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FOIA Update: Government Wins John Doe Corp. Case

FOIA Update
Vol. X, No. 4

Government Wins John Doe Corp. Case

In an important Freedom of Information Act victory for federal law enforcement agencies, the Supreme Court on December 11 ruled in the Government's favor in the unusual Exemption 7 case of John Doe Agency v. John Doe Corp., 110 S. Ct. 471 (1989).

The case centered on the proper interpretation of Exemption 7's threshold requirement that records or information protected under the exemption be "compiled for law enforcement purposes." The records at issue had been created for routine audit purposes by a non-law enforcement agency but subsequently became sensitive within the context of an ongoing criminal investigation of a defense contractor. Seeking the records, the contractor argued -- and the Second Circuit Court of Appeals had agreed -- that Exemption 7(A) could not apply because the records were not compiled for law enforcement purposes originally. See FOIA Update, Winter 1989, at 2.

By a 6-3 majority, however, the Supreme Court rejected this interpretation of the term "compiled" in Exemption 7, firmly refusing to construe the statutory language narrowly or to read it as if it were written as "originally compiled."

Writing for the Court, Associate Justice Harry A. Blackmun took a practical, "plain meaning" approach to the issue: "The plain words contain no requirement that compilation be effected at a specific time. . . . We thus do not accept the distinction the Court of Appeals drew between documents that originally were assembled for law-enforcement purposes and those that were not so originally assembled but were gathered later for such purposes." 110 S. Ct. at 476.

The "ordinary meaning" of the statutory term "compiled," Justice Blackmun reasoned, "seems readily to cover documents already collected by the Government originally for non-law-enforcement purposes." 110 S. Ct. at 476. Therefore, to qualify for protection under Exemption 7, he concluded, "documents need only to have been compiled [for a law enforcement purpose] when the response to the FOIA request must be made." Id. at 477.

Practical Exemption 7 Approach

This practical approach to determining a record's "compilation" status under Exemption 7 will allow the Government to show on remand in the case how the records at issue qualify for protection under Exemption 7(A) on the basis of their "recompilation" into the files of the ongoing criminal investigation and their current sensitivity there.

In reaching this result, Justice Blackmun emphasized that the Supreme Court "consistently has taken a practical approach" to the interpretation of FOIA exemptions and that it "has endeavored to apply a workable balance" between the public's interests in disclosure and the Government's needs to protect sensitive information. 110 S. Ct. at 478. He concluded that it would not be consistent with this approach to construe Exemption 7's language "in a nonfunctional way." Id.

Somewhat surprisingly, Justice Antonin Scalia dissented from this approach, together with Justice Thurgood Marshall, going so far as to suggest that FOIA exemptions should be narrowly construed wherever there exists any ambiguity in the Act, so as to make it "inescapably clear to Congress what changes need to be made." 110 S. Ct. at 482. Justice John Paul Stevens dissented also.

Another anomaly in the case was its use of pseudonyms for the parties' names. Inexplicably, the plaintiff was permitted to sue anonymously and the Supreme Court did not identify it even after its identity (Grumman Aircraft Corp.) inadvertently was disclosed in its own court papers and then was reported in the media. The defendant agencies were the FBI and Defense Contract Audit Agency.

Possible Supreme Court FOIA Cases

With its disposition of John Doe Corp., the Supreme Court has issued its fourth FOIA decision within less than two years, a particularly heavy volume of recent Supreme Court FOIA activity. While no FOIA case remains pending on the Court's docket at this time, the most likely possible candidates for future Supreme Court FOIA consideration are two longstanding Exemption 6 cases presently before the D.C. Circuit Court of Appeals.

Longstanding Exemption 6 Cases

The oldest of these two cases, Washington Post Co. v. Department of State, 840 F.2d 26 (D.C. Cir. 1988), has already been to the Supreme Court at an earlier stage and may require the Court's review a second time. It involves the State Department's efforts to gain Exemption 6 protection for the sensitive fact of whether a former high-ranking Iranian official still living in Iran ever obtained U.S. citizenship. More than a year and one-half ago, a divided panel of the D.C. Circuit refused to approve Exemption 6 protection based upon the State Department's demonstrations of feared harm. See FOIA Update, Spring 1988, at 2.

In response, the Government filed a petition for rehearing en banc, seeking to have the case heard by the full D.C. Circuit, a form of appellate review which is rarely granted. This rehearing petition has remained pending before the D.C. Circuit since March of last year and only recently prompted the court to request that an opposition to it be filed. Unless the petition is successful this case is quite likely to head back toward the Supreme Court in the coming year.

A second adverse Exemption 6 decision handed down by the D.C. Circuit last year, New York Times Co. v. NASA, 852 F.2d 602 (D.C. Cir. 1988), reh'g en banc ordered, No. 87-5244 (D.C. Cir. Oct. 5, 1988), will soon receive en banc reconsideration that might (from the Government's perspective) obviate the need for Supreme Court review. At issue there is whether NASA can withhold its audiotape of the space shuttle Challenger disaster (the transcript of which already has been disclosed) to protect the personal privacy interests of surviving family members under Exemption 6.

After a divided D.C. Circuit panel refused to consider Exemption 6 protection for the audiotape last year, the D.C. Circuit agreed to rehear the case en banc (but did not vacate the panel decision) and set it down for an oral argument originally scheduled to be heard this past March. See FOIA Update, Fall 1988, at 2. Subsequently, however, the D.C. Circuit indefinitely postponed the en banc argument in New York Times (presumably to allow the case to be considered by newly appointed judges) and now just recently has rescheduled it for next April 25. This case, too, will be a very likely subject of Supreme Court review if the full D.C. Circuit does not overturn the existing adverse Exemption 6 decision.


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Updated August 13, 2014