waiver of attorney work-product privilege as to
that volume, nor as to remaining two volumes of report) (non-FOIA case);
Myers v. Williams, 819 F. Supp. 919, 921 (D. Or. 1993) (granting
preliminary injunction prohibiting FOIA requester from disclosing original
and all copies of erroneously disclosed document containing trade secrets)
86. See Hertzberg, 273 F. Supp. 2d at
82 (concluding that agency official's assurances that information would
be released did not waive Exemption 5); Anderson v. United States Dep't
of the Treasury, No. 98-1112, 1999 WL 282784, at *4 (W.D. Tenn. Mar.
24, 1999) (finding that the mere promise of an IRS agent to disclose a document
to a FOIA requester did not constitute waiver, because "[n]othing in [the]
FOIA . . . make[s] such a statement binding and irrevocable").
87. See Rockwell v. United States Dep't
of Justice, 235 F.3d 598, 604-05 (D.C. Cir. 2001) (finding no waiver
where agency secured a promise of confidentiality from congressional subcommittee);
Pub. Citizen, 11 F.3d at 201 (finding no waiver when agency official
publicly discussed only general subject matter of documents in congressional
testimony); see also Fitzgibbon, 911 F.2d at 765 (holding
that prior disclosure in a congressional report does not waive "information
pertaining to a time period later than the date of the publicly documented
information"); Edmonds, 272 F. Supp. 2d at 49 (affirming that disclosure
of classified material to congressional committee "does not deprive the
[agency] of the right to classify the information under Exemption 1" (citing
Fitzgibbon, 911 F.2d at 766)); see also Afshar, 702
F.2d at 1131-32 (finding no waiver when withheld information is in some
respect materially different); cf. Heeney, No. 97-5461, slip
op. at 19 (C.D. Cal. Mar. 16, 1999) (finding no waiver where documents at
issue contained information that previously was released in different context).
88. See Earth Pledge Found. v. CIA,
988 F. Supp. 623, 627 (S.D.N.Y. 1996), aff'd, 128 F.3d 788 (2d Cir.
1997); see also Salisbury v. United States, 690 F.2d 966,
971 (D.C. Cir. 1982) (holding that information in Senate report "cannot
be equated with disclosure by the agency itself"); Military Audit Project,
656 F.2d at 744 (finding that publication of Senate report does not constitute
official release of agency information); Students Against Genocide,
50 F. Supp. 2d at 25 (affirming principle that only agency that is original
source of information in question can waive applicability of FOIA exemption).
89. See, e.g., Rockwell, 235 F.3d at
604 (finding no waiver for documents provided to congressional oversight
subcommittee, in accordance with FOIA's specific congressional-disclosure
provision, found at 5 U.S.C. Â§ 552(d)); Fla. House of Representatives
v. United States Dep't of Commerce, 961 F.2d 941, 946 (11th Cir. 1992)
(holding no waiver of exemption due to court-ordered disclosure, involuntary
disclosure to Congress, or disclosure of related information); Aspin
v. DOD, 491 F.2d 24, 26 (D.C. Cir. 1973) (accepting that military criminal
investigation records related to the "My Lai Massacre," during the Vietnam
War, were exempt from disclosure, despite release to the Armed Services
Committees of both houses of Congress); Edmonds, 272 F. Supp. 2d
at 49 (affirming that disclosure of classified material to congressional
committee "does not deprive the [agency] of the right to classify the information
under Exemption 1" (citing 911 F.2d at 766)); Wash. Post Co. v. DOD,
No. 84-2949, 1987 U.S. Dist. LEXIS 16108, at *25 n.9 (D.D.C. Feb. 25, 1987)
("unprincipled disclosure" by Members of Congress who had signed statements
of confidentiality "cannot be the basis to compel disclosure" by agency);
see also Eagle-Picher Indus. v. United States, 11 Ct. Cl.
452, 460-61 (1987) (work-product privilege not waived in nonspecific congressional
testimony "if potentially thousands of documents need be reviewed to determine
if the gist or a significant part of documents were revealed") (non-FOIA
case); FOIA Update, Vol. V, No. 1, at 3-4 ("OIP Guidance: Congressional
Access Under FOIA") (analyzing Murphy v. Dep't of the Army, 613 F.2d
1151 (D.C. Cir. 1979), and advising that "[e]ven where a FOIA request is
made by a Member clearly acting in a completely official capacity, such
a request does not properly trigger the special access rule of subsection
([d]) unless it is made by a committee or subcommittee chairman, or otherwise
under the authority of a committee or subcommittee").
