FOIA Update: Significant New Decisions

January 1, 1981
FOIA Update
Vol. II, No. 4

Significant New Decisions

Phillippi v. Central Intelligence Agency, Civ. Action No. 80-1940 (D.C. Cir., June 25, 1981).

In this case, the D.C. Circuit Court held that the FOIA did not require the CIA to disclose documents relating to its efforts to suppress news reports on the Glomar Explorer project. In doing so, it relied on 50 U.S.C. § 403(d)(3) which provides that the "Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."

The court noted that the public record was consistent with two theories: (1) that the press reports were generally true, and (2) that they reflected a CIA fallback story for the Glomar project. Because the documents would reveal which theory was true they are protected under FOIA. Records of conversations between the then-CIA Director and members of the media about the Glomar Explorer were protected because the press might not have published everything it knew; because without the documents foreign agents may not know the source of information; and because even if the reports were true, public confirmation would adversely affect foreign relations.

Regarding the possibility that the CIA might have used the press to float a false cover story, the court said: "Without the ability to engineer controlled leaks of disinformation, the CIA would be deprived of the ability to disseminate fallback cover while simultaneously protecting it."

Washington Post Company v. U.S. Department of State, 647 F.2d 197 (D.C. Cir. 1981)

The fact of citizenship is not highly personal or intimate information according to the D.C. Circuit Court, and therefore, citizenship records are not protected under Exemption 6 of the Freedom of Information Act.

This is the view of the court in Washington Post v. U.S. Department of State. The case is a continuation of the D.C. Circuit's line of decisions on the threshold question of what constitutes a "similar file" under 5 U.S.C. § 552(b)(6). The crux of the test to determine whether Exemption 6 may be used is that material must be contained in "personnel," "medical," or "similar files" and disclosure must constitute a clearly unwarranted invasion of personal privacy. In this case, in which a newspaper sought records which would indicate whether two persons now living in Iran hold U.S. passports, the State Department attempted to withhold data, similar to that in "personnel" files. Rejecting this, the court said citizenship is not such a highly personal fact that it constitutes a "similar" file. Therefore, there is no need to balance the private and public interests as required by the second part of the test and no evidence considered to show what would happen to individuals living in Iran and holding American passports.

A petition for certiorari has been authorized.

Fund for Constitutional Government v. National Archives and Records Service, Civ. Action Nos. 79-2047 and 79-2084 (D.C. Cir. June 23, 1981).

This case resulted from an attempt to use FOIA to obtain investigatory documents generated in the course of investigations by the Watergate prosecution force. The D.C. Circuit Court's resulting opinion offers favorable precedents in two areas of FOIA law.

First, the court agreed with the government's claim that Exemption 7(C) protects information which would reveal investigations of possible misconduct by persons who were not subsequently indicted or prosecuted or which would reveal information about persons who were not even under investigation.

The holding further recognizes that government officials are entitled to Exemption 7(C) protection in some circumstances.

The decision also supports the withholding of information that tends to reveal matters occurring before a grand jury. In this section of the opinion, the D.C. Circuit Court firmly declared that Rule 6(e) of the Federal Rules of Criminal Procedure (the grand jury rule) is a statute within the meaning of FOIA Exemption 3. Judge Aubrey Robinson of the District Court of the District of Columbia, reached a similar conclusion May 13, 1981, in the Piccolo case. See Piccolo v. Department of Justice, Civ. Action No. 80-2315 (D.D.C. May 13, 1981).

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