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FOIA Update: Significant New Decisions

FOIA Update
Vol. XV, No. 3

Significant New Decisions

McCutchen v. HHS, 30 F.3d 183 (D.C. Cir. 1994).

In an important decision protecting the privacy rights of individuals exonerated from accusations of professional wrongdoing, the Court of Appeals for the District of Columbia Circuit has reversed a district court decision that would have required the release of the names of private-sector and federally employed scientists who were exonerated of allegations of scientific misconduct. The requester sought a list of all closed investigations -- consisting of "plagiarism, fabrication of research results, and similar breaches of academic integrity" -- undertaken by the National Institute of Health's Office of Scientific Integrity. The agency released the list, but where it had made no finding of wrongdoing, it deleted pursuant to Exemption 7(C) the names of the investigated scientists. Surprisingly, the district court ordered the names of the cleared scientists released, finding that "the privacy interest in one's identity is not nearly so strong when one's professional activities, rather than matters concerning personal conduct, are at issue." The Court of Appeals reversed, ruling that while these allegations "may not be prosecutable offenses, they carry a stigma and can damage a career" by "reduc[ing] a scientist's chances of securing grants or obtaining tenure." It went on to rule that the scientists' "substantial" privacy interests in remaining anonymous outweighed the "negligible" public interest in disclosure, noting that "[a] mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not create a public interest sufficient to override the privacy interests protected by Exemption 7(C)."

Computer Professionals for Social Responsibility v. United States Secret Serv., No. 93-0231 (D.D.C. July 1, 1994).

Finding a "breakup" of a computer "hackers" meeting at a shopping mall by local police and mall security personnel unrelated to an ongoing Secret Service investigation of telephone fraud, United States District Court Judge Louis F. Oberdorfer held that Exemptions 7(C) and 7(D) were not proper bases for withholding documents about the incident. Observing that the meeting took place in "plain view," that several participants "executed privacy waivers" and that the Secret Service "has not suggested that the meeting . . . is the object of any criminal investigation," he rejected the Exemption 7(C) withholdings, stating that the "mere fact that defendant has maintained materials . . . . does not mark participants in the meeting with the 'stigma' of being associated with a criminal investigation." With respect to Exemption 7(D), the Secret Service attempted to prove an implied promise of confidentiality by declaring that it had "recently contacted" its source, and that "the source understood the information to have been provided on a confidential basis." Rejecting this evidence as a "post hoc rationalization," Judge Oberdorfer ruled that because the agency offered no proof of an "implied promise of confidentiality at the time the source provided the information," the Exemption 7(D) claim "does not survive Landano." The Secret Service has filed a notice of appeal.

GC Micro Corp. v. Defense Logistics Agency, 33 F.3d 1109 (9th Cir. 1994).

Emphasizing the close scrutiny an agency must give to business submitters' claims of substantial competitive harm, the Court of Appeals for the Ninth Circuit reversed a district court Exemption 4 nondisclosure order which had protected composite subcontractor data. The requester sought access to Standard Forms 294 submitted by three large defense contractors which contained consolidated data on each contract showing the extent of small disadvantaged business subcontracting. Although the forms did not include a breakdown of the "subject matter of the prime contract or subcontracts, the number of subcontracts, the items or services subcontracted, or the subcontractors' locations or identities," the agency claimed on behalf of its contractors that disclosure would give competitors "a roadmap of the corporations' subcontracting plans and strategies." Finding that the "subcontracting amounts reveal[] little of the factors involved in deriving those numbers," the Ninth Circuit held that Exemption 4 was inapplicable because the "data is made up of too many fluctuating variables for competitors to gain any advantage from the disclosure of the SF 294's."

Painting Indus. Mkt. Recovery Fund v. United States Dep't of the Air Force, 26 F.3d 1479 (9th Cir. 1994).

Following the lead of the Courts of Appeals for the D.C. and Second Circuits, the Ninth Circuit has held that Exemption 6 protects the names and addresses of employees in certified payroll records required under the Davis-Bacon Act to be submitted on federal construction projects. Recognizing that it "must evaluate both the public benefit and the potential invasion of privacy by looking at the nature of the information requested and the uses to which it could be put if released to any member of the public," the Court found that disclosure of the employee data would likely lead to "the use of the list by marketers and a concomitant invasion of the workers' right to be let alone." On the public interest side of the balance, the Court took a novel approach to the "derivative use" controversy, ruling that a "derivative" public benefit that merely requires tabulation of data released under the FOIA or further research by the requester is as cognizable under the FOIA as a "direct" public benefit. When, however, the additional step requires direct contact with the individuals whose privacy is at issue, as in this case, the public benefit is "inextricably intertwined with the invasions of privacy those contacts will work."

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Updated August 13, 2014