Blog Post
FOIA Post (2001): Supreme Court Declines to Review Waiver Case
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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