FOIA Update: Significant New Decisions

National Sec. Archive v. FBI, No. 88-1507 (D.D.C. Apr. 15, 1993).

Refusing to reconsider his prior ruling, District Court Judge Louis F. Oberdorfer held that an FBI "briefing book" cannot be withheld under Exemption 5's deliberative process privilege. This "briefing book" consisted primarily of 48 possible questions and suggested answers prepared to assist the FBI's most senior counterintelligence expert in responding to questions that might be asked of him by members of Congress in connection with his testimony about the FBI's "Library Awareness" program -- the FBI's investigation of activity by foreign agents in technical libraries across the country. The FBI argued that disclosure would reveal the "'thought processes of the preparer' and would inhibit the use of such briefing books in the future," leaving federal officials testifying before Congress less than fully prepared for all possible areas of inquiry. However, Judge Oberdorfer concluded that because the document did not include "recommendations on how the agency's activities should be described to the general public" and did not relate "to the development of any particular policy," it was not deliberative and thus could not be withheld under the deliberative process privilege. The government has appealed this ruling.

Dickerson v. Department of Justice, 992 F.2d 1426 (6th Cir. 1993).

Determining that the FBI had established that its continuing investigation into the 1975 disappearance of Teamster boss Jimmy Hoffa was a "concrete prospective law enforcement proceeding," and that disclosure could reasonably be expected to interfere with that proceeding, the Sixth Circuit Court of Appeals ruled that Exemption 7(A) protects the FBI's 400-volume investigative file. Focusing on whether "actual enforcement proceedings" could reasonably be expected to be harmed by disclosure of the file, the Sixth Circuit declared that "it does not seem to us that valuable time should normally have to be spent on the preparation and analysis of a Vaughn index [, because] affidavits by people with direct knowledge of and responsibility for the investigation usually ought to suffice." It rejected the requester's demand for a document-by-document index, ruling that the FBI's eight-category "generic" affidavit, supplemented by an in camera review of 335 pages of the file as a "reality check," was sufficient "for [the district court judge] to decide . . . that he had seen all he needed to see in order to make a proper decision."

Norwood v. FAA, 993 F.2d 570 (6th Cir. 1993).

Taking a narrow view of the extent to which Exemption 6 protects "identifying" information and an expansive view of the effort to which an agency must go to prove what is "identifying," the Sixth Circuit held that the FAA may withhold only "names, present and pre-removal locations and addresses, and social security (and other similarly identifying) numbers" from files of air traffic controllers who were reinstated after participating in an illegal strike in 1981. Despite the FAA's argument that the very factual scenarios advanced by the reinstated controllers would render them easily identifiable within the "closely knit, nationwide network of controllers," it found that Exemption 6 "is directed at threats 'more palpable' than mere possibility of identification" and refused to permit the withholding of "any and all fragments of information that might assist a diligent researcher in identifying a person." In an amendment to its opinion, the Sixth Circuit added that "[i]t may be that ... information other than 'those items which "by themselves" would identify the individuals' should be withheld," but it ruled that the FAA's reliance on the "general[ized] claim that 'fragments of information' might be able to 'be pieced together'" so as to identify a controller, "clearly is insufficient to support nondisclosure." On an Exemption 5 issue, the Sixth Circuit followed Martin v. Office of Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987), in reversing the district court's disclosure order and ruling that the FAA properly invoked the attorney work-product privilege for factual matters in case summaries prepared by its attorneys. The government has filed a petition for rehearing en banc.

Cal-Almond, Inc. v. Department of Agric., No. F-89-574 (E.D. Cal. Mar. 17, 1993).

In another twist to an already unusual case, see FOIA Update, Spring 1992, at 11, District Court Judge Edward Dean Price has taken the unprecedented step of ordering an agency to reacquire the records at issue in a FOIA lawsuit. The case was on remand from the Ninth Circuit Court of Appeals, which had confusingly instructed Judge Price to order disclosure of any of the requested information still in USDA's possession while seemingly believing that USDA no longer maintained that information because it had existed in the form of mailing labels used for an election conducted by the agency. In fact, USDA had maintained a copy of the information during the course of its FOIA administrative process, but not for purposes of possible FOIA litigation. Concluding that the Ninth Circuit "was not aware of the sequence of events," Judge Price issued his "reacquisition" order because USDA had returned its remaining copy of the information to its outside submitter four days after it had denied the FOIA requester's administrative appeal. This, he held, violated USDA's own regulation, which provides that "[u]nder no circumstances shall records be destroyed while they are the subject of a pending request[], appeal, or lawsuit under the FOIA." By returning the information, he declared, USDA had taken "action which made it impossible to comply with the ultimate court order in this case."

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