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FOIA Update: Significant New Decisions

FOIA Update
Vol. VI, No. 1

Significant New Decisions

Dismukes v. Department of the Interior, Civil No. 84-0757 (D.D.C. Dec. 19, 1984).

Resolving a question of first impression, D.C. District Court Judge Joyce Hens Green has held that the FOIA does not require an agency to provide information in the particular format specified by a requester. Mr. Dismukes sought access to a computer tape listing the participants in oil and gas leasing lotteries held by the Department of Interior. In response, Interior offered the information on microfiche cards, the format in which it was routinely made available to the public, but Dismukes insisted on receiving it in computer tape form. Relying particularly on FBI v. Abramson, 456 U.S. 615, 631-32 (1982), where the Supreme Court focused upon "information" as opposed to the records containing it, Judge Green concluded that the resolution of FOIA disputes logically turns not upon the format of what is requested, but rather on the nature of the information and the effects of its disclosure. Rejecting Dismukes' claim that Interior's choice of microfiche cards was "a deliberate tactic to hinder him," Judge Green noted that more people were purchasing the information on microfiche than, otherwise, and that Interior's release of the information in the form most useful to the general public "does not erect unreasonable barriers to plaintiff's access to [it]." Accordingly, she held that the agency had met its obligation under the FOIA to "provide responsive, nonexempt information in a reasonably accessible form."

Washington Post Co. v. HHS, Civil No. 80-1681 (D.D.C. Feb. 8, 1985).

In a decision of significant precedential value on two inter-related issues, U.S. District Court Judge Harold H. Greene ruled that documents listing financial interests held by individual part-time consultants to the National Cancer Institute, which are protected by the civil discovery privilege for "confidential reports," are therefore likewise protected from FOIA disclosure as "privileged" financial information under Exemption 4. Judge Greene noted that these very documents had been held privileged from civil discovery in Association for Women in Science v. Califano, 566 F.2d 339, 346 (D.C. Cir. 1977), but that the D.C. Circuit Court of Appeals (in a 1982 decision in this case published at 690 F.2d 252) had nevertheless suggested that the documents' privileged status could not protect them under the FOIA. On remand, however, Judge Greene field that more recent Supreme Court reasoning requires parallel protection:  "For the reasons stated in [United States v. Weber Aircraft Corp., 104 S. Ct. 1488 (1984)], the policies underlying this discovery privilege would be thwarted if a party could obtain through the FOIA information not discoverable under the Federal Rules." In addition to being the first FOIA decision to apply the "confidential reports privilege," this decision is also the first to apply Exemption 4 exclusively on a privilege basis.

Shaw v. FBI, 749 F.2d 58 (D.C. Cir. 1984).

In another FOIA case concerning FBI investigative records on the assassination of President John F. Kennedy, the U.S. Court of Appeals for the D.C. Circuit held that photographs taken by a foreign law enforcement agency at a public demonstration qualify under the second clause of Exemption 7(D) as "confidential information furnished only by [a] confidential source" in the course of a criminal investigation. Overturning the lower court's holding that the photographs were "public" rather than "confidential," the D.C. Circuit held that the "fact that an event occurred in public does not make it public in the relevant sense of 'generally known.'" That any number of 7 people could have taken these photographs did not nullify Exemption 7(D) protection, it reasoned, because the phrase "information furnished only by the confidential source" most assuredly cannot mean 'obtainable only from the confidential source.'" The court of appeals also rejected the requester's contention that the source could not be "confidential" where the FBI had previously disclosed information from that very source, declaring that "[d]isclosure of one piece of information received from a particular party -- and even the disclosure of that party as [a] source -- does not prevent that party from being a 'confidential source' for other purposes."

General Electric v. NRC, 750 F.2d 1394 (7th Cir. 1984).

In a "reverse" FOIA suit involving a request to the Nuclear Regulatory Commission for a report generated by General Electric Co. that criticized the design of GE's own nuclear reactors, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's ruling that the report was an "agency record," but remanded the case to the NRC due to the serious inadequacy of the agency's administrative record on the issue of competitive harm under Exemption 4. The Seventh Circuit's determination on the agency record issue turned simply on the fact that the report "was demanded and received by the agency for use in a formal proceeding." However, as to the report's disclosability, the court of appeals pointedly noted that the NRC had failed to provide any specific reason for rejecting GE's claim of competitive harm, which it said "validates congressional criticisms of the excessive casualness displayed by some agencies in resolving disputes over the application of exemption 4."

Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982 (9th Cir. 1985).

Applying a rigid interpretation of Exemption 5's "inter-agency or intra-agency" threshold, the U.S. Court of Appeals for the Ninth Circuit has refused to accord attorney work-product protection to employee witness statements compiled by NLRB investigators in an unfair labor practice investigation. The Ninth Circuit, which last year was reversed by the Supreme Court on a similar issue involving witness statements in United States v. Weber Aircraft Corp., 104 S. Ct. 1488 (1984), recognized that "if an internal document would be immune from civil discovery, it is similarly protected . . . under the FOIA." However, it narrowly construed Weber Aircraft by holding that the presumably privileged witness statements before it failed to qualify under Exemption 5 because they were not "internal agency documents or documents prepared by outsiders who have a formal relationship with the agency." In a sharp departure from the majority view, it also refused to protect the witness statements under Exemption 7(D) because the witnesses knew that their names and testimony could be revealed if the investigation led to a formal hearing. A petition for rehearing is pending.


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Updated December 9, 2022