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Supreme Court Declines to Review Waiver Case

In a surprising development, the United States Supreme Court has declined to review a significant law enforcement case under the Freedom of Information Act, 5 U.S.C. 552 (2000), that involves the issue of waiver of FOIA exemptions during the course of litigation.

On June 29, on the last day of its 2000 Term, the Supreme Court issued an order list that denied the Department of Justice's petition for certiorari in United States Department of Justice v. Maydak, No. 00-1507. See 121 S. Ct. 2591 (2001). Without comment, as is customary with action on certiorari petitions, the Supreme Court allowed the D.C. Circuit Court of Appeals' unprecedented FOIA decision to stand.

The D.C. Circuit's decision, Maydak v. United States Dep't of Justice, 218 F.3d 760 (D.C. Cir. 2000), reh'g en banc denied, No. 98-5492 (D.C. Cir. Oct. 30, 2000), stands as the first FOIA case in which an appellate court has ordered the disclosure of agency records on the ground that the agency waived its right to invoke FOIA exemptions for them by not doing so at an earlier stage of the litigation. It also is the first case in which any court has ever ordered the disclosure of grand jury records under the FOIA, with hundreds of pages of such records ordered disclosed under the D.C. Circuit's new waiver rule.

That waiver rule, which threatens disclosure based upon an agency's handling of a FOIA matter in litigation only -- not at the administrative level -- holds that an agency ordinarily must raise "all its FOIA exemption claims in the original district court proceedings," or else risk being denied the right to subsequently rely on any exemption not previously raised. Maydak v. United States Dep't of Justice, 218 F.3d 760, 768 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 2591 (2001). This rule has its roots in a 20-year-old D.C. Circuit decision, Ryan v. Department of Justice, 617 F.2d 781, 792 & n.38a (D.C. Cir. 1980), which held that "raising" an exemption means invoking it "as a defense in a manner in which the district court could rule on the issue." District court judges generally have broad discretion, though, to expressly allow FOIA litigation to proceed in the most efficient fashion possible upon a party's specific request. See, e.g., Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 581 (D.C. Cir. 1987) (holding that district court did not abuse such discretion in permitting agency to raise exemption claims seriatim in Exemption 7(A) case).

In the Maydak case itself, the agency successfully withheld the requester's criminal prosecution files under Exemption 7(A) of the FOIA, based upon the pendency of his ongoing prosecution and appeals, without "processing" those files for the applicability of all underlying exemptions (such as Exemption 7(C) and Exemption 7(D), as well as grand jury information withholdable under Exemption 3) at that time. When the factual basis for applying Exemption 7(A) to these files subsequently ended, as inevitably occurs at some point, the FOIA case was still pending on appeal of the district court's Exemption 7(A) judgment.

Unexpectedly, though, the D.C. Circuit did not recognize the temporal nature of Exemption 7(A) as warranting a practical approach to such situations; rather, it refused to permit the invocation of any FOIA exemption that was not "raised" at the district court level, and it ordered immediate disclosure of all of the records as a consequence of what it saw as the agency's litigation "waiver." See FOIA Post, "Supreme Court Is Asked to Review Law Enforcement Case" (posted 5/30/01) (describing D.C. Circuit's decision). In July, after the Supreme Court declined to take the case for review, all of these law enforcement files, including 1300 pages of grand jury records, were turned over to the FOIA requester in the case.

Now, particularly when litigating FOIA cases within the D.C. Circuit, agencies should take pains to abide by Maydak in lawsuits that involve underlying FOIA exemptions -- such as most commonly is the case whenever large volumes of records are withheld categorically under Exemption 7(A) or under Exemption 5's attorney work-product privilege, for example. Such efforts require careful coordination between agency counsel and the agency's principal litigation counsel in any case in which underlying FOIA exemptions or overlapping FOIA defenses are involved. See also "Waiver of Exemptions in Litigation" Subsection of "Litigation Considerations" Section of "Justice Department Guide to the Freedom of Information Act."

Maydak was only the seventh case in the nearly 35-year history of the FOIA in which the Supreme Court turned down the government's petition for its review. Over the years, the Supreme Court has granted certiorari petitions in a total of 32 FOIA cases, although the numbers of such cases have been declining in recent years. See FOIA Update, Vol. VI, No. 2, at 1-2 (describing first 19 Supreme Court FOIA cases as of 1985); see also FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01); FOIA Update, Vol. XX, No. 1, at 1; FOIA Update, Vol. XVIII, No. 1, at 1; FOIA Update, Vol. XV, No. 2, at 2; FOIA Update, Vol. XIV, No. 3, at 10; FOIA Update, Vol. XIII, No. 1, at 1; FOIA Update, Vol. X, No. 4, at 1-2; FOIA Update, Vol. X, No. 3, at 1-2; FOIA Update, Vol. X, No. 2, at 1; FOIA Update, Vol. IX, No. 2, at 1-2; FOIA Update, Vol. VIII, No. 3, at 1-2; FOIA Update, Vol. IV, No. 4, at 11; FOIA Update, Vol. III, No. 2, at 5.   (posted 8/7/01)


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