FOIA Update: Significant New Decisions

January 1, 1988
FOIA Update
Vol. IX, No. 1

Significant New Decisions

Wolfe v. HHS, 839 F.2d 768 (D.C. Cir. 1988) (en banc).

In an en banc decision written by Circuit Judge Robert H. Bork clarifying the coverage of the deliberative process privilege under Exemption 5, the D.C. Circuit Court of Appeals held that the status of an agency's proposed regulations in the government's internal review process is protectible. Finding that it was "not possible to resolve whether the information is deliberative by characterizing it . . . as merely involving a factual request for dates and titles," the majority refused to "mechanically apply the fact/opinion test" to "facts about the inner workings of the deliberative process itself." It held that disclosure of the "fact of forwarding" a proposed regulation would be the "functional equivalent" of disclosing a favorable recommendation and would cause "hasty and precipitous decision-making" by inappropriately forcing "officials to punch a public time clock." Refusing to weigh the extent of harm from disclosure, it concluded that "[i]t would be impossible for courts to administer a rule of law to the effect that some but not all information about the decisional process may be disclosed without violating Exemption 5."

McClellan Ecological Seepage Situation (MESS) v. Carlucci, 835 F.2d 1282 (9th Cir. 1987).

In the first decision to analyze the new fee waiver provision established by the Freedom of Information Reform Act as it applies to a request from a public interest group, the Ninth Circuit Court of Appeals has ruled that such requesters are not presumptively entitled to fee waivers, but, just like any other requester, must satisfy the statutory standard in order to obtain documents without charge. As a preliminary matter, it held that the requester -- which had sought documents (with a $52,000 estimated fee) concerning water pollution at McClellan Air Force Base -- bears the burden of identifying the public interest to be served by "explain[ing] with reasonable specificity how disclosure will contribute to public understanding" of government operations or activities. In making this determination, it approved the agency's seeking additional information from the requester in the form of twenty-three questions which the court found not to be "burdensome." It held that a fee waiver requester must specifically describe its ability to "understand and process" the requested records, particularly where technical in nature, and how it plans to convey the information to the public.

Washington Post Co. v. Department of State, No. 84-5604 (D.C. Cir. Feb. 5, 1988).

Expressly refusing to defer to the State Department's expertise in assessing the threat of harm to a former Iranian official by disclosing whether he is a U.S. citizen, and refusing to find that such an issue presented a nonjusticiable political question, a divided panel of the D.C. Circuit Court of Appeals ordered a trial to decide the question. Finding the parties' disagreement over the significance of the Exemption 6 privacy interest to constitute "a factual dispute going to the very heart of the case," the panel majority held that summary judgment was improper. Judge Bork sharply dissented, arguing that making a "factual" assessment of the risk of harm from such a disclosure in the "turbulent and volatile nation" of Iran is "wholly unsuited to the capacities of the judicial process." A petition for en banc rehearing is pending.

Payne Enterprises, Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988).

Harshly reminding agencies that courts listen unsympathetically to technical defenses when the FOIA is used "offensively to hinder the release of nonexempt documents," the D.C. Circuit Court of Appeals ordered the entry of a declaratory judgment that the Air Force unreasonably delayed in releasing records. (During the two prior years, Payne made dozens of requests to the Logistics Command, all of which were denied initially and then granted on administrative appeal.) These extreme facts prompted the D.C. Circuit, in an opinion authored by Circuit Judge Harry T. Edwards, to order the district court to "consider the propriety of injunctive relief" to bar withholding of similar records in the future. In rejecting agency objections that the case was moot and not ripe for review, Judge Edwards found that Payne's complaint of "unreasonable agency delay" was not moot, despite the release of all requested records, because of the agency's unlawful practice of regularly releasing certain records only in response to administrative appeals. He found the case ripe for adjudication because it presented a "concrete legal dispute" over a practice that had "'crystallized' sufficiently for purposes of judicial review."

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