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FOIA Update: Significant New Decisions

FOIA Update
Vol. III, No. 2

Significant New Decisions

Crooker v. Bureau of Alcohol, Tobacco and Firearms, No. 80-1278 (D.C. Cir., Dec. 8, 1981) (en banc).

In this case, the U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, established a two-part test for determining whether law enforcement manuals are exempt from disclosure under Exemption 2: (1) the document must meet the standard of "predominant internality," and (2) disclosure of the document must "significantly risk circumvention of agency regulations or statutes."

At issue in Crooker were certain portions of a BATF surveillance training manual. After a review of the legislative history and case law on Exemption 2, the D.C. Circuit adopted the House Report version of the exemption, determining that Congress intended it to be used to withhold "those internal matters not the subject of legitimate public interest." Under this view, it found the part of the BATF manual at issue to fall within Exemption 2.

The court of appeals emphasized that the "critical considerations" in this case were that the manual "is used for predominantly internal purposes; it is designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques; it involves no 'secret law' of the agency; and it is conceded that the public disclosure would risk circumvention of agency regulations."

This en banc decision somewhat clarifies the law in the District of Columbia Circuit by specifically rejecting almost all of the rationale (and by implication the holding as well) of the D.C. Circuit's previous decision in Jordan v. U.S. Department of Justice, 591 F.2d 753 (D.C. Cir. 1978) (en banc). Jordan held that prosecutorial guidelines could not be withheld under Exemption 2 and, in dicta, strongly suggested that law enforcement manuals were similarly nonexempt.

Pratt v. Webster, No. 81-1907 (D.C. Cir., Jan. 22, 1982)--reversing 508 F. Supp. 751 (D.D.C. 1981).

In this case, the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court's holding that documents generated by the FBI's counterintelligence program ("COINTELPRO") failed to satisfy the threshold "law enforcement purposes" requirement of Exemption 7. Although the court of appeals observed that certain of the documents concerning the Black Panther Party involved illegal FBI practices, it found that the records "derived at least in part from a purpose to enforce and prevent violations of the criminal laws."

While the D.C. Circuit thus held that these particular records were compiled for a law enforcement purpose, it declined to apply the broad "agency rule" adopted in Kuehnert v. FBI, 620 F.2d 662 (8th Cir. 1980), and Irons v. Bell, 596 F.2d 468 (1st Cir. 1979). The Eighth and First Circuits there adopted the rule that a document generated by a law enforcement agency such as the FBI is almost automatically deemed to be an investigatory record compiled for law enforcement purposes within the meaning of Exemption 7.

The court of appeals decided in Pratt to adopt a more probing standard for claims of "law enforcement purposes" made by criminal law enforcement agencies, one consisting of two requirements: (1) that the agency's investigatory activities at issue must be related to the enforcement of federal laws or to the maintenance of national security, and (2) that "the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least 'a colorable claim' of its rationality." The Department of Justice has filed a petition for rehearing on this issue.

Stein v. Department of Justice, 662 F.2d 1245 (7th Cir. 1981).

In this decision, the U.S. Court of Appeals for the Seventh Circuit had occasion to focus upon two important issues surrounding the national security exemption, 5 U.S.C. § 552(b)(1). Concerning the standard of review, the Seventh Circuit held that "Congress did not intend that the courts would make a true de novo review of classified documents, that is, a fresh determination of the legitimacy of the classification of each classified document." Instead, the courts are only to require further agency submissions if the affidavits initially reviewed are found insufficient. The court of appeals observed that such review certainly furthers the purposes of the FOIA because the very "prospect of having to justify its classification decisions before a neutral arbiter causes a more thorough and objective presubmission review by the agency than would otherwise be the case."

With respect to the substantive standards for classification, the court of appeals rebuffed the plaintiff's assertion that certain of the information at issue could not be classified because it had in fact been discussed in newspaper articles. It held that the status of classified documents should not be affected by public speculation about their contents, even if such speculation is accurate. Forcing official confirmation of matters only surmised by the press, the court of appeals concluded, might well cause foreign governments to take action that otherwise would not be taken.

Pies v. Internal Revenue Service, No. 79-2303 (D.C. Cir., Nov. 6, 1981)--reversing 484 F. Supp. 930 (D.D.C. 1979).

