City of Va. Beach v. United States Dep't of Commerce, 995 F.2d 1247 (4th Cir. 1993).
In a factually complex Exemption 5 case applying the
deliberative process privilege, the Fourth Circuit Court of
Appeals has reemphasized that "the first task in undertaking FOIA
review is to identify the full context within which the contested
documents are generated." At issue were a report and related
documents created at the prompting of the City of Virginia Beach,
which had questioned the agency's opposition to the City's
attempt to build a water pipeline from a distant reservoir. In
addressing the privilege's "predecisional" requirement, the
Fourth Circuit ruled that although the focus of the documents on
a completed Corps of Engineers' permit proceeding "concededly
look[s] backward," those documents are "retrospective
explanations of past events only when they are impermissibly
abstracted from the context of the [the agency's] ongoing
development of its position on the pipeline" in a related
proceeding before the Federal Energy Regulatory Commission. It
concluded that the fact that the agency's documents were
"responsive to the City's contentions regarding
Church of Scientology Int'l v. IRS, 995 F.2d 916 (9th Cir. 1993).
Clarifying Exemption 7's law enforcement threshold requirement, the Ninth Circuit Court of Appeals reversed a district court decision by ruling that the activities of the Internal Revenue Service's Exempt Organization division have a law enforcement purpose. The Exempt Organization division performs "voluntary compliance and formal [administrative] determination functions" in deciding whether entities are eligible for the government benefit of tax exempt status," all of which are "accompanied by due procedure." Noting that it had previously held that the "IRS has the 'requisite law enforcement mandate' to qualify as a law enforcement agency," and finding that the division's activities have the "salient characteristics of law enforcement," the Ninth Circuit held that the division "performs a law enforcement function by enforcing the provisions of the federal tax code that relate to qualification for tax exempt status." Thus, the district court was ordered to determine on remand whether the documents, which concern the Scientology organization's attempt to obtain tax exempt status, were in fact compiled for law enforcement purposes.
Summers v. United States Dep't of Justice, 999 F.2d 570 (D.C. Cir. 1993).
In a procedural ruling invalidating the regulations of many
federal agencies, the D.C. Circuit Court of Appeals has held that
agencies may no longer require FOIA requesters to submit a
notarized document attesting to their identity in order to obtain
information about themselves, or by other individuals attesting
that they have given consent to the disclosure of information
otherwise withholdable under the privacy exemptions of the FOIA.
Relying on Justice Department regulations designed to guard
against unauthorized disclosure of personal information, the FBI
had refused to accept a privacy waiver signed by the subject of a
FOIA request made by author Anthony Summers. Rather than being
notarized, the waiver he submitted was executed in accordance
with the provisions of 28 U.S.C.
Army Times Pub. Co. v. Department of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993).
Suggesting that the Air Force was "cherry picking the materials to be made public," the D.C. Circuit Court of Appeals found that the results of surveys of Air Force personnel could not be withheld unless the agency could distinguish them from the survey results it had voluntarily disclosed in press releases. The requested records consisted of the results of telephone surveys of randomly selected military personnel in which each respondent was asked a series of questions about "working conditions within the Air Force, such as pay, bonuses, training and commissaries." Although the Air Force had previously released some results reflecting generally high satisfaction with various aspects of the base commissaries, it withheld most of the survey results under the deliberative process privilege of Exemption 5. Finding that the predecisional character of the records was "not in dispute" because they were used to "develop appropriate policies and determine how best to implement them" the Court focused on whether they were correctly characterized as "deliberative." While careful not to find that the Air Force had "'waived' its right to claim an exemption simply because it has released information similar to that requested," the D.C. Circuit found that "the fact that some of the information in the [disclosed] surveys is plainly factual and poses no threat to the agency's deliberative process suggests that other information in the surveys could also be released." It therefore remanded the case for a determination of whether such nonexempt information could be segregated and disclosed.
Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993).
In a decision involving the report which served as the basis
for the Attorney General's exclusion from the United States of
Kurt Waldheim, the D.C. Circuit Court of Appeals clarified
several longstanding issues under Exemptions 5 and 7(A). At
issue was the "Waldheim Report," which documented the wartime Na
zi activities of the former SecretaryGeneral of the United
Nations and former President of Austria. The D.C. Circuit began
its deliberative process analysis by noting that the factual
material in the report was "assembled through an exercise of
judgment in extracting pertinent material from a vast number of
documents for the benefit of an official called upon to take
discretionary action," much like that in Montrose Chemical Corp.
v. Train, 491 F.2d 63 (D.C. Cir. 1974), rather than Playboy
Enters., Inc. v. Department of Justice, 677 F.2d 931 (D.C. Cir.
1982), which involved an investigatory report produced only to
inform. It then ruled that the deliberative process privilege
was properly applicable to the entire report except for the
chronology of Mr. Waldheim's military service, which it found to
"reflect no point of view" because the "selection of the
categories of facts
Turning to Exemption 7(A), the D.C. Circuit held Exemption 7
to apply to records prepared for exclusion proceedings, even
though in such proceedings the burden is on the excluded person
to challenge the government's action, because "[r]egulatory
AGS Computers, Inc. v. United States Dep't of Treasury, IRS, No. 92-2714 (D.N.J. Sept. 16, 1993).
Applying the new Critical Mass distinction between "voluntary" and "required" submissions, the District Court for the District of New Jersey has held that documents concerning the submitter's appeal of its suspension from the IRS's electronic filing program were "voluntarily" submitted and thus entitled to protection under Exemption 4's new "customary treatment" standard. Although the submitter had been sent a letter regarding his right to appeal the suspension, the court found that "there was no mandate in the letter to submit any documents." Moreover, it held, "if the submission of the documents were obligatory, there would be a controlling statute, regulation or written order." Acknowledging that failure to submit the documents could have resulted in the submitter's license to file electronically being permanently revoked, the court did not regard that as making their submission "required." It rejected the requester's argument that submissions should be deemed "required" as "a matter of law" whenever a particular submission "benefits" the submitter, ruling that such an approach is "flawed because it relies too heavily on hindsight." The markings on the documents, a confidentiality agreement and a state court protective order all demonstrated that the documents were not customarily disclosed to the public.
Beck v. Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993).
In an instructive decision about the nature of the "public
interest" to be factored into the balancing tests of Exemptions 6
and 7(C), the D.C. Circuit Court of Appeals held that "[t]he
identity of one or two relatively lowlevel government wrongdoers,
released in isolation, does not provide information about
the agency's own conduct" and, therefore, does not implicate a
qualifying "public interest" under United States Dep't of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).
The requester a convicted drug dealer had sought records of the
Department's Office of Professional Responsibility regarding two
DEA agents, whom the requester had accused of illegal activities
in his investigation. In response, OPR refused to confirm or
deny the existence of records. In upholding OPR's action under
both Exemptions 6 and 7(C), the D.C. Circuit first rejected the
argument that, before it could respond, OPR was required to
search its files to determine whether or not there were records
which contained "credible evidence" of wrongdoing on the part of
the employees. It then distinguished Stern v. FBI, 737 F.2d 84
(D.C. Cir. 1984), by noting that this case did not involve high
level officials whose activities "occurred against the backdrop
of a well publicized scandal." Given the lack of a qualifying
"public interest," the D.C. Circuit did not "linger" over the
balancing test because it found that government employees have
"at least some privacy interest in [their] own employment records
. . . that extends to 'not having it known whether those records
contain or do not contain' information on wrongdoing, whether
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