Vol. VII, No. 2
Significant New Decisions
Freeman v. United States Department of Justice, Civil No. 85-0958-A (E.D. Va. Mar. 12, 1986).
In a case which further recognizes the validity of an investigative agency's refusal to either confirm or deny the existence of responsive information under appropriate circumstances, the U.S. District Court for the Eastern District of Virginia has ruled that the FBI properly used such a "Glomarization" response when confronted with a request for "[a]ll documents contained in the informant file of Teamsters president Jackie Presser." Relying on Exemption 7(C)'s personal privacy protections, the Court found that absent Mr. Presser's consent his "interest in non-disclosure of personal privacy information outweighs the public interest in scrutinizing the integrity of the FBI." It further recognized that the public interest in effective law enforcement would be ill-served by undermining the system of confidentiality which safeguards FBI sources from embarrassment, harassment or retaliatory measures. The Court also rebuffed the plaintiff's contention that Exemption 7(C) protection had been rendered inapplicable by the publication of newspaper stories based on anonymous sources which purportedly identified Jackie Presser as an FBI informant. "[M]edia speculation," the Court reasoned, was insufficient to justify the release of any confidential informant information where the FBI had made no "official public disclosure concerning Mr. Presser's alleged relationship with it."
Crooker v. BATF, 789 F.2d 64 (D.C. Cir. 1986).
In a sharp reminder of the need for "requisite specificity" in affidavits supporting Exemption 7(A) claims, the U.S. Court of Appeals for the D.C. Circuit reversed a lower court ruling that had allowed a "blanket" justification for the withholding of records from incarcerated felon and frequent FOIA litigator Michael Crooker, who is currently under investigation "concerning suspected possession of an unregistered machinegun." Pointing to the legislative history of Exemption 7(A), the D.C. Circuit distinguished between "blanket exemptions," which are impermissibly based solely on the status of the file in which records are contained, and "generic determinations" of likely investigatory interference, which are properly based on categories of documents. Accord FOIA Update, Spring 1984, at 3-4. Although ruling that the BATF's "blanket" assertion that the "file at issue involves a legitimate law enforcement investigation" was too general to support its exemption claim, in this case the Court of Appeals reaffirmed that the government need not justify the application of Exemption 7(A) "document-by-document; it may instead do so category-of-document by category-of-document." It concluded by noting that affidavits relying on "generic" determinations must include categories of documents that are "sufficiently distinct" to permit a reviewing court "to trace a rational link between the nature of the document and the alleged likely interference."
M/A-COM Information Systems, Inc. v. HHS, Civil No. 85-3215 (D.D.C. Mar. 4, 1986).
In a case of first impression, U.S. District Court Judge Gerhard A. Gesell has ruled that documents prepared in settlement negotiations between the United States and an opposing party can be protected under Exemption 4. The records at issue were developed by and exchanged between counsel for the Department of Health and Human Services and counsel for Paradyne Corporation, a government contractor, in an effort to settle a debarment action brought against Paradyne. The requester, a commercial competitor of Paradyne's, argued that the records were entitled to no privilege protection. Judge Gesell, however, disagreed, declaring that "it is in the public interest to encourage settlement negotiations in matters of this kind and it would impair the ability of HHS to carry out its governmental duties if disclosure of this kind of material under FOIA were required." He rejected, though, the Government's alternative argument that the records were protectible also under Exemption 5, stating simply that documents exchanged between an agency and an outside party are not "inter" or "intra" agency documents.
AT&T Information Systems, Inc. v. GSA, 627 F. Supp. 1396 (D.D.C. 1986).
In a "reverse" FOIA suit brought by AT&T to prevent GSA from releasing information relating to its successful bid on a federal telecommunications contract, U.S. District Court Judge Louis F. Oberdorfer found that GSA had not acted "arbitrarily and capriciously in determining that release of the contested documents posed no substantial likelihood of competitive injury" to AT&T. Although the scope of judicial review in such cases is ordinarily limited to the administrative record, Judge Oberdorfer in this case considered a GSA declaration because it was "corroborated" by the letters sent to the requester and AT&T during the original decision-making process and therefore was not "a post hoc rationalization." He found GSA's decision to release the contested information, including AT&T's unit prices, to be reasonable in light of the fact that future telecommunications contracts would have different requirements and conditions making it difficult for competitors "to use the released information against [AT&T] in future bids." Moreover, Judge Oberdorfer found "a strong public interest in release of component and aggregate prices in Government contract awards." AT&T has filed a notice of appeal.
Grasso v. IRS, 785 F.2d 70 (3d Cir. 1986).
In a forceful articulation of the legal difference under the FOIA between third-party witness statements and first-party interviews, the U.S. Court of Appeals for the Third Circuit has affirmed a lower court ruling requiring disclosure of an IRS memorandum of an investigatory target's own statement. Pointing out that "[t]he typical Exemption 7(A) situation arises when the documents sought are . . . otherwise 'not in the possession of known or potential defendants,'" the Third Circuit reasoned that the dangers sought to be prevented by Exemption 7(A) are "patently inapplicable" in a case where the requester seeks his own statement. (Interestingly, it reached this result even though it considered only the IRS's argument, as the requester chose not to participate in the appeal.) Although none of the usual rationales for withholding information under Exemption 7(A) -- such as fear of witness intimidation -- was present in this case, the Court of Appeals did leave open the possibility that Exemption 7(A) could conceivably protect a target's statement if it could reveal the direction of a potential investigation.
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