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FOIA Update: Significant New Decisions

FOIA Update
Vol. XI, No. 1

Significant New Decisions

Quarles v. Department of the Navy, 893 F.2d 390 (D.C. Cir. 1990).

In a decision confronting the difficult question of the disclosability of cost estimates, the D.C. Circuit Court of Appeals has found them protectible under Exemption 5. In anticipation of deploying a new battleship group at a single port, the Navy commissioned a special study to evaluate seven proposed sites based on several criteria including cost. Applying a traditional deliberative process analysis under Exemption 5, the D.C. Circuit rejected the argument that the cost estimates constituted factual material of the sort required to be disclosed. The D.C. Circuit observed that although "[n]umbers have a surface precision that may lead the unsophisticated to think of them as fixed," cost estimates which "derive from a complex set of judgments" could hardly be deemed conclusive. Rather, it concluded, "[t]hey partake of just that elasticity that has persuaded courts to provide shelter for opinions generally."

Truitt v. Department of State, No. 88-5086 (D.C. Cir. Feb. 27, 1990).

In a decision emphasizing the necessity of a thorough search for records, the D.C. Circuit Court of Appeals has held that an agency cannot use the FOIA's "reasonably describes" requirement as an excuse for an overly narrow reading of the scope of a request. Truitt initially sought "all related documents" to post-World War II Anglo-American involvement in Albania, and followed up this request by specifying two particular files. Later, he discovered a third file from which related documents had been removed and he asked that this file be processed also, but the State Department refused, arguing that it had searched the two files previously sought and that he had not reasonably described these records. Saying that even if Truitt's original request was too vague to trigger a search of this file previously, the D.C. Circuit ruled that his third request put the agency "under a duty to conduct a reasonable search for the removed items." "Having learned of [his] interest in the documents," it held, the agency "could not justify its inertia simply on the claim that Truitt had not manifested it earlier."

Patterson v. FBI, 893 F.2d 595 (3d Cir. 1990).

In a case involving records concerning the activities of a sixth-grade elementary school student, the Third Circuit Court of Appeals has upheld the district court's procedures for determining whether the FBI had properly classified the requested records. Todd Patterson had come to the attention of the FBI because of his correspondence seeking information from 169 foreign countries in order to compile an encyclopedia for a school project. The district court, after reviewing an in camera affidavit and conducting an in camera examination of the documents, held that the records were protectible under Exemption 1 because they concerned "intelligence sources and methods," the disclosure of which "reasonably could be expected to cause damage to the national security." The Third Circuit found that the interrogatory answers, public affidavits and redacted documents constituting the FBI's "public submissions represent a good faith effort . . .to provide as much access to the information as possible." After according "'substantial weight' to the agency's affidavit" and conducting its own in camera review, it concluded that the district court's exemption determination "had an adequate factual basis."

Critical Mass Energy Project v. NRC, Civil No. 84-1943 (D.D.C. Mar. 2, 1990).

Following a remand from the D.C. Circuit Court of Appeals, U.S. District Court Judge Thomas Penfield Jackson issued an opinion strongly reminiscent of his original decision upholding the NRC's use of Exemption 4 to protect reports voluntarily given to the agency by the INPO, a private, non-profit consortium of utility companies. Originally, Judge Jackson approved the agency's use of the "impairment prong" of Exemption 4, finding that it was "preferable to have the INPO reports furnished to the NRC voluntarily, rather than delivered up under compulsion in circumstances less conducive to candor, accuracy, and timeliness." After the D.C. Circuit remanded the case for development of a better factual record, Judge Jackson upheld the NRC's action once again, this time on the basis of the "third prong" of Exemption 4. The NRC declarations were found to "evince a symbiosis in the relationship between NRC and INPO" which would be damaged if the reports were disclosed. If the NRC were required to obtain these now-voluntarily submitted reports under some form of compulsion, he found, rather than "collaborators in a quest for optimum industry safety," INPO and NRC would "at best be wary allies, working independently . . . and mistrustful of one another's initiatives." Judge Jackson concluded that Exemption 4 protects against just such "impairment" of the "efficiency and effectiveness" of the agency.

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Updated December 6, 2022