FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. IV, No. 3
1983

Should the practice of referring requested documents to their agencies of origination (see FOIA Update, June 1982, at 5) be altered by the D.C. Circuit's McGehee decision?

No. The D.C. Circuit's decision in McGehee v. CIA, 697 F.2d 1095, 1105-12 (D.C. Cir.), vacated in part on panel rehearing, reh'g en banc denied, 3 GDS ¶ 83,221 (D.C. Cir. 1983), certainly places a cloud over the previously clear case law permitting such referrals. However, the Department of Justice takes the position that the McGehee decision is entirely interlocutory and nonbinding on that issue. Therefore, pending the further development of case law on the issue, existing agency referral practices should not be altered.

May an agency continue to invoke Exemption 7(D) protection for the identity of, and information provided by, a confidential source who is now deceased?

Yes. The courts have uniformly upheld postmortem refusals to release both categories of information under Exemption 7(D). See Cohen v. Smith, No. 81-5365, mem. op. at 4 (9th Cir. Mar. 25, 1983) (identities of sources); Kiraly v. FBI, 3 GDS ¶ 82,466 at 83,138 (N.D. Ohio 1982) (confidential information provided by source); Stassi v. United States Department of Justice, Civil No. 78-0536, slip op. at 9-10 (D.D.C. Apr. 12, 1979) (confidential information provided by source who testified at trial). Although these decisions contain little elaboration on this point, the application of Exemption 7(D) protection to deceased sources is supported by sound pragmatic and legal principles. The primary purpose of Exemption 7(D) is to encourage individuals to supply information to law enforcement authorities readily, secure in the knowledge that they will never publicly be acknowledged as informants. "Such encouragement is enhanced if individual sources know that their names will remain confidential even after their death, thereby protecting family and associates." Cohen v. Smith, supra. Indeed, in some instances a source may desire that his cooperation with law enforcement authorities remain secret even from his family and close friends. Compare with FOIA Update, Sept. 1982, at 5 (privacy protection for deceased persons).

Can an agency deny a FOIA request which requires an extremely burdensome search, and/or encompasses an enormous volume of records, on the ground that the records are not "reasonably described?"

No. The sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not "reasonably describe" records within the meaning of 5 U.S.C. § 552(a)(3)(A). That provision in the FOIA was intended to ensure that a FOIA request description "be sufficient [to enable] a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." H.R. Rep. No. 93-876, 93d Cong., 2d Sess. 6 (1974). See also S. Rep. No. 93-854, 93d Cong., 2d Sess. 10 (1974) ("[T]he identification standard should not be used to obstruct public access to agency records."); Bristol-Meyers Co. v. FTC, 424 F.2d 935, 938 (D.C. Cir.), cert. denied, 400 U.S. 824 (1970).

However, it is well established that "broad, sweeping requests lacking specificity are not permissible." Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978). See, e.g., Irons v. Schuyler, 465 F.2d 608, 613 (D.C. Cir.) (request seeking "all unpublished manuscript decisions of the Patent Office" held "so broad in the context of the Patent Office files" as to be insufficient), cert. denied, 409 U.S. 1076 (1972); Fonda v. CIA, 434 F. Supp. 498, 501 (D.D.C. 1977) (request for all documents not mentioning plaintiff's name but which "concern her" held too broad). Further, the "reasonable" description requirement does fairly apply to locations to be searched, as well as to subject matter. See, e.g., Marks v. United States, supra, 578 F.2d at 263 ("it would be an unreasonable interpretation of the FOIA" to construe it to require an automatic search of all FBI field offices.); Shaw v. United States Department of State, 559 F. Supp. 1053, 1061 (D.D.C. 1983) ("A reasonable description of the desired materials must include the location of the search.").

How should an agency respond to a FOIA request for records which are subject to a court order prohibiting disclosure?

Such a request should be denied. An agency has no discretion to release any record covered by an injunction, protective order, or court seal prohibiting disclosure, nor is it under any obligation under the FOIA to do so. See GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386-87 (1980) (records subject to nondisclosure order not "improperly withheld" under FOIA); Legal Times of Washington, Inc. v. FDIC, 1 GDS ¶ 80,234 at 80,585 (D.D.C. 1980). Further, it has been held that the propriety of any existing injunction, protective order, or court seal is not properly raised as an issue in FOIA cases because the FOIA is directed at federal agencies, not at courts. See FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982).

What action can be taken against an agency employee who denies a FOIA request improperly?

Beyond individual agency personnel procedures, there is a seldom-used provision contained in subsection (a)(4)(F) of the FOIA which mandates an investigation by the Special Counsel of the Merit Systems Protection Board in cases of suspected "arbitrary or capricious" withholding under the FOIA. Such proceedings by the MSPB Special Counsel are initiated automatically after a court (a) orders the production of agency records improperly withheld, (b) assesses attorney's fees and litigation costs, and (c) makes "an additional written finding that the circumstances surrounding the withholding raise questions whether the agency personnel acted arbitrarily or capriciously with respect to the withholding." 5 U.S.C. § 552(a)(4)(F). It has been held that each of the above conditions must be met, as "separate prerequisites," before there can be such an administrative proceeding. Emery v. Laise, 421 F. Supp. 91, 93 (D.D.C. 1976), aff'd sub nom. Emery v. Reinhardt, No. 75-0381 (D.C. Cir. Oct. 26, 1977). Although there have been only a very small number of such cases referred to the MSPB with findings of suspected "arbitrary or capricious" conduct -- and no case has been found upon investigation to warrant disciplinary measures against an agency employee -- the potential vitality of this special sanction provision cannot be ignored. See, e.g., FOIA Update, Spring 1983, at 3.

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