90. See, e.g., Shermco, 613 F.2d at
91. Bassiouni, 2004 U.S. Dist. LEXIS 5290,
at **14-15 (rejecting plaintiff's argument that agency waived FOIA protection
by acknowledging existence of records fourteen years earlier, and noting
that "[i]n the realm of intelligence, a lot can occur in a short period
of time and certainly more can occur in a decade").
92. See, e.g., Lead Indus. Ass'n v. OSHA,
610 F.2d 70, 79 n.13 (2d Cir. 1979); see also Allnet Communication
Servs. v. FCC, 800 F. Supp. 984, 989 (D.D.C. 1992) (no waiver where
information disclosed under "strict confidentiality"), aff'd, No.
92-5351 (D.C. Cir. May 27, 1994); Silverberg v. HHS, No. 89-2743,
1991 WL 633740, at *3 (D.D.C. June 14, 1991) (fact that individual who is
subject of drug test by particular laboratory has right of access to its
performance and testing information does not render such information publicly
available), appeal dismissed per stipulation, No. 91-5255 (D.C. Cir.
Sept. 2, 1993).
93. See, e.g., Hronek, 7 Fed. Appx.
591, 592 (9th Cir. 2001) (rejecting contention that DEA waived claimed exemptions
where documents at issue "relate[d] to documents released to [plaintiff
during] the course of his criminal conviction."); Cottone, 193 F.3d
at 556 (limiting finding of waiver to specific wiretapped recordings played
in open court and refusing to extend finding of waiver to wiretapped recordings
provided to plaintiff's counsel as Brady material); Ferguson v.
FBI, 957 F.2d 1059, 1068 (2d Cir. 1992) (fact that local police department
released records pursuant to New York Freedom of Information Law and one
of its officers testified at length in court held not to waive police department's
status as confidential source under Exemption 7(D)); Parker, 934
F.2d at 379 (affirming nondisclosure under Exemption 7(D) even though confidential
informant may have testified at requester's trial); Nat'l Ass'n of Criminal
Def. Lawyers v. United States Dep't of Justice, No. 97-372, slip op.
at 8-10 (D.D.C. July 22, 1998) (limited disclosure of draft report to defendants
pursuant to criminal discovery rules does not waive Exemption 5 protection);
Willis v. FBI, No. 96-1455, slip op. at 2-6 (D.D.C. Feb. 14, 1998)
("The mere fact that at one time the Plaintiff's counsel may have had a
right of access to portions of the transcript for a limited purpose hardly
suffices to show that all of the requested transcripts now are a part of
the public domain."), aff'd in part & remanded in part on other grounds,
194 F.3d 175 (D.C. Cir. 1999) (unpublished table decision); Fisher v.
United States Dep't of Justice, 772 F. Supp. 7, 12 (D.D.C. 1991) (even
if some of withheld information has appeared in print, nondisclosure is
proper because disclosure from official source would confirm unofficial
information and thereby cause harm to third parties); Beck v. United
States Dep't of Justice, No. 88-3433, slip op. at 2 (D.D.C. July 24,
1991) ("Exemption 7(C) is not necessarily waived where an individual has
testified at trial."), summary affirmance granted in pertinent part &
denied in part, No. 91-5292 (D.C. Cir. Nov. 19, 1992); Erb, 572
F. Supp. at 956 (nondisclosure to third party upheld under Exemption 7(A)
even though document provided to defendant through criminal discovery);
cf. Johnston v. United States Dep't of Justice, No. 97-2173,
1998 WL 518529, at **1-2 (8th Cir. Aug. 10, 1998) ("'[T]he fact that an
agent decided or was required to testify . . . does not give plaintiff a
right under FOIA to documents revealing the fact and nature of [agent's]
employment.'" (quoting Jones, 41 F.3d at 246-47)). But see
Kronberg v. United States Dep't of Justice, 875 F. Supp. 861, 867
(D.D.C. 1995) (waiver of exemption found when agency had previously released
same documents during requester's criminal trial).
