FOIA Update: Under Advisement

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

Under Advisement

The following pending cases involve FOIA issues of particular significance that are expected to be decided in the near future:

• National Organization for Women v. Social Security Administration, No. 76-2119 (D.C. Cir.) Decision Below: Metropolitan Life Insurance Co. v. Usery, 426 F. Supp. 150 (D.D.C. 1976). Issues:  Is the Trade Secrets Act, 18 U.S.C. § 1905, an Exemption 3 statute? Is it congruent with Exemption 4? Status:  Argued before the D.C. Circuit on May 1, 1980; still pending after all these years.

• Bureau of National Affairs, Inc. v. Department of Justice, No. 83-1138 (D.C. Cir.) Environmentat Defense Fund v. OMB, No. 83-1685 (D.C. Cir.) (consolidated on appeal). Decisions Below:  3 GDS ¶ 83,064 (D.D.C. 1982) and 3 GDS ¶ 82,468 (D.D.C. 1982), respectively. Issue:  Are appointment books and daily logs of senior officials "agency records"? Status:  Argued before the D.C. Circuit on November 22, 1983.

• Stern v. FBI, No. 83-1861 (D.C. Cir.). Decision Below:  3 GDS ¶ 83,202 (D.D.C. 1983) (see FOIA Update, Fall 1983, at 7). Issue:  Can identities of censured FBI Special Agents be protected under Exemption 6 and/or Exemption 7(C)? Status:  Argued before the D.C. Circuit on February 29, 1984.

• Bartel v. FAA, No. 82-2473 (D.C. Cir. Jan. 17, 1984). Issue:  Do only actual FOIA disclosures trigger the "required" disclosure exception to the Privacy Act's disclosure prohibition under 5 U.S.C. § 552a(b)(2)? (A panel of the D.C. Circuit, in a radical departure from existing law and policy, decided this crucial FOIA-related issue adversely to the Government.) Status:  Pending on the Government's petition for rehearing en banc filed March 6.

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