FOIA Update: Significant New Decisions

January 1, 1983
FOIA Update
Vol. IV, No. 1

Significant New Decisions

Washington Post Co. v. Department of State, 685 F.2d 698 (D.C. Cir. 1982).

The Court of Appeals for the D.C. Circuit has held that Exemption 3 does not protect information pertaining to the Department of State's "Emergency Fund" expenditures for its diplomatic and consular services. It found that although specific statutes permit the Secretary of State to account to Congress for these disbursements in secret, they do no provide nondisclosure standards specific enough to satisfy Exemption 3's second proviso. To do so, the court of appeals held, "a statute must set forth more than a standard placing the entire burden of decisionmaking on an administrative officer, checked only by amorphous reference to the public interest." The decision also called into question the continuing vitality within the D.C. Circuit of the principle of Zale Corp. v. IRS, 481 F. Supp. 486 (D.D.C. 1979), which held that "Congressional action, and particularly post-FOIA legislation, may override FOIA, at least in limited circumstances." (Not long after Washington Post was decided though. the Seventh Circuit expressly adopted the Zale rationale in King v. IRS, 688 F.2d 488 (7th Cir. 1982).)

Rather than ordering immediate disclosure, the D.C. Circuit remanded the case to permit the district court to consider other exemptions or to stay disclosure "in response to a strong showing of imminent and demonstrable danger to a compelling national interest" and to allow Congress an opportunity to bring the statutes within the reach of the exemption. Rehearing en banc was denied on Dec. 28 and the Solicitor General is considering seeking certiorari.

Conoco Inc. v. Department of Justice, 687 F.2d 724 (3d Cir. 1982).

Adopting a "common sense" interpretation of the term "intra-agency," the Court of Appeals for the Third Circuit has held that unaddressed and uncirculated handwritten notes located in agency files qualify as "intra-agency" documents under Exemption 5. The Third Circuit followed the practical approach of Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), in which the D.C. Circuit refused to construe "inter-agency" and "intra-agency" as "rigidly exclusive terms," but instead read them as including "any agency document that is part of the deliberative process." In this case, the Third Circuit reasoned that to require disclosure of handwritten notes merely because they lack the words "to file" would be to "rely more on form rather than substance." On an additional issue, the Third Circuit significantly held certain documents exempt under Exemption 7(D) on the basis of an agency affidavit that simply identified the documents and stated that the information contained in them was furnished by a confidential source. "To require more detail," it agreed with the lower court, "would greatly increase the possibility that the source and content of the confidential correspondence be revealed."

Washington Post Co. v. Department of Health & Human Services, 690 F.2d 252 (D.C. Cir. 1982).

In a ruling contrary to the result and reasoning of two of its own precedents, a divided panel of the Court of Appeals for the D.C. Circuit has refused to extend Exemption 6 protection to personal financial information submitted by scientific consultants to HHS, finding that disclosure of the information would not result in a serious privacy invasion. The D.C. Circuit flatly declined to employ the balancing analysis used by it in Association for Women in Science v. Califano, 566 F.2d 339 (D.C. Cir. 1977), in which discovery of virtually identical information in a non-FOIA case was refused on privacy grounds. It did so by relying on the general disclosure philosophy of the Ethics in Government Act, which it considered sufficiently applicable to the information to preclude a finding that disclosure would constitute a "clearly unwarranted" invasion of personal privacy under Exemption 6. Moreover, it accorded only slight weight to the fact that the data was provided under a pledge of confidentiality which was ultimately found to have been limited in nature. Over a vigorous dissent, the court also declined to consider the potential public harm of disclosure, contrary to its pronouncement in Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 n.22 (D.C. Cir. 1981). The case was remanded for a determination of the applicability of Exemption 4.

Weber Aircraft Co. v. United States, 688 F.2d 638 (9th Cir. 1982).

By a two-to-one vote, a panel of the Court of Appeals for the Ninth Circuit has refused to hold that Exemption 5 incorporates the special civil discovery privilege for sensitive information generated during Air Force aircraft accident investigations. In so doing, the Ninth Circuit chose not to follow precedents established on the identical issue in both the Fifth and Eighth Circuits in the mid-1970's. Instead, it adopted a more narrow construction of Exemption 5 based upon its reading of the Supreme Court's subsequent decision in Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979). Over a strong dissent, the Ninth Circuit held that Exemption 5 incorporates only those privileges "explicitly recognized" in its legislative history and that Exemption 5 therefore could not protect the data in question. Rehearing en banc was denied on Dec. 3 and the Solicitor General is considering seeking certiorari.

Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982).

In a unanimous decision, the Court of Appeals for the D.C. Circuit has upheld the National Security Agency's withholding under Exemption 1 of the contents of certain intercepted foreign messages regarding newspaperman Harrison E. Salisbury. Based upon a review of Exemption 1's legislative history, the D.C. Circuit emphasized that courts should defer to the "unique insights" of intelligence agencies in the national security area. Also expressly recognizing "the mosaic-like nature of intelligence gathering," the court of appeals held that NSA's prior release of similar information in a different case "does not mean that the agency must make [such a] disclosure in every case." It further held that no "meaningful portion" of the intercepted foreign messages could be segregated and released without revealing the monitoring of specific communications channels, which would thereby harm the national security. The court of appeals also endorsed the submission of in camera affidavits where particularly sensitive matters are involved and ruled that the exclusion of a plaintiff's counsel from such in camera proceedings is entirely appropriate.

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