Vol. XIX, No. 3
Significant New Decisions
TRIFID Corp. v. National Imagery & Mapping Agency, No. 4:97-CV-2163, 1998 WL 410679 (E.D. Mo. July 17, 1998).
In a "reverse" FOIA decision involving challenges both to the agency's predisclosure notification procedures and the underlying merits of its disclosure decision, United States District Court Judge Charles A. Shaw upheld the decision of the National Imagery and Mapping Agency (NIMA) to release unit price information. The submitter, a NIMA contractor for computer software used "to create seamless photographic images," first raised numerous challenges to NIMA's predisclosure notification process -- specifically, the absence of detail in NIMA's disclosure decision and the lack of an administrative appeal and an opportunity to submit additional evidence. Judge Shaw rejected those challenges, holding that "effective judicial review" is possible so long as an agency "indicate[s] the determinative reason for the action taken" and, accordingly, "[a]n agency's explanation of its decision may be 'curt.'" Further, he held, an administrative appeal and "an opportunity to submit additional information" are simply "not a prerequisite to the adequacy of [an agency's] factfinding procedures." As to the merits of NIMA's disclosure decision, Judge Shaw, relying on numerous decisions from the District Court for the District of Columbia, found that the contract price information was "required" and therefore subject to the National Parks tests. Because the submitter's "objections to disclosure mainly detailed measures it took to guard and protect its pricing information" -- contentions which Judge Shaw found "simply not relevant to the National Parks analysis" -- NIMA's decision to release was upheld.
Judicial Watch, Inc. v. United States Dep't of Justice, No. 97-2089 (D.D.C. July 14, 1998).
Focusing on the importance of requesters' consulting agency FOIA regulations, United States District Court Judge Colleen Kollar-Kotelly held that she had no jurisdiction over a FOIA suit when the agency's FOIA offices had not received a misaddressed request ten working days prior to the filing of the suit. Judicial Watch, seeking records concerning Ruby Ridge, Waco, and Richard Jewell, mailed its request to the Attorney General on August 21, 1997. It was received on August 25 and, under agency regulations, forwarded to the referral unit, which transmitted it to eight appropriate components, all subsequent to September 18. Meanwhile, Judicial Watch sued on September 10 for agency failure to respond in a timely manner to its FOIA request. Relying on the agency's regulation that informs requesters that a "request not addressed to the appropriate component will be deemed not to have been received by the Department of Justice until [it has been] forwarded . . . to the appropriate component and that component has received the request," Judge Kollar-Kotelly observed that the requester "should have consulted the DOJ's regulations before submitting its request" -- which "could not be more clear on this point" -- and dismissed the suit because the requester had failed to exhaust its administrative remedies.
National Ass'n of Criminal Defense Lawyers v. United States Dep't of Justice, No. 97-372 (D.D.C. July 22, 1998).
In a case involving a draft report of the investigation by the Justice Department's Inspector General "into allegations of wrongdoing and improper practices within the FBI Laboratory," United States District Court Judge Gladys Kessler held that even though the report was circulated to individuals outside of the Executive Branch, it was still entitled to protection under Exemption 5. The requester argued that the draft report was neither an "inter-agency nor an intra-agency document" because it had been provided to consultants "not in the government for review and comment" and that it was "available by law to a party" in litigation with the government because portions had been provided to "defense counsel in criminal cases as discoverable exculpatory material." On the first point, Judge Kessler ruled that "government operation requires open discussions among all government policy-makers and advisors, whether those giving advice are officially part of the agency or are solicited to give advice only for specific projects." Next, she found that the disclosures required in criminal discovery did "not make the Draft Report 'available by law'" because to do so would "penalize[ the agency] for making every effort to meet its constitutional disclosure obligations." She also ruled that the draft report contained no reasonably segregable nonexempt information because a comparison with the previously disclosed final report would reveal the decisionmaking by highlighting the differences between the two.
Kansi v. United States Dep't of Justice, No. 97-2544, 1998 WL 413578 (D.D.C. July 17, 1998).
In a case involving the murderer of two CIA agents, United States District Court Judge James Robertson ruled that Exemption 7(A) permits the FBI to protect its thirteen thousand-page file so long as the requester's criminal conviction is on appeal. Holding that law enforcement records "may be subject to FOIA disclosure even if law enforcement proceedings are pending if . . . their disclosure could not reasonably be expected to cause identifiable harm," Judge Robertson found that in this case disclosure of these records "would damage the preservation and gathering of evidence and endanger witnesses." He then ruled that the "potential for interference with witnesses and highly sensitive evidence that drives the 7(A) exemption . . . exists at least until the plaintiff's conviction is final."
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