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FOIA Update: Supreme Court Update

FOIA Update
Vol. IV, No. 4

Supreme Court Update

In an entirely unexpected development, the Washington Post Company has abruptly withdrawn its FOIA request underlying the case of Washington Post Co. v. Department of State, 685 F.2d 698 (D.C. Cir. 1982), which the Supreme Court only recently accepted for review.

The Washington Post Company had sought access to records reflecting the State Department's "Emergency Fund" expenditures for its diplomatic and consular services. The D.C. Circuit Court of Appeals ruled that the statutes authorizing the Secretary of State to keep such disbursements secret are not specific enough to satisfy Exemption 3, as amended. See 685 F.2d at 704; see also FOIA Update, Jan. 1983, at 5. After the D.C. Circuit denied rehearing en banc, the Solicitor General filed a petition for certiorari with the Supreme Court, which was granted when the Court reconvened in early October. See 52 U.S.L.W. 3239 (Oct. 3, 1983).

The Washington Post Company's sudden withdrawal of its underlying FOIA request, however, appears to have effectively precluded Supreme Court review of this important Exemption 3 issue. Such a development is highly reminiscent of a similar move made just last year in Holy Spirit Association v. CIA, 636 F.2d 838 (D.C. Cir. 1980), cert. granted & vacated in part, 455 U.S. 997 (1982), an Exemption 1 case in which the plaintiff withdrew its FOIA request literally on the eve of Supreme Court certiorari consideration. See FOIA Update, March 1982, at 5. As in Holy Spirit, it can be expected that the Supreme Court will at least vacate the D.C. Circuit's decision in Washington Post.

This would have been the fourth adverse D.C. Circuit FOIA decision reviewed by the Supreme Court at the government's urging in the last two years. In each of the three previous cases -- FTC v. Grolier, Inc., 103 S. Ct. 2209 (1983) (Exemption 5), Department of State v. Washington Post Co., 456 U.S. 595 (1982) (Exemption 6), and FBI v. Abramson, 456 U.S. 615 (1982) (Exemption 7) -- the Supreme Court reversed the D.C. Circuit with an opinion strongly in the government's favor. See FOIA Update, Summer 1983, at 1-2; FOIA Update, June 1982, at 9.

Still remaining on the Supreme Court's docket this Term is the Ninth Circuit's narrow Exemption 5 decision in Weber Aircraft Corp. v. United States, 688 F.2d 659 (9th Cir. 1982), cert. granted, 103 S. Ct. 3534 (1983). in which the Ninth Circuit refused to accord traditional privilege protection under that exemption to an Air Force accident investigation report. The government is asking the Supreme Court to construe Exemption 5 broadly enough to encompass such protection, as have both the Fifth and Eighth Circuits. See Cooper v. Department of the Navy, 55F, F.2d 274, 278-79 (5th Cir. 1977), modified on other grounds, 594 F.2d 484 (5th Cir. 1978), cert. denied, 444 U.S. 926 (1979); Brockway v. Department of the Air Force, 518 F.2d 1184, 1193 (8th Cir. 1975). See also FOIA Update, Jan.1983, at 5.

Oral argument in Weber Aircraft has not yet been scheduled.

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Updated August 13, 2014