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FOIA Update: Significant New Decisions

FOIA Update
Vol. III, No. 1

Significant New Decisions

Worthington Compressors, Inc., et al. v. Costle, Nos. 80-1010, 80-1011, 80-1012, 80-1013 (D.C. Cir., Aug. 20, 1981).

The Court of Appeals for the District of Columbia Circuit in this case expanded the availability of FOIA Exemption 4 by identifying a new factor to be considered when determining if submitted business material is confidential.

Four manufacturers of portable air compressors who submitted reports on their products to the Environmental Protection Agency (EPA) were the appellants in this case. They requested confidential treatment for their information, but the agency rejected their objections to disclosure on the grounds that the information could be duplicated by anyone with access to the air compressors through "reverse engineering." The manufacturers then sought to enjoin release in the district court. They contended that the information constituted confidential commercial information and should be withheld under Exemption 4. Further, they alleged that the reverse engineering which could be undertaken to determine the design and engineering specifications of their compressors would be so expensive as to be commercially impracticable. The district court below sustained the agency and ordered disclosure.

The court of appeals, however, reversed. In determining whether information is confidential in Exemption 4 cases, the circuit court said it is proper to determine "whether release of the requested information, given its commercial value to competitors and the cost of acquiring it through other means, will cause substantial competitive harm to the business that submitted it." Accordingly, the court concluded, consideration should be given to how costly it would be for a possible competitor to obtain the information through means other than the FOIA and whether FOIA disclosure would constitute a windfall to the requester.

Bast v. U.S. Department of Justice, Nos. 79-2039, 80-1050 (D.C. Cir., Sept. 10, 1981).

This case grew out of a hearing in a previous case. Richard Bast, a private investigator, alleged that U.S. District Judge John Pratt improperly induced a court reporter to expunge a portion of a hearing transcript in the earlier case. Bast then requested access to all FBI documents compiled during the investigation into the allegation. After the FBI released approximately 600 pages of such documents, Bast brought suit challenging all withholdings. With a few exceptions, the district court agreed that the remaining documents were exempt from disclosure.

On appeal, 12 documents remained at issue. The agency asserted that all of the withheld material fell within Exemption 7(C) -- the investigatory records exemption relating to personal privacy. The D.C. Circuit Court of Appeals said that while Exemption 7(C) affords broad privacy rights to "suspects, witnesses and investigators," there still must be a case-by-case balancing of privacy rights against the public interest in disclosure.

After reviewing the documents in camera the court decided that, with one exception, the privacy interest outweighed the public interest. The unique exception is a three sentence passage containing comments by the judge which the circuit court found could be interpreted as revealing a bias. "The public importance of judicial impartiality outweighs the privacy interest in this case," the court ruled in ordering disclosure of that passage. A petition for rehearing has been filed by the Department of Justice.

Brown v. Federal Bureau of Investigation, 658 F.2d 71 (2d Cir. 1981).

In this case, a convicted kidnapper sought access to detailed information from FBI files regarding his kidnaping victim. He argued that the victim had waived her privacy rights by testifying at his trial and that, in any event, he had an overriding need for the information in order to attack his conviction. The Court of Appeals for the Second Circuit found that the requested information was properly withheld under Exemption 6 and rejected the plaintiffs arguments. After finding the requested information to be sufficiently personal to satisfy the "similar files" threshold of Exemption 6, the court of appeals held that the victim's testimony at the trial did not constitute a waiver of "her right to keep private other related matters." Most significantly, the court of appeals found the plaintiff's stated interest in using such information to obtain a new trial to be "too uncertain, indirect, and remote" to overcome the victim's privacy interests in nondisclosure. (A somewhat contrary outcome on this latter point was reached by the Third Circuit Court of Appeals in Ferri v. Bell, published at 645 F.2d 1213, earlier this year, but that decision was vacated on Oct. 23 by the Third Circuit and scheduled for reargument.)

Radovich v. United States Attorney, District of Maryland, 658 F.2d 957 (4th Cir. 1981).

"Confidential" as used in the first clause of Exemption 7(D) does not mean "secret;" rather, it means "given in confidence" or "in trust," the Court of Appeals for the Fourth Circuit made clear in this case.

The court below had found that the information sought by the plaintiff in this case was not protected because it was publicly known that the source had spoken with government prosecutors. Accordingly, said the district court, the identity of the source -- an attorney for an individual involved in the criminal investigation -- was "neither confidential nor at issue." In overruling the district court, the circuit court of appeals concluded that the first clause of Exemption 7(D) serves to protect the attorney's conversations so long as the information was given under an express assurance of confidentiality or in circumstances where such an assurance could reasonably be assumed. Public knowledge of the source's identity is irrelevant, the appellate court found.

The Fourth Circuit also examined the second clause of Exemption 7(D), which the district court has found likewise inapplicable, and construed it broadly as well. The circuit court found that Congress intended to protect all of the information furnished by a confidential source "in the course of a criminal investigation, irrespective of whether the information might have been available from some other source."


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Updated December 9, 2022