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By the U.S. Dept. Of Justice

Pollack v. Department of Justice, No. 93-2025 (4th Cir. Mar. 10, 1995).
In a decision clarifying the responsibilities of both agencies and requesters, the Court of Appeals for the Fourth Circuit held that while agency disclosures made after litigation commences do not revive the requester's obligation to administratively appeal, the agency's failure to respond before the filing of the FOIA suit in no way negates the requester's obligation to pay fees. The requester filed suit after waiting nearly a year without a response to his request for records concerning his criminal convictions for conspiracies involving mail fraud, wire fraud and embezzlement. Following the processing of responsive material, the district court dismissed the action based on the requester's failure to administratively appeal the several releases made after the litigation had commenced, and due to his refusal to pay duplication fees. Rejecting the first ground for dismissal, the Fourth Circuit held that so long as a requester had constructively exhausted his administrative remedies by waiting ten--or in some cases twenty--working days, the court was not thereafter "deprived of jurisdiction" because he failed to ad-ministratively appeal releases ultimately made during litigation. On the second issue, the Fourth Circuit affirmed the dismissal of the action for nonpayment of fees, squarely rejecting the requester's novel and unfounded argument that the lack of a timely agency response to his request relieved him of his responsibility to pay duplication fees.

Chemical Waste Management, Inc. v. O'Leary, No. 94-2230 (D.D.C. Feb. 28, 1995).

In a key decision interpreting Exemption 4, United States District Court Judge Norma Holloway Johnson held that unit prices in a government contract are "required" rather than "voluntary" submissions under the D.C. Circuit's Critical Mass decision and therefore must be analyzed under National Parks' competitive harm test. The ruling came in a "reverse" FOIA suit brought by the successful bidder for a hazardous waste management and disposal services contract for the Department of Energy's Savannah River site. Seeking to be judged under Critical Mass's "less stringent test," the submitter urged that "it should be considered a voluntary provider of information to DOE because . . . [it] voluntarily bid" on the contract. Flatly rejecting that argument, Judge Johnson upheld DOE's determination that the contractor "submitted the unit price information pursuant to a requirement in the RFP" and noted that without the submission, the bid "would not have conformed to the terms of the RFP." Thus, the submitter "had no choice but to submit the unit price information once it chose to submit its proposal." With regard to DOE's rejection of the contractor's alternative argument that disclosure would cause it substantial competitive harm, she ruled that the agency had "misapplied legal precedents" and "failed to respond" to the contractor's "actual complaints of harm." Nevertheless, she remanded the case back to the agency for further proceedings on the question of competitive harm, specifically declining to order an "outright reversal" on that issue.

Strout v. United States Parole Comm'n, 40 F.3d 136 (6th Cir. 1994).
In a case of first impression, the Court of Appeals for the Sixth Circuit held that an agency's regulation requiring payment of fees before release of already-processed records did not violate the FOIA's prohibition against requiring advance payment. The requester, a federal prisoner serving thirty years for murder in a national park, sought access to his Parole Commission records and, after they were processed, was advised that in "accordance with departmental regulations, you are required to pay all applicable fees before the requested records are released to you." The requester contended that the agency's demand for payment before release of records was unlawful under the statute and that the agency's distinction between fees for already-processed records and an advance payment--i.e., a payment made before work is commenced--was a "distinction without a difference." In interpreting the admonition that "[n]o agency may require advance payment of any fee," 5 U.S.C. 552(a)(4)(A)(v), the Sixth Circuit disagreed, finding that the regulation "does not conflict with the statutory provision because the agency has already incurred the expense of search and duplication before requesting payment."

Dow Jones & Co. v. United States Dep't of Justice, No. 94-0527 (S.D.N.Y. Jan. 5, 1995).

In a difficult Exemption 7(C) case concerning survivors' privacy, United States District Court Judge Sonia Sotomayor prohibited the Department of Justice "from withholding circulation" of copies of a handwritten, torn-up note retrieved from Deputy White House Counsel Vincent Foster's briefcase after his suicide. The agency made available a typed transcript of the note, and allowed anyone to view a copy of the original note in Washington, D.C., but argued that publicly circulating the note would unjustifiably invade the Foster family's privacy. Judge Sotomayor recognized that the family would suffer "pain . . . as a result of any renewed scrutiny," but held that their interest was outweighed by the public's "substantial" interest in "viewing a photocopy of the actual document," insofar as it "touched on several events of public interest, including the controversy involving the White House travel office, and implicated government agencies and employees in misconduct." She concluded that the "missing pieces of the [n]ote, and therefore the physical look of the [n]ote, are an integral part of the public's interest." Mrs. Foster has intervened for purposes of appeal..

