Vol. III, No. 2
Supreme Court Update
In an extraordinary procedural development, the plaintiff in a case pending before the Supreme Court withdrew its FOIA request literally on the eve of the Court's consideration of the first appellate FOIA decision to order classified information disclosed.
The Supreme Court was scheduled on Feb. 19 to consider the government's petition for certiorari in Holy Spirit Ass'n v. Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980), a case in which the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's rejection of the CIA's Exemption 1 claims for certain "Koreagate" investigation documents.
On Feb. 18, however, plaintiff's counsel delivered to the Supreme Court a letter withdrawing the FOIA request underlying the controversy and presumably mooting the appeal. In response, the Solicitor General formally asked the Court to vacate the D.C. Circuit's decision on the issue and on March 8 the Court did so.
In other developments, the Court on Feb. 24 issued its decision in Baldrige v. Shapiro, 50 U.S.L.W. 4227 (U.S., Feb. 24, 1992), holding unanimously that census data is exempt from disclosure under Exemption 3 of the FOIA and is also privileged from production in civil discovery. In so doing, the Court reversed a contrary ruling by the U.S. Court of Appeals for the Third Circuit, published at 636 F.2d 1210, and affirmed a Tenth Circuit ruling published at 644 F.2d 844.
Still pending before the Court is Abramson v. Federal Bureau of Investigation, 658 F. 2d 806 (D.C. Cir. 1980), cert. granted, No. 80-1735 (U.S., June 15, 1981), where the issue is whether information extracted from an FBI record and recompiled for an arguably non-law enforcement purpose loses its Exemption 7 protection. (See FOIA Update, Sept. 1981.) The Court heard oral argument on Jan. 11 and a decision is expected by the end of the Court's current Term.
No oral argument date has yet been set in Washington Post Co. v. United States Department of State, 647 F.2d 197 (D.C. Cir. 1981), cert. granted, No. 81-535 (U.S., Nov. 9, 1981), which raises the issue of the proper breadth of the term "similar files" in Exemption 6. (See FOIA Update, Dec. 1981.) On Feb. 22, however, the Court denied a motion by the Post to have certiorari withdrawn, so the appeal is now ready for an argument date to be set in late March.
In addition to the FOIA cases accepted for review this Term, the Supreme Court handed down a FOIA- related decision on Dec. 1, 1981. In Weinberger v. Catholic Action of Hawaii/Peace Education Project, 50 U.S.L.W. 4027 (U.S., Dec. 1, 1981), the Court held that the Navy is not required to prepare an environmental impact statement for the possible storage of nuclear weapons at a specific facility because ". . .whether or not nuclear weapons are stored at [the facility] is classified information exempt from disclosure to the public under Exemption 1."
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