FOIA Update: FOIA Counselor: The Effect of Prior Disclosure: Waiver of Exemptions

FOIA Counselor

Even when all substantive requirements of a Freedom of Information Act exemption have been satisfied for application to a particular record, factual circumstances may require that a further inquiry be made before the record can be withheld in response to a FOIA request. The question occasionally arises: Has the agency waived its right to invoke the exemption because of a prior disclosure? The resolution of such an inquiry requires a careful analysis of the circumstances surrounding the prior disclosure, including its extent, recipient, justification, and authorization.

At the outset, it should be emphasized that only a disclosure beyond the Executive Branch can threaten to operate as a waiver under the FOIA. The circulation of a document within an agency in no way waives an applicable exemption. See, e.g., Lasker-Goldrnan Corp. v. GSA, 2 GDS ¶ 81,125 at 81,322 (D.D.C. 1981). Nor does the release of information between two federal agencies impair the ability of either agency to withhold it. See, e.g., Chilivis v. SEC, 673 F.2d 1205, 1211-12 (11th Cir. 1982). Furthermore, it appears to be reasonably well established that agencies may disclose predecisional documents to advisory committees, even those including members of the public, without waiving their ability to protect the records under Exemption 5, at least where such disclosures further the "free and candid exchange of ideas during the process of decisionmaking." Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976).

Similarly, the disclosure of a specifically requested document to a Member of Congress in his or her official capacity, see Murphy v. Department of the Army, 613 F.2d 1151, 1155 (D.C. Cir. 1979), to a congressional committee, see Aspin v. Department of Defense, 491 F.2d 24, 26 (D.C. Cir. 1973), or to the Government Accounting Office (an arm of Congress), see Shermco v. Secretary of the Air Force, 613 F.2d 1314, 1320-21 (5th Cir. 1980), has been held not to waive Exemption 5 protection for predecisional documents. Nor does a disclosure to Congress waive Exemption 1 protection for classified documents. See, e.g., Moon v. CIA, 514 F. Supp. 836, 841 (S.D.N.Y. 1981). A contrary rule would thwart the special congressional access provision at 5 U.S.C. § 552(c),see Exxon v. FTC, 384 F. Supp. 755, 762 (D.D.C. 1974), although a question does remain as to whether waiver would result from a congressionally authorized release of such documents, see Murphy v. Department of the Army, 613 F.2d at 1158-59.

In a related vein, it appears to be the general rule that when an agency is compelled to disclose a document under limited and controlled conditions, it is not barred from later invoking applicable exemptions under the FOIA. Thus, a release of documents under a protective order in an administrative proceeding does not estop an agency from later withholding them from another party, see Lead Industries Ass'n, Inc. v. OSHA, 610 F.2d 70, 79 n.13 (2d Cir. 1979). nor does a release in criminal discovery under the Jencks Act, 18 U.S.C. § 3500, for the "limited purpose" or of according a criminal defendant his constitutional right to a fair trial, see Krohn v. Department of Justice, 3 GDS ¶ 83,120 at 83,724 (D.D.C. 1979).

In general, the courts appear willing to defer to the practicalities of agency operations when faced with a question of waiver. A leading example of this is Cooper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977), in which the Navy disclosed an aircraft accident investigation report to the manufacturer of the aircraft. Even though the recipient was an adverse party to the requester in pending litigation, the Fifth Circuit refused to hold that the Navy had waived its ability to withhold the report under a the FOIA, because it regarded the disclosure as "necessary to carry out effectively a [governmental] purpose." 558 F. 2d at 278. See also Aviation Consumer Action Project v. Washburn, supra. On the other hand, however, where such a disclosure is made not in furtherance of a legitimate governmental purpose, especially where it is not authorized under agency regulations, courts have been particularly unsympathetic to agencies and have readily found that a waiver has occurred. See, e.g., Cooper v. Department of the Navy, 594 F.2d 484, 487-88 (5th Cir. 1979); State of North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978) ("selective disclosure" found to constitute waiver); Education/Instruccion, Inc. v. HUD, 471 F. Supp. 1074, 1081-82 (D. Mass. 1979).

Where an agency mistakenly discloses the contents of a document, it cannot always expect to be able to withhold the document in response to a FOIA request. For example, in Dresser Industrial Value Operations, Inc. v. EEOC, 2 GDS ¶ 82,197 at 82,575 (W.D. La. 1982), an agency was found to have waived an applicable FOIA exemption when one of its employees unwittingly read aloud from the document in question to the plaintiff's attorney. Yet in the recent case of Medina-Hincapie v. Department of State, 700 F.2d 737, 741 n.20 (D.C. Cir. 1983), the D.C. Circuit rebuffed an allegation by the plaintiff that agency officials "showed his attorneys copies" of documents at issue, holding that "[a]n unauthorized disclosure of documents does not . . . constitute a waiver of the applicable FOIA exemption" (emphasis in original).

Indeed, should a disclosure by an agency employee be found to be a purposeful, yet unauthorized act -- i.e., a "leak" -- it has consistently been held that a waiver has not occurred. See Lasker-Goldman Corp. v. GSA, supra; Murphy v. FBI, 490 F. Supp. 1138, 1142 (D.D.C.) (waiver would lead to "exacerbation of the harm created by the leaks"), summary judgment vacated as moot, No. 80-1612 (D.C. Cir. 1980); Safeway Stores, Inc. v. FTC, 428 F. Supp. 346, 347 (D.D.C. 1977); see also Cooper v. Department of the Navy, supra, 594 F.2d at 488 (dictum).

In sum, while the courts usually give careful scrutiny to the circumstances surrounding any agency disclosure argued by a plaintiff to be a waiver of FOIA exemptions, they have to date consistently rejected such arguments where the disclosure in question fulfilled a legitimate governmental purpose or was unauthorized.

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