FOIA Update: FOIA Supreme Court History

The Government's recent victory in CIA v. Sims caps off an extremely successful twelve years of FOIA litigation before the Supreme Court. In the nineteen FOIA cases that the Court has decided, involving a wide array of FOIA issues, the Government's position has prevailed all but once. These decisions have touched on all of the FOIA's major exemptions, as well as some critical procedural issues, and have had an enormous impact on FOIA administration govemmentwide.

In the first FOIA case to reach the Supreme Court, EPA v. Mink, 410 U.S. 73 (1973), it reversed a lower court in camera inspection order and held that Congress had not authorized district judges to conduct their own review of classified documents. However, Congress effectively overruled that decision through the 1974 FOIA Amendments by expressly providing for in camera review. Similarly, when the Court ruled in FAA v. Robertson, 422 U.S. 255 (1975), that Exemption 3 was broad enough to incorporate even highly discretionary nondisclosure statutes, Congress responded by narrowing that exemption a year later.

In 1974, in Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974), the Supreme Court was confronted with an unusual procedural question: Does a judge in a FOIA case have the authority to enjoin upcoming agency action in a related, non-FOIA matter? The Court's answer was "no."

The following year, the Court reviewed two cases involving Exemption 5 issues. In NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), and in Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 (1975), the Court clarified the contours of the protection provided by the deliberative process privilege.

The Supreme Court has only once ruled squarely against the Government and ordered the release of records for which the Government sought protection. That occurred in Department of the Air Force v. Rose, 425 U.S. 352 (1976), in which the Court rejected the arguments that case summaries of Air Force Academy ethics hearings could be withheld under Exemptions 2 and 6.

Two years later, the Court for the first time considered a law enforcement record issue. In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978), held that Exemption 7(A) can provide broad protection of witness statements collected in unfair labor practice proceedings, in order to guard against interference with such proceedings. The breadth of such protection authorized by the Court is still being realized on a case-by-case basis today. See FOIA Update, Spring 1984, at 3.

In 1979, the Court returned to Exemption 5, this time focusing on a relatively uncommon privilege that provides only short-term, but sometimes essential, protection. In Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979), it held that Exemption 5 incorporates the privilege embodied in Rule 26(c)(7) of the Federal Rules of Civil Procedure, which can protect against the premature disclosure of an agency's commercial information.

In a series of four FOIA decisions, the Supreme Court dealt with two different procedural issues. In its watershed decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), the Court held that courts have jurisdiction over so-called "reverse" FOIA lawsuits under the Administrative Procedure Act, not under the FOIA, and that FOIA exemptions are discretionary, not mandatory. One year later, in GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375 (1980), the Court resolved a more unusual "reverse" FOIA controversy by holding that an agency does not "improperly withhold" a record within the meaning of the FOIA's jurisdictional language when its disclosure is prohibited by an existing court order.

That same year, the Supreme Court simultaneously issued two landmark decisions on the meaning of "agency record" under the FOIA. In ruling that the records of a federal grantee were not "agency records," the Court in Forsham v. Harris, 445 U.S. 169 (1980), made clear that an agency must have created or obtained a record as a "prerequisite to its becoming an 'agency record.'" However, the Court at the same time emphasized in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) -- in which it found that certain papers of Henry Kissinger did not have "agency record" status at the time they were requested -- that agency "control" over a record (or lack of it) can determine its FOIA status.

Also in 1980, and again in early 1982, the Supreme Court returned to Exemption 3 for the first time since its amendment several years earlier. In both Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102 (1980), and Baldrige v. Shapiro, 455 U.S. 345 (1982), the Court reviewed nondisclosure statutes which it found to be specific enough to satisfy Exemption 3 even as narrowed.

In its most recent FOIA decisions, the Supreme Court has taken an increasingly pragmatic view of the FOIA. In FBI v. Abramson, 456 U.S. 615 ( 1982), for example, the Court's majority held in a closely divided decision that sensitive investigatory information originally compiled for law enforcement purposes does not lose its Exemption 7 protection when subsequently recompiled into a new document for purposes other than law enforcement

Likewise, in Department of State v. Washington Post Co., 456 U.S. 595 (1982), the Court adopted a similarly broad interpretation of Exemption 6's threshold "similar files" requirement. thereby permitting that exemption to apply potentially to any information regarding an individual.

Most recently, the Court applied such a pragmatic approach to the attorney work-product and the aircraft accident investigation report privileges under Exemption 5. In FTC v. Grolier Inc., 462 U.S. 19 (1983), it held that the need for attorney work-product protection extends indefinitely. In that same vein, it held in United States v. Weber Aircraft Corp., 104 S. Ct. 1488 (1984), that even the lesser-known civil discovery privilege involved in that case should be honored under Exemption 5, lest the important policy interests embodied in the privilege be "circumvented" through the FOIA.

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