94. See, e.g., Direct Response Consulting
Serv. v. IRS, No. 94-1156, 1995 WL 623282, at *5 (D.D.C. Aug. 21, 1995)
(attorney-client privilege not waived when documents sent to other divisions
within agency); Chemcentral/Grand Rapids Corp. v. EPA, No. 91-C-4380,
1992 WL 281322, at *7 (N.D. Ill. Oct. 6, 1992) (no waiver of attorney-client
privilege when documents in question were circulated to only those employees
who needed to review legal advice contained in them); Lasker-Goldman
Corp. v. GSA, 2 Gov't Disclosure Serv. (P-H) Â¶ 81,125, at 81,322
(D.D.C. Feb. 27, 1981) (no waiver when document was circulated to management
officials within agency).
95. See, e.g., Chilivis v. SEC, 673
F.2d 1205, 1211-12 (11th Cir. 1982) (agency does not automatically waive
exemption by releasing documents to other agencies); Silber v. United
States Dep't of Justice, No. 91-876, transcript at 10-18 (D.D.C. Aug.
13, 1992) (bench order) (distribution of manual to other agencies does not
constitute waiver). But cf. Lacefield v. United States, No.
92-N-1680, 1993 WL 268392, at *6 (D. Colo. Mar. 10, 1993) (attorney-client
privilege waived with respect to letter from City of Denver attorney to
Colorado Department of Safety because letter was circulated to IRS).
96. See, e.g., Aviation Consumer Action
Project v. Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976).
97. See, e.g., General Elec. Co. v. EPA,
18 F. Supp. 2d 138, 143 (D. Mass. 1998) (finding that because EPA is obligated
to consult with state agencies in formulating federal policy, disclosures
made pursuant to that obligation do not constitute waiver of applicability
of FOIA exemption); Kansi v. United States Dep't of Justice, 11 F.
Supp. 2d 42, 44-45 (D.D.C. 1998) (stating that even if plaintiff had adduced
evidence that information was actually disclosed to local prosecutor, such
disclosure would not have waived Exemption 7(A) protection); Erb,
572 F. Supp. at 956 (holding that disclosure of FBI report to local prosecutor
did not cause waiver of Exemption 7(A)); see also 6 U.S.C.A. Â§ 482
(West Supp. 2004) (section 892 of the Homeland Security Act of 2002, Pub.
L. 107-296, 116 Stat. 2135) (outlining procedures for sharing homeland security
information with state and local law enforcement agencies).
98. See Interco, Inc. v. FTC, 490 F.
Supp. 39, 44 (D.D.C. 1979).
99. See FOIA Update, Vol. IV, No. 2,
100. See, e.g., Favish, 124 S. Ct.
at 1577 (accepting that unofficial leak and subsequent publication of death-scene
photograph of body of presidential aide did not prevent agency from invoking
Exemption 7(C) to protect privacy of surviving family members); see also
FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"
(posted 4/9/04) (observing that waiver issue regarding "leaked" photograph
was quickly "dispatched" by Court "in no uncertain terms").
101. Murphy, 490 F. Supp. at 1142.
102. See, e.g., Simmons v. United States
Dep't of Justice, 796 F.2d 709, 712 (4th Cir. 1986) (unauthorized disclosure
does not constitute waiver); Medina-Hincapie v. Dep't of State, 700
F.2d 737, 742 n.20 (D.C. Cir. 1983) (official's ultra vires release does
not constitute waiver); Edmonds, 272 F. Supp. 2d at 49 (holding that
because information in public domain was leaked, agency may continue to
withhold identical information because "'release would amount to official
conformation or acknowledgment of [its] accuracy"' (quoting Wash. Post
v. DOD, 766 F. Supp. 1, 9 (D.D.C. 1991))); Trans-Pac. Policing Agreement
v. United States Customs Serv., No. 97-2188, 1998 WL 34016806, at *4
(D.D.C. May 14, 1998) (finding no waiver from "isolated and unauthorized"
disclosures that were not "in accordance with [agency] regulations or directions"),
rev'd & remanded on other grounds, 177 F.3d 1022 (D.C. Cir. 1999);
Harper v. Dep't of Justice, No. 92-462, slip op. at 19 (D. Or. Aug.
