FOIA Update: Significant New Decisions

January 1, 1986
FOIA Update
Vol. VII, No. 1

Significant New Decisions

Akron Standard Division of Eagle-Picher Industries v. Donovan, 780 F.2d 568 (6th Cir. 1986).

In a troubling decision restricting the coverage afforded by Exemption 7(C), a divided panel of the Sixth Circuit Court of Appeals has refused to protect candid discussions in an OSHA investigatory report that "could be interpreted to reflect unfavorably" upon a "whistleblowing" former employee of the requester. The panel majority strangely viewed Exemption 7(C) as protecting only information involving "'intimacy' or where revelation . . . might subject the party to 'physical danger' . . . or to 'potential retribution.'" Further, even though the subject of the request was a relatively low-level company employee, it oddly analogized his situation to that of Exemption 6 precedents which had refused "to shelter substandard performance" of high-level federal employees. Despite a vigorous dissent on this issue, the panel also concluded that the fact that the employee's performance was at issue in a public proceeding left "little remaining" to be protected.

On a separate issue, the court of appeals also refused to follow the thrust of L&C Marine Transport, Ltd. v. United States, 740 F.2d 919, 925 (11th Cir. 1984), and held that employee-witness statements could not be protected under Exemption 7(D) where the agency had inadvertently disclosed those identities, even though this would permit the requester to connect the individuals who gave statements to the content of their statements. A petition for rehearing en banc on both issues is pending.

United Technologies Corp. v. NLRB, 777 F.2d 90 (2d Cir. 1985).

Ignoring the adverse minority ruling of Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 986 (9th Cir. 1985), reh'g en banc denied, No. 82-4719 (9th Cir. May 1, 1985), the U.S. Court of Appeals for the Second Circuit has specifically rejected any narrow "potential witness" exception to Exemption 7(D) protection. At issue was the name of an employee who gave the NLRB information in confidence about a labor dispute, even though he "could have been called or might yet be called as a witness" (emphasis in the opinion). In upholding Exemption 7(D)'s applicability to such a source, the Second Circuit held that "the proper interpretation of the term 'confidential source' includes an informant who is promised or reasonably expects confidentiality unless and until the agency needs to call him as a witness at trial." Noting further that the requester "should not be permitted to obtain [indirectly] what Exemption 7(D) does not entitle it to obtain directly," it extended Exemption 7(D) protection to the NLRB agent who received the information, to preclude the requester from questioning him. The court of appeals additionally refused to find that the NLRB had waived the exemption's protection in releasing the identities to counsel for the labor union, concluding that "the privilege belongs to the beneficiary of the promise of confidentiality and continues until he or she waives it."

Wolfe v. HHS, Civil No. 85-1033 (D.D.C. Nov. 20, 1985).

In a decision with potentially far-reaching import, U.S. District Court Judge John H. Pratt has ruled that agency records which reveal the "status" of proposed regulations are not protected by the deliberative process privilege under Exemption 5. Specifically at issue was a log indicating the date that action on certain regulations had been completed by the Food and Drug Administration, and also their status as they were pending review by either the Secretary of Health and Human Services or the Office of Management and Budget. Judge Pratt characterized the information contained in the log as purely factual in nature and, relying on Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980), he ordered its disclosure. In so ruling that a "simple request for the status of a pending regulation does not implicate what is or is not being recommended" (emphasis in the opinion), Judge Pratt refused to regard the log as a protectible key element of the FDA's deliberative process, and he rejected as "speculation" the government's fears that disclosure of such logs would open up agency decisionmakers to harassment from interested parties who would lobby them to make particular or hasty decisions. The Solicitor General has authorized an appeal; pending its outcome, this decision is not being followed.

Gulf Oil Corp. v. Brock, 778 F.2d 834 (D.C. Cir. 1985).

In a "reverse" FOIA suit brought by Gulf Oil seeking to prevent the Department of Labor from releasing its 1973 affirmative action plan, the D.C. Circuit reversed a lower court decision which had permanently enjoined disclosure of that plan as well as all "substantially similar" documents. The D.C. Circuit held that the injunction order was moot as to the 1973 plan because the FOIA requester had withdrawn its request after experiencing eleven years of litigation delays. It also found that intervening events during those eleven years -- particularly changes in FOIA case law, including the Supreme Court's decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), and the corresponding changes in the agency's regulations -- had "removed the [case's] ripeness with respect to the alleged 'similar' documents," thereby precluding judicial review. Finally, the court of appeals declared that the permanent injunction was overbroad because it forever forbade agencies "from releasing any information in any affirmative action plan" (emphasis in the opinion), which was an improper grant of prospective relief.

Pennsylvania Department of Public Welfare v. HHS, 623 F. Supp. 301 (M.D. Pa. 1985)

In an opinion significant as the first thorough judicial analysis of the attorney work-product privilege under Exemption 5 since the Supreme Court's decision in FTC v. Grolier, Inc., 462 U.S. 19 (1983), U.S. District Court Judge R. Dixon Herman has ruled that "with regard to the material appropriately withheld pursuant to the work-product privilege, release of segregable factual information is not required." Judge Herman found that the factual discussions contained in the eleven work-product documents before him were fully protected from disclosure under Exemption 5 because, under Rule 26(b)(3) of the Federal Rules of Civil Procedure, factual material prepared by a party "in anticipation of litigation" is discoverable only upon a showing of substantial need. "Under the FOIA, then," he continued, "such factual material is exempt from disclosure, even if segregable, because it is not 'normally' or 'routinely' discoverable in a civil context." Accord FOIA Update, Fall at 1984, at 6. He concluded by specifically contrasting the breadth of this privilege with that of the deliberative process privilege, which generally does not protect pure facts.

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