Vol. VII, No. 4
Significant New Decisions
National Treasury Employees Union v. United States Customs Service, 802 F.2d 525 (D.C. Cir. 1986) -- affirming 602 F. Supp. 469 (D.D.C. 1984).
ln the first appellate decision to apply the Exemption 2 protection recognized in Crooker v. BATF, 670 F.2d 1051, 1074 (D.C. Cir. 1981) (en banc), to records entirely unrelated to law enforcement, the D.C. Circuit has affirmed the Customs Service's withholding of its "crediting plans." The court of appeals noted that these plans "in effect constitute a roadmap" designed to assist agency personnel in evaluating the qualifications of agency job applicants, and that each plan "outlines the experience level and the demonstrated abilities required for a particular position" and thus sets forth precise standards by which to measure qualifications. Observing that some applicants might "embellish -- or perhaps even fabricate -- their backgrounds to suit the appropriate crediting plan," it found that disclosure would "create[ ] a significant risk that the [agency's] applicant evaluation program would be seriously compromised." Although the Customs Service could not identify a specific regulation or statute that would be thwarted by disclosure, the D.C. Circuit nevertheless held that the "risk of circumvention" requirement of Crooker was satisfied where, as here, release would render the documents "operationally useless." It declared that it was "entirely consistent with sound policy objectives and common sense to conclude that Congress did not intend to mandate the release of evaluative criteria that are commonly treated as confidential by personnel departments in both the public and private sectors."
Bevis v. Department of State, 801 F.2d 1386 (D.C. Cir. 1986).
In the first appellate decision to recognize the applicability of Exemption 7(A) to investigatory records compiled for foreign law enforcement purposes, the D.C. Circuit has ruled that the potential for future proceedings in El Salvador against those responsible for the murders of U.S. citizens is sufficient to prevent the release of FBI investigative records compiled at the request of the Salvadoran government. Relying on the "logic" as well as the language of the FOIA, the court of appeals found "no distinction between foreign and domestic enforcement purposes" under Exemption 7(A), holding also that even though some of those involved were no longer subject to prosecution, the prospect of further proceedings against some suspects was sufficient for exemption protection. However, reemphasizing its admonition in Crooker v. BATF, 789 F.2d 64, 67 (D.C. Cir. 1986), that "generic" categories of documents withheld under Exemption 7(A) must "allow[ ] the court to trace a rational link between the nature of the document and the alleged likely interference," it remanded the case for the FBI to reformulate its "generic" categories into functional groups and describe how release could cause interference. Finally, the FBI was instructed to ascertain, "to the extent feasible," whether any data in its files had been made public in Salvadoran court proceedings.
Greenberg v. FDA, 803 F.2d 1213 (D.C. Cir. 1986).
In a curious procedural twist, the U.S. Court of Appeals for the D.C. Circuit, acting on the basis of the death of one of its members, vacated its previous decision which had upheld the protection of a customer list under Exemption 4 (see FOIA Update, Fall 1985, at 5), appointed a new judge to reconsider the case and then, in a split decision by the reconstituted panel, reversed and remanded the case on procedural grounds. The majority of the new panel held that the requester had shown the existence of a genuine issue of material fact, i.e., whether disclosure of the customer list would cause competitive harm to its submitter, and that summary judgment was therefore in appropriate. Proclaiming that summary judgment is a "drastic step which should not be taken lightly" it held that the requester had sufficiently placed in question certain factual aspects of the economic injury threatened by disclosure. In a strong dissent based upon his original majority opinion, Circuit Judge Robert H. Bork declared that it "strains credulity to argue that [the submitterl would go to such enormous trouble and expense to safeguard its customer list if that information were not extremely valuable." A petition for rehearing en banc has been filed.
Dirksen v. HHS, 803 F.2d 1456 (9th Cir. 1986).
Recognizing that release of Blue Cross claims processing guidelines would permit the circumvention of the Health Care Financing Administration's payment review procedures, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that the "auditing function" of the guidelines "puts them in the category of exempt law enforcement material" protected under Exemption 2. It characterized the guidelines as "an internal claims processing blueprint," and noted that they enable Blue Cross to "uniformly and expeditiously" process millions of Medicare claims annually for HCFA. Observing that the guidelines determine "which claims are to be automatically granted, denied, or reviewed in more detail," the Ninth Circuit found that their disclosure would enable medical care providers to easily "fit their claims into the 'automatically granted' category." Thus, it concluded, release of the guidelines to the requester, a physician who regularly files Medicare claims, would cause them to "lose the utility they were intended to provide."
Falzone v. Department of the Navy, Civil No. 85-3862 (D.D.C. Oct. 16, 1986), reconsideration denied (D.D.C. Nov. 21, 1986).
In another decision on the disclosability of "mailing list" information, U.S. District Court Judge Charles R. Richey has held that the names and mailing addresses of commissioned naval officers scheduled for reassignment to Pensacola, Florida -- but currently serving overseas or with classified, sensitive or deployable units -- are protectible under Exemption 6. Judge Richey found that the plaintiff's intended use of the list -- "to identify potential real estate clients" -- hardly weighed in favor of disclosure. On the other side of the balance, though, he found "substantial" privacy interests to be protected, not only against "unwanted solicitations," but because the subjects of the request "are potential targets of threats and terrorist attacks." In denying the requester's motion for reconsideration, Judge Richey specifically distinguished Hopkins v. Department of the Navy, Civil No. 84-1868 (D.D.C. Feb. 5, 1985) (finding no protectible privacy interest in names and duty stations of marines currently stationed at Quantico, Virginia), saying that the "potential for threats and terrorist attacks against servicemen stationed at Quantico is small in contrast to the officers whose names and addresses are being withheld here."
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