9, 1993) ("alleged, unauthorized, unofficial, partial disclosure" in private
publication does not waive Exemption 1), aff'd in part, rev'd in part
& remanded on other grounds sub nom. Harper v. DOD, 60 F.3d
833 (9th Cir. 1995) (unpublished table decision); LaRouche v. United
States Dep't of Justice, No. 90-2753, 1993 WL 388601, at *7 (D.D.C.
June 25, 1993) (fact that some aspects of grand jury proceeding were leaked
to press has "no bearing" on FOIA litigation); RTC v. Dean, 813 F.
Supp. 1426, 1429-30 (D. Ariz. 1993) (no waiver of attorney-client privilege
when agency took precautions to secure confidentiality of document, but
inexplicable leak nonetheless occurred) (non-FOIA case); Laborers' Int'l
Union v. United States Dep't of Justice, 578 F. Supp. 52, 58 n.3 (D.D.C.
1983) (finding that unauthorized disclosure of document "resembling" one
at issue does not waive invocation of exemptions), aff'd, 772 F.2d
919, 921 n.1 (D.C. Cir. 1984) (noting that disclosure would "enable the
[plaintiff] to verify whether the report in its possession is an authentic
copy"); Safeway Stores, Inc. v. FTC, 428 F. Supp. 346, 347-48 (D.D.C.
1977) (finding no waiver where congressional committee leaked report to
press); cf. Hunt v. CIA, 981 F.2d 1116, 1120 (9th Cir. 1992)
(agency not required to confirm or deny accuracy of information released
by other government agencies regarding its interest in certain individuals);
Rush v. Dep't of State, 748 F. Supp. 1548, 1556 (S.D. Fla. 1990)
(finding that author of agency documents, who had since left government
service, did not have authority to waive Exemption 5 protection). But
cf. In re Engram, No. 91-1722, 1992 WL 120211, at *5 (4th Cir.
June 2, 1992) (per curiam) (permitting discovery as to circumstances of
103. See Abbotts v. NRC, 766 F.2d 604,
607 (D.C. Cir. 1985) (holding agency's official "level of threat nuclear
facility should guard against" is not waived by prior public estimates of
appropriate level by congressional and other agency reports); Moye, O'Brien,
O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., No. 6:02-CV-126,
slip op. at 21 (M.D. Fla. Aug. 18, 2003) (ruling that agency waived deliberative
process privilege when it shared results of draft audit report with subject
of audit) (appeal pending); Starkey, 238 F. Supp. 2d at 1193 (finding
that public availability of documents filed with local government waived
exemptions); Melendez-Colon v. United States Dep't of the Navy, 56
F. Supp. 2d 142, 145 (D.P.R. 1999) (finding in civil discovery dispute that
because Navy previously disclosed document in question pursuant to FOIA,
that prior disclosure waived Navy's privilege claim); Kimberlin v. United
States Dep't of Justice, 921 F. Supp. 833, 835-36 (D.D.C. 1996) (holding
exemption waived when material was released pursuant to "valid, albeit misunderstood,
authorization"), aff'd in pertinent part & remanded in other part,
139 F.3d 944 (D.C. Cir. 1998); Quinn v. HHS, 838 F. Supp. 70, 75
(W.D.N.Y. 1993) (attorney work-product privilege waived where "substantially
identical" information was previously released to requester); Schlesinger
v. CIA, 591 F. Supp. 60, 66 (D.D.C. 1984); see also Krikorian
v. Dep't of State, 984 F.2d 461, 467-68 (D.C. Cir. 1993) (court on remand
must determine whether redacted portions of document has been "officially
acknowledged"); cf. Isley, 1999 WL 1021934, at *4 (finding
no waiver where plaintiff failed to demonstrate that documents at issue
were a part of permanent public record); Afshar, 702 F.2d at 1133
(books by former agency officials do not constitute "an official and documented
disclosure"); Armstrong v. Executive Office of the President, No.
89-142, slip op. at 16-17 (D.D.C. July 28, 1995) (holding that book by former
agency official containing information "substantially different" from documents
sought is not official disclosure); Holland v. CIA, No. 92-1233,
1992 WL 233820, at *7 (D.D.C. Aug. 31, 1992) (applying Afshar and
finding that requester has not demonstrated that specific information in
public domain has been "officially acknowledged").
