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FOIA Update: Supreme Court Vacates Exemption 1 Decision

FOIA Update
Vol. XX, No. 1

Supreme Court Vacates Exemption 1 Decision

In a sudden development that is unprecedented in the history of Freedom of Information Act litigation, the United States Supreme Court has dismissed as moot a case that was scheduled for oral argument and at the same time vacated the appellate court decision that it was about to review.

On December 3, after an extraordinary series of developments in the case, the Supreme Court issued an order canceling oral argument in United States v. Weatherhead, No. 98-1904, a case involving national security classification on foreign relations grounds under Exemption 1 of the FOIA. The case had been scheduled to be argued before the Court on December 8, but the State Department declassified and disclosed the record in question based upon a sudden decision by the foreign nation involved to no longer request foreign relations confidentiality for it. Most significantly, after this occurred, the Supreme Court agreed to vacate and thus nullify the aberrational appellate court ruling in the case that had required its review. See 68 U.S.L.W. 3365 (U.S. Dec. 3, 1999) (No. 98-1904) (vacating judgment of Ninth Circuit Court of Appeals and remanding with instructions to dismiss case as moot).

The Weatherhead Case

The Weatherhead case involved a letter that was sent to the United States by the British Home Office pertaining to the extradition of two persons residing in England who were prosecuted for conspiring to murder a government official in the United States. When this letter was sent in July 1994, and at several times thereafter, the British Government indicated that it was sent in confidence, with a current expectation of confidentiality--which in turn warranted the letter's classification to prevent foreign relations harm under Executive Order No. 12,958, 3 C.F.R. 333 (1996).

When this letter was requested under the FOIA by an attorney for the two extradited persons, the State Department withheld it under Exemption 1, based upon this foreign relations confidentiality rather than merely the sensitivity of the letter's contents, a determination that was upheld in litigation at the district court level. On appeal, however, the Ninth Circuit Court of Appeals flatly refused to defer to the State Department's judgment of foreign relations harm and ordered the letter disclosed. See FOIA Update, Vol. XIX, No. 4, at 6.

The Solicitor General then petitioned the Supreme Court to grant certiorari review of the Ninth Circuit's adverse ruling, which the Court granted on September 10. During the briefing of the case in mid-November, however, the requester revealed for the first time that he was in possession of a subsequent letter from a local British Consul that addressed the same subject. In response to this sudden revelation, the State Department immediately brought this new information to the attention of the British Government, which then decided to no longer insist on confidentiality for the first letter.

Accordingly, on an expedited basis, the letter was declassified, was disclosed to the requester, and was attached to the Solicitor General's successful motion to nullify the Ninth Circuit's adverse precedent that no longer could be appealed.

Supreme Court FOIA Cases

This case would have been the first FOIA case considered by the Supreme Court since it decided Oregon Natural Desert Ass'n v. Bibles, 519 U.S. 355 (1997), an Exemption 6 case which was decided by the Court summarily, and it was only the fifth FOIA case taken by the Supreme Court during the decade of the 1990s. In earlier years, the Supreme Court handed down decisions in 23 FOIA cases--including three in 1989, one in 1988, and no fewer than 19 in the years between 1973 and 1985. See FOIA Update, Vol. VI, No. 2, at 1-2. That first case, EPA v. Mink, 410 U.S. 73 (1973), was the only other case prior to Weatherhead in which the Court agreed to consider the applicability of Exemption 1. See also FOIA Update, Vol. III, No. 2, at 5 (describing Exemption 1 case that was mooted when requester withdrew its FOIA request before Court could act on Solicitor General's certiorari petition).



The four center pages of this issue of FOIA Update contain an updated list of the principal FOIA administrative and legal contacts at federal agencies.


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Updated August 13, 2014