The U.S. Court of Appeals for the District of Columbia Circuit has ruled that Exemption 5 protects unpublished IRS draft regulations and related memoranda interpreting a repealed IRS Code section. The drafts did not represent the agency's "working law," the D.C. Circuit held, despite their partial incorporation into related regulations.

The district court had found that the drafts constituted the "final work product" of the agency and therefore should be disclosed. The court of appeals reversed, however, because the drafts had never obtained "official sanction as [an] IRS interpretation or statement of policy," nor had they ever been distributed, even within the agency.

"A decision holding otherwise would be to rule that all similar documents and memoranda that are used as research tools by attorneys in the agency, even though never finalized nor approved to reflect agency policy, would be subject to release to the public," the court of appeals stated. It further observed that such documents could mislead the public.

In contrast with the materials at issue in this case, the court of appeals noted that documents distributed throughout an agency which embody the agency's final position and comprise a part of the administrative history of approved regulations are subject to mandatory disclosure.

Miller v. Bell, 661 F.2d 623 (7th Cir. 1981)--reversing 483 F. Supp. 883 (N.D. Ill. 1979).

The genesis of this case was the plaintiff's request for all documents relating to his complaint to the FBI that someone had wiretapped his telephone. Dissatisfied with the FBI's finding of no criminal conduct, and searching for documentary support for a possible civil suit, Miller brought an action under the FOIA. The district court held that the FBI could not invoke Exemption 7(D) for all of the confidential source information in Miller's files because it had not shown sufficient reasons to justify findings that implied assurances of confidentiality had been given to the sources. It also ruled against the FBI on Exemption 7(C) finding the privacy interests of FBI special agents and third parties mentioned in the files to be insubstantial when measured against the public interest in plaintiff's "watchdogging" of the FBI and his pursuit of a remedial lawsuit.

In reversing the lower court on each of these issues, the U.S. Court of Appeals for the Seventh Circuit recognized the sensitivity of the interests protected by Exemptions 7(C) and 7(D) in FBI criminal investigations. Regarding Exemption 7(D), the court of appeals held: "Unless there is evidence to the contrary in the record, we believe such promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation." The court of appeals found that such a holding is necessary to protect both the individuals interviewed in this case as well as the efficacy of future FBI criminal investigations.

The court of appeals also completely rejected the lower court's Exemption 7(C) analysis, finding that neither Miller's "watchdog" activities nor his purported need for discovery for his private lawsuit were the sort of factors which warrant the invasion of third parties' privacy. The court of appeals observed in this connection that the litigious and complaining nature of the plaintiff would itself likely lead to the sort of harassment from which FBI special agents and third parties deserve protection.

Doyle v. Department of Justice, No. 80-2121 (D.C. Cir., Nov. 6, 1981-- 494 F. Supp. 842 (D.D.C. 1980).

If an award were to be given to the most audacious FOIA plaintiff, John Christopher Doyle probably would send an emissary to claim it. Doyle was convicted in 1965 of a Securities Act violation, but jumped bail and fled from the United States to avoid imprisonment. From his new home in the Republic of Panama, he then sought records from the Department of Justice concerning his conviction. The Department refused to process his request and Doyle, through his attorney, brought a FOIA suit, arguing that the "any person" language of 5 U.S.C. § 552(a)(3) overrode his fugitive status. After observing that "[T]he hands of this plaintiff are sullied with his contempt for the tribunal whose assistance he is seeking to invoke," the district court dismissed the case under its broad equitable power to withhold access to the courts from those who flout the law. In a per curiam opinion, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the dismissal, stating that so long as a fugitive continues to evade federal authority, "it is the general rule that he may not demand that a federal court service his complaint."

In a related FOIA case, Javelin International Ltd. v. Department of Justice, Civil Action No. 81-1111 (D.D.C., Dec. 9, 1981), the district court found that the ostensible plaintiff (Javelin) was actually acting as Doyle's agent. It accordingly dismissed the suit for the reasons stated above. Although Javelin's president denied that its request was made on behalf of Doyle, the district court was not persuaded. It noted that the two requests were identical, that Javelin's request was made only 11 days after Doyle's request was turned down, that the same counsel represented both parties and that Doyle was the largest individual shareholder of Javelin, as well as its founder, past president, director and chairman of its executive committee. The district court concluded by stating that to hold other than that Javelin was acting as Doyle's agent "would be blinking reality."


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Updated December 9, 2022