104. See, e.g., Providence Journal Co.
v. United States Dep't of the Army, 981 F.2d 552, 567 (1st Cir. 1992)
(source statements not entitled to Exemption 7(D) protection when individuals
expressly waived confidentiality); Blanton v. United States Dep't of
Justice, 63 F. Supp. 2d 35, 47 (D.D.C. 1999) (finding that FBI confidential
sources waive their privacy interests where they extensively publicize their
status as confidential sources); Key Bank of Me., Inc. v. SBA, No.
91-362, 1992 U.S. Dist. LEXIS 22180, at **25-26 (D. Me. Dec. 31, 1992) (given
that subject of documents has specifically waived any privacy interest she
might have in requested information, agency has not demonstrated that release
of information would harm any privacy interest) (Exemption 6); cf.
Wiley v. VA, 176 F. Supp.2d 747, 753 (E.D. Mich. 2001) (observing
that "[p]laintiff might well have forfeited his Privacy Act protection through
his own selective disclosure and reference to his VA records"). But cf.
McSheffrey, 2003 WL 179840, at *1 (determining that prison visitors
do not waive privacy interest in information provided to prison officials
for security purposes); Campaign for Family Farms v. Glickman, 200
F.3d 1180, 1188 (8th Cir. 1999) (finding that although parties who signed
petition in question did so with knowledge that subsequent signatories would
be able to view their names, they did not waive their privacy interests
under FOIA) ("reverse" FOIA suit); Kimberlin, 139 F.2d at 949 (holding
that fact that employee publicly acknowledged that he had been investigated
and disciplined by Office of Professional Responsibility did not "waive
all his interest in keeping the contents of the OPR file confidential");
Church of Scientology Int'l v. IRS, 995 F.2d 916, 921 (9th Cir. 1993)
(IRS agents' purported waivers of privacy interests held insufficient to
105. Sherman, 244 F.3d at 363-64; see also
Wiley, 176 F. Supp. 2d at 753 (finding that "[t]he caselaw on this
subject, though extremely limited, indicates that an individual can waive
the privacy interest that the [Privacy Act] is meant to safeguard by . .
. disclosing otherwise confidential information"); Wayne's Mech. &
Maint. Contractor, Inc. v. United States Dep't of Labor, No. 1:00-CV-45,
slip op. at 18 (N.D. Ga. May 7, 2001) (reiterating that "[o]nly the witness,
not the Dep't of Labor or OSHA, has the power to waive Exemption 7(D)'s
protection of confidentiality"); Judicial Watch v. Reno, No. 00-0723,
2001 WL 1902811, at *7 (D.D.C. Mar. 30, 2001) (holding that the privacy
interest belongs to individual whose interest is at stake and agency cannot
surrender that interest). But see Iowa Citizens for Cmty. Improvement
v. USDA, 256 F. Supp. 2d 946, 955 (S.D. Iowa Aug. 13, 2002) (noting
that "common sense dictates that prior disclosure -- either by the government,
the news media or private individuals -- does lessen an individual's expectation
106. Sherman, 244 F.3d at 364; see, e.g.,
Wayne's Mech. & Maint. Contractor, No. 1:00-CV-45, slip op. at
18 (N.D. Ga. May 7, 2001) ("[o]nly the witness, not the Dep't of Labor or
OSHA, has the power to waive Exemption 7(D)'s protection of confidentiality");
Judicial Watch, No. 00-0723, 2001 WL 1902811, at *7 (D.D.C. Mar.
30, 2001) (noting that "the privacy interest belongs to [subject], and defendants
cannot surrender it"); cf. Kimberlin, 139 F.2d at 949 (holding
that an employee's acknowledgment that he had been investigated by the Office
of Professional Responsibility did not "waive all his interest in keeping
the contents of the OPR file confidential"); LaRouche, No. 90-2753,
slip op. at 14 (D.D.C. Aug. 8, 2002) (observing that the FBI "need not make
a wholesale disclosure about an individual just because he is a publicly
acknowledged FBI source") (Exemption 7(C)).
