FOIA Update: Litigation Review Yields Greater Disclosure

Pursuant to Attorney General Janet Reno's FOIA Memorandum of October 4, 1993, the Department of Justice conducted a comprehensive review of all of its pending FOIA litigation cases, in order to review the merits of those cases in accordance with the new "foreseeable harm" standard governing the assertion of FOIA exemptions and its accompanying emphasis on the discretionary disclosure of exempt information. This has yielded greater information disclosure and a reduction of records contested in FOIA litigation.

The Civil Division of the Department of Justice coordinated the litigation reviews that were conducted in FOIA lawsuits by the United States Attorneys' Offices nationwide, as well as by its own Federal Programs Branch for FOIA cases handled directly there, and it has determined that these reviews have had a significant impact on many FOIA litigation cases. In many instances, the litigation review process resulted in a narrowing of the scope of records and issues contested in the case through the agency's disclosure of additional information as a matter of administrative discretion.

In other instances, the processes of litigation review either yielded disclosure of all records withheld in the case -- effectively disposing of it outright -- or else yielded disclosure of so much additional information that the FOIA plaintiff decided not to contest the case as to the remaining information withheld, leading to the case's complete disposition on that basis.

The following cases have been identified by the Civil Division as indicative of the results of its processes of litigation review:

• National Comm'n on Law Enforcement & Social Justice v. United States National Central Bureau/Interpol, No. 92-5763 (C.D. Cal.), in which the defendant agency initially withheld more than 1,550 pages of records, almost entirely under the deliberative process privilege of Exemption 5. Through the process of litigation review, the agency reprocessed the withheld records and made a discretionary disclosure, in redacted form, of all but twenty-four of the pages. As a result of this action, the plaintiff organization decided not to contest any of the remaining withheld information and it agreed to dismissal of the lawsuit.

• Institute for Policy Studies v. NSA, No. 92-4301 (D.D.C), in which the defendant agency initially withheld approximately 1,700 pages of records. Through the process of litigation review, the agency made a discretionary disclosure of 840 of these pages, nearly half of the pages at issue. After this disclosure, the plaintiff organization decided not to pursue the case with respect to any of the pages that continued to be withheld.

• Maryland Coalition for Integrated Educ. v. Department of Educ., No. 92-5346 (D.C. Cir.), in which more than half of the records that were initially withheld by the defendant agency under the deliberative process privilege were disclosed upon litigation review. After this discretionary disclosure, the plaintiff organization decided not to contest the remaining withheld records and the case was dismissed.

• Spannaus v. Department of Justice, No. 92-5512 (D.C. Cir.), in which the Department of Justice's Criminal Division conducted a litigation review of 308 pages of records that had been withheld under the attorney work-product privilege of Exemption 5. It made a discretionary disclosure of 303 of those 308 pages.

• Bates v. Department of Justice, No. 91-0108 (M.D. Tenn), in which the FBI's litigation review led to the disclosure of 134 of the 214 pages of records initially withheld, consisting of "institutional source" information that had been withheld under the second clause of Exemption 7(D).

• Wiener v. FBI, No. 83-1720 (C.D. Cal.), in which the FBI's litigation review resulted in its disclosure of 150 additional pages of records (more than half of the total withheld), primarily through the FBI's discretionary disclosure of information previously withheld under Exemption 7(D)'s second clause.

• Vella v. Federal Highway Admin., No. 93-0880 (D.D.C.), in which the defendant agency conducted a litigation review of records that had been withheld in their entireties under the deliberative process privilege of Exemption 5. Upon review, it made a discretionary disclosure of all of the withheld records, which led to the complete disposition of the case.

• Church of Scientology Int'l v. INS, No. 92-1029 (C.D. Cal.), in which the Office of the General Counsel of INS determined that it could make a discretionary disclosure of all records at issue, records which had been withheld under both the deliberative process privilege and the attorney work-product privilege of Exemption 5. As a result, the case was dismissed.

The Tax Division of the Department of Justice, which represents the Internal Revenue Service in all of the FOIA cases that are brought against that agency, experienced comparable results through its litigation review of pending FOIA cases, though on a smaller scale. Its processes of litigation review are limited by the fact that the information withheld in FOIA cases involving the IRS typically consists of "tax return information" that is prohibited from disclosure by statute -- primarily 26 U.S.C. § 6103 --and therefore cannot be considered for discretionary disclosure under the FOIA. Nevertheless, the Tax Division's initial litigation review led to the determination that additional information could be disclosed in eighteen cases, nearly half of those identified as holding potential for discretionary disclosure.

These litigation review results show a direct impact of the application of the "foreseeable harm" standard and the making of discretionary disclosures as a matter of new FOIA policy. It should be remembered that the process of litigation review is an ongoing one and that it continues to apply to all newly pending FOIA litigation cases as they are filed as well.

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