McDonnell Douglas Corp. v. NASA, No. 94-2452, 1995 WL 461770 (D.D.C. June 30, 1995).
Building on its earlier decision in Chemical Waste Management, Inc. v. O'Leary, No. 94-2230, 1995 WL 115894 (D.D.C. Feb. 28, 1995), the District Court for the District of Columbia has issued yet another decision holding that "pricing information" in a government contract is a "required" submission that must be analyzed under the National Parks competitive harm test. The ruling arose in one of several "reverse" FOIA suits brought by McDonnell Douglas concerning its contract to provide Delta II rockets and related launch services. Judge Royce C. Lamberth rejected as "temptingly simple" McDonnell Douglas' Critical Mass argument "that resolution of the voluntariness issue requires noth- ing more than reference to the 'ancient concepts of freedom of con- tract.'" Under that theory, because McDonnell Douglas "did not have to enter into a contract, no information within the contract [could] be considered mandatory." Flatly rejecting this notion, Judge Lamberth declared that such an approach "would result in classifying all government contractors as per se volunteers whose pricing information could easily be withheld from the public domain." He concluded by finding that the submitter would suffer no competitive harm from release of the information at issue--prices associated with termination schedule percentages and second- ary payloads--because McDonnell Douglas had "failed to show with any particularity" how such harm could occur.

Cotton v. Heyman, No. 94-5014, 1995 WL 405265 (D.C. Cir. July 11, 1995). In a precedent-setting decision, the Court of Appeals for the D.C. Circuit reversed a lower court's determination that its own "precedential" ruling would "greatly increase the amount of information available to the public" to such an extent as to entitle the requester to attorney fees. Reviewing the test for determining entitlement to fees, the D.C. Circuit expressly rejected the district court's conclusion that the public interest factor was satisfied solely by establishing the precedent that the Smithsonian Institution was subject to the FOIA, finding it to be "an inherently speculative observation . . . inconsistent with the structure of FOIA itself." Evaluation of the public interest, the D.C. Circuit ruled, must be limited to consideration of "the speci-fic documents at issue in the case," consisting of two nonexempt records sought "for the sole purpose of facilitating [the requester's] employment discrimination suit," which the requester did not even argue would serve the public interest. Although de-clining to rule squarely on the "agency" status of the Smithsonian, the D.C. Circuit did hold that the reasonableness of the Smithson-ian's position likewise militated against a fee award, noting the absence of any "bright line rules" governing the applicability of FOIA to those federal entities not subject to the Administrative Procedure Act. Emphasizing the "fact- specific" nature of its prior decisions, it concluded that "[i]nevitably, such a fact intensive test lacks a strong predictive element" and, therefore, that the Smithsonian's position had necessarily been reasonable.

Ruotolo v. Department of Justice, 53 F.3d 4 (2d Cir. 1995).
Emphasizing that the onus is on the agency to demonstrate that a search would be unduly burdensome, and noting that such an obligation is met only in cases involving truly massive volumes of records, the Court of Appeals for the Second Circuit reversed a district court's ruling that the Justice Department's Tax Division did not need to search for records that were not retrievable by means of its indices. To assist them in a pending FOIA lawsuit, the requesters sought all Vaughn Indexes filed by the Division after 1978 and agreed to incur costs up to $600. The Tax Division responded that "a request for files of 803 cases would overwhelm the Division's file unit for a not inconsiderable period of time" because they would have to be ordered from the Federal Records Center and would have to be searched manually for the Vaughn In-dexes. The Second Circuit, however, declared that it would have been a "simple matter" for the agency to compile the most current responsive files and work backward to 1978 until the funds supplied were exhausted, and then to provide a cost estimate for completing the search. It concluded that there was strong evidence that the search was not "especially burdensome" in light of the "limited number of files" and the payment tendered.