107. See Williams v. United States Dep't
of Justice, 556 F. Supp. 63, 66 (D.D.C. 1982) (court refused, in FOIA
action brought by former senator convicted in Abscam investigation, to impose
upon agency duty to search for possibility that privacy interests "may have
been partially breached in the course of many-faceted proceedings occurring
in different courts over a period of prior years," for to do so "would defeat
the exemption in its entirety or at least lead to extended delay and uncertainty");
cf. McGehee v. Casey, 718 F.2d 1137, 1141 n.9 (D.C. Cir. 1983)
(in a non-FOIA case involving CIA's prepublication review, observing that
an agency "cannot reasonably bear the burden of conducting an exhaustive
search to prove that a given piece of information is not published anywhere"
108. See, e.g., Lopez, 2004 WL 626726,
at *1 (ruling that plaintiff failed to demonstrate that specific information
is in public domain); James Madison Project, 2002 WL 31296220, at
*1 (holding that a FOIA plaintiff "bears the burden of showing that the
specific information at issue has been officially disclosed"); Pub. Citizen,
276 F.3d at 645 (finding that plaintiff has burden of demonstrating that
specific information is in public domain); Cottone, 193 F.3d at 555
(holding that requester has burden of demonstrating "precisely which tapes
. . . were played" in open court and that because trial transcript clearly
indicated precise date and time of particular conversations in question,
plaintiff had discharged his burden of production by pointing to those specific
tapes); Isley, 1999 WL 1021934, at *4 (holding that party may gain
access to information on waiver basis only if it can point to specific information
identical to information which is currently being withheld); Nowak,
2000 WL 60067, at *2 (holding that "[i]n order to establish a waiver, the
[plaintiff must be able to demonstrate that the previous disclosure was]
authorized and voluntary"); Davoudlarian, 1994 WL 423845, at *3 (requester
has burden of demonstrating that specific information was disclosed at trial);
Pub. Citizen, 11 F.3d at 201 (applying Afshar and holding
"plaintiffs cannot simply show that similar information has been released,
but must establish that a specific fact already has been placed in the public
domain"); Wood, 2004 U.S. Dist. LEXIS 5525, at **31-32 (ruling that
plaintiff has not demonstrated waiver of attorney work-product privilege);
Edmonds, 272 F. Supp. 2d at 48-49 (noting that plaintiff has failed
to show that this specific information has been released to public); Assassination
Archives, 334 F.3d at 60 (holding that plaintiff must show that previous
disclosure duplicates specificity of withheld material); Enviro Tech,
No. 02-C-4650, slip op. at 15 (N.D. Ill. Mar. 11, 2003) (holding that plaintiff
has not demonstrated that information at issue is exactly same as what is
in public domain); Ctr. for Int'l Envtl. Law v. Office of the United
States Trade Representative, 237 F. Supp. 2d 17, 20 (D.D.C. 2002) (holding
that plaintiff failed to show that information was in public domain merely
by pointing to other publicly available documents that deal with same general
subject); Shores, 185 F. Supp. 2d at 86 (citing Cottone, 193
F.3d at 554, and finding that party seeking disclosure bears initial burden
of production to identify specific information in public domain that is
duplicative of information being withheld); Scott v. CIA, 916 F.
Supp. 42, 50-51 (D.D.C. 1996) (requiring requester to compile list of any
public source material believed to mirror withheld information); Freeman,
1993 WL 260694, at **3-4 (finding that requester failed to demonstrate that
agencies have shown "complete disregard for confidentiality" and had not
shown that information available to public duplicated that being withheld);
Pfeiffer v. CIA, 721 F. Supp. 337, 342 (D.D.C. 1989) (declaring that
a plaintiff must do more than simply identify "information that happens
to find its way into a published account" to meet this burden). But see
also Dean, 813 F. Supp. at 1429 ("[A] party seeking to invoke
the attorney-client privilege has the burden of affirmatively demonstrating
non-waiver.") (non-FOIA case); Wash. Post, 766 F. Supp. at 12-13
(suggesting that agency has ultimate burden of proof when comparing publicly
disclosed information with information being withheld, determining whether
information is identical and, if not, determining whether release of slightly
different information would harm national security).
109. Occidental Petroleum Corp. v. SEC, 873
F.2d 325, 342 (D.C. Cir. 1989) (reverse FOIA suit).
