FOIA Update: Supreme Court Update

January 1, 1984
FOIA Update
Vol. V, No. 1

Supreme Court Update

On March 5, the Supreme Court granted the Government's petition for certiorari in Sims v. CIA, 709 F.2d 95 (D.C. Cir. 1983), in which the D.C. Circuit Court of Appeals, over a strong dissent, articulated an extremely narrow definition of the term "intelligence source" under the CIA's major Exemption 3 statute, 50 U.S.C. § 403(d)(3). See FOIA Update, Fall 1983, at 6. In seeking certiorari in Sims, the Solicitor General argued that the D.C. Circuit's harsh decision threatens to "seriously impair the Agency's ability to perform its mission." The Supreme Court will now hear oral argument on the issue next fall, with a final decision expected early in 1985.

On December 23, the Solicitor General also petitioned for certiorari in Provenzano v. United States Department of Justice, 717 F. 2d 799 (3d Cir. 1983), in which the Third Circuit Court of Appeals ruled that the Privacy Act of 1974 cannot serve as an Exemption 3 statute under the FOIA. See FOIA Update, Fall 1983, at 6. The Solicitor General's certiorari petition pointed to the square conflict between that decision and the Seventh Circuit Court of Appeals' decision in Shapiro v. DEA, 721 F.2d 215 (7th Cir. 1983), which flatly held in the Government's favor on that issue. (See p. 8 of this issue of FOIA Update.) A certiorari petition by the plaintiff in Shapiro has also been filed.

The Court's "conference consideration" of the Government's certiorari petition in Provenzano has been scheduled for March 23. If certiorari is granted in Provenzano, as is expected, the case should be heard and decided by the Court not long after Sims.

Also pending before the Supreme Court this Term is its review of the Ninth Circuit Court of Appeals' decision in Weber Aircraft Corp. v. United States, 688 F. 2d 638 (9th Cir. 1982), cert. granted, 103 S. Ct. 3534 (1983), which involves the special accident investigation report privilege under Exemption 5. See FOIA Update, Fall 1983, at 11. The case was argued before the Court on January 11 and a decision can be expected at any time before the Court adjourns in early July.

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