Baizer v. United States Dep't of the Air Force, 887 F. Supp. 225 (N.D. Cal. 1995).

In a decision dwelling on the purposes of the FOIA, United States District Court Judge Fern M. Smith ruled that a computer database consisting exclusively of agency-compiled Supreme Court decisions was not an "agency record." The requester, an Oakland attorney, sought access to these cases in electronic form. Following SDC De-v. Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976), Judge Smith held that the critical issue was "how the agency used the requested material," as this would bear directly on whether "the agency controls the material." Finding that the database was "maintained for reference purposes only, and the Supreme Court decisions it contain[ed were] readily available both in public libraries and from other computerized reference services," she held that it would not shed light on the "structure, operation, and decision- making" of the agency. Judge Smith "bolstered" her ruling by noting that the Federal Records Disposal Act expressly defines "records" to ex-clude "[l]ibrary and museum material made or acquired and preserved solely for reference or exhibition purposes."

Rosenfeld Decision Issued by Ninth Circuit

In a decision which conflicts with the law of nearly every other circuit, a panel of the Court of Appeals for the Ninth Circuit on June 12 upheld a district court decision ordering the disclosure of the identities of hundreds of confidential FBI sources. See Rosenfeld v. United States Dep't of Justice, 57 F.3d 803 (9th Cir. 1995). This extraordinary ruling arose from a request made to the FBI for records concerning individuals and organizations involved in the Free Speech Movement (FSM), which had organized demon-strations at the University of California at Berkeley during the 1960s to protest "campus regulations restricting political activities on campus grounds." The FBI had investigated the FSM "out of a concern that its leaders were members of communist or subversive organizations."

Many of the sources the FBI sought to protect in the case were classified sources. In upholding the lower court's disclosure decision, the Ninth Circuit relied upon its decision in Wiener v. FBI, 943 F.2d 972, 980 (9th Cir. 1991), cert. denied, 113 S. Ct. 3013 (1992) (see FOIA Update, Summer 1992, at 2), to declare that the FBI was required to demonstrate "'whether the source was truly a confidential one and why disclosure of the withheld information would lead to exposure of the source.'"

Undertaking minimal appellate review, the Ninth Circuit ruled that the district court had "correctly concluded that the govern-ment did not carry its burden" as to the classified sources because it had not demonstrated with sufficient "particularity" why classification was warranted. It flatly rejected the FBI's argument that the lower court had failed to afford the government's classification decisions "substantial weight," summarily declaring that "[t]his contention does not persuade us" because, it said, the FBI had "failed to make an initial showing which would justify [such] deference." Thus, this case now stands as the only pending one in which classified information has been ordered disclosed.

The remaining information in the case, which was withheld pursuant to Exemption 7, fared no better than the classified material. Although acknowledging that the FBI "has a clear law enforcement mandate," the Ninth Circuit turned Exemption 7's "law enforcement purpose" threshold into a major obstacle thwarting the FBI's ability to protect confidential sources and personal privacy interests. It conceded that documents in the FSM file--at least up to a certain date --were in fact compiled for a law enforcement purpose, but then upheld the lower court's determination that that purpose "'disintegrated'" into a "pretext to pursue routine monitoring." As a result of this ruling on Exemption 7's threshold, the Ninth Circuit essentially denied protection outright for numerous sources and third parties mentioned in the files. Further, even as to those documents that were found to satisfy Exemption 7's threshold, source and privacy protections still were denied. As to the privacy interests, the Ninth Circuit simply agreed with the lower court that "[i]t certainly serves FOIA's purpose to disclose publicly records that document whether the FBI abused its law enforcement mandate by overzealously investigating a political protest movement" and that that purpose "may not be served without disclosing the names of the investigation subjects."

As to the confidential sources, disclosure was ordered even for symbol- numbered sources, despite the FBI's sworn declaration demonstrating that such sources are routinely granted an express promise of confidentiality and that their identities are so sensitive that even within the FBI they are revealed on a need-to-know basis only. The Ninth Circuit chose to discount that declaration and instead just cited its decision in Wiener to rule that the FBI had failed to point "to anything in the record that indicates persuasively" that the symbol-numbered sources were "'told [their] name[s] would be held in confidence.'" The government has filed a petition for rehearing en banc.

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