110. Davis, 968 F.2d at 1279-82.
111. Cottone, 193 F.3d at 556.
112. See generally Ronald D. Rotunda, 2 Treatise
on Constitutional Law Â§ 12.1 (3d ed. Supp. 2002).
113. See, e.g., United States v. Napper,
887 F.2d 1528, 1530 (11th Cir. 1989) (addressing issue in context of Federal
Bureau of Investigation records "loaned" to City of Atlanta).
114. See, e.g., FOIA Post, "Homeland
Security Law Contains New Exemption 3 Statute" (posted 1/27/03) (noting
that the new Exemption 3 statute in the Homeland Security Act of 2002, 6
U.S.C.A. Â§ 133(a)(1)(E), "explicitly contemplates the need to ensure consistent,
continued protection of all such information even if it is shared with a
state or local government"); see also FOIA Post, "Critical
Infrastructure Information Regulations Issued by DHS" (posted 2/27/04) (discussing
section 893 of the Homeland Security Act of 2002, 6 U.S.C.A. Â§ 483, which
also contains such an explicit provision).
115. U.S. Const. Art. VI, cl. 2.
116. Gade v. Nat'l Solid Wastes Mgmt. Ass'n,
505 U.S. 88, 108 (1992).
117. See, e.g., United States v. Todd,
245 F.3d 691, 693 (8th Cir. 2001) (finding that the United States Attorney
for the Eastern District of Arkansas properly removed a case from state
court -- involving a FOIA request for federal information under the Arkansas
Freedom of Information Act -- to federal court, "[b]ecause [the Court] believed
that Â§ 552 at the very least plausibly shield[ed] the United States from
any obligation to comply with [plaintiff's] request for its files, . . .
[thus] removal [to federal court] was proper"); United States v. Napper,
887 F.2d at 1530 (determining that the FBI was entitled to retrieve documents
that it loaned to the City of Atlanta upon the condition of nondisclosure
during its assistance with the investigation of the Atlanta Child Murders,
because "the Government s[ought] to retrieve documents it own[ed] and which
the City of Atlanta possesse[d], ha[d] no right to disseminate, and refuse[d]
to return to the FBI");Brady-Lunny v. Massey, 185 F. Supp. 2d 928,
930 (C.D. Ill. 2002) (holding that a newspaper that submitted an access
request under the Illinois Freedom of Information Act law was not entitled
to the names of federal inmates in custody at a county jail, because Exemption
7(C) of the FOIA protected such information concerning such inmates); see
also ACLU of N.J., Inc. v. County of Hudson, 799 A.2d 629, 648-49
(N.J. Super. Ct. App. Div. 2002) (ruling that a federal regulation barring
the release of information concerning federal Immigration and Naturalization
Service detainees in a state holding facility during the investigation of
the September 11, 2001 terrorist attacks pre-empts state access law, and
noting that "we would breach faith with overarching principles of our federalism
if we were to see this case as an occasion for viewing the grant of authority
to the [INS] Commissioner as anything but very broad"). But see Shakopee
Mdewakanton Sioux (Dakota) Comty. v. Hatch, No. 01-1737, 2002 WL1364113,
at *6 (D. Minn. June 20, 2002) (declaring without significant discussion,
much less proper analysis, that "federal classification applies only to
data in the possession of the federal government" and that "federal law
does not pre-empt state public records statutes"); cf. Phillip
Morris Inc. v. Harshbarger, 122 F.3d 58, 82-84 (1st Cir. 1997) (determining
that the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Â§Â§ 1331-1340
(2000), and the Smokeless Tobacco Health Education Act of 1986, 15 U.S.C.
Â§Â§ 4401-4408 (2000), did not pre-empt the Massachusetts Disclosure Act,
because while those federal statutes forbade unauthorized disclosures pursuant
to Exemption 4 of the FOIA, the state statute "neither directly, nor indirectly
allow[ed] access to the information in the [federal agencies] possession")
(non-FOIA case); Progressive Animal Welfare Soc'y v. Univ. of Wash.,
884 P.2d 243, 265 (Wash. 1994) (rejecting university's argument that FOIA
pre-empted state Public Records Act, on questionable basis that "because
[the FOIA] simply does not apply to state agencies, there can be no federal-state
conflict of the kind that gives rise to conflict pre-emption").
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