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2001 FOI update: Access developments in the courts

By Harry Hammitt

FOIA litigation long ago became reasonably well settled and there wasn't a great detail of trail-blazing activity this year. The most important case, because it was decided by the Supreme Court just last week, dealt with an extension of Exemption 5, which incorporates various privileges, to memos written by an Indian tribe to the Bureau of Indian Affairs pertaining to a water use dispute. There were also some areas where courts contributed to a much greater understanding of how certain provisions of the EFOIA amendments will be interpreted.

Going hand in hand with this group of cases was a further interpretation of the fee waiver provisions in an age where everyone is his or her own electronic publisher. Also, there were a couple of cases that make important points on a variety of topics — exemption claims and submitter notification costs in particular. Finally, there has been some important litigation under the Privacy Act, although none of it conclusive, most notably a split in district courts as to whether the Privacy Act covers the Executive Office of the President.

FOIA litigation
The Supreme Court issued its decision in Dept. of Interior v. Klamath Water Users Protective Association March 5 after hearing oral argument in the case in January. The government asked the Court to overturn a 2-1 decision by a 9th Circuit panel. The lower court decision held that a series of memos sent by the Klamath Tribe to the Bureau of Indian Affairs concerning litigation involving water use rights in the Klamath River Basin of Oregon did not qualify for protection under the consultant's privilege because the Tribe potentially had an interest adverse to that of the agency.

Writing for a unanimous Supreme Court, Justice David Souter agreed with the 9th Circuit majority and concluded that the Tribe was not acting as a consultant, but out of self-interest. The Court's decision is in line with earlier FOIA case law dealing with correspondence between Indian tribes and the government and because of the narrow circumstances probably will have a greater impact on the law of tribal-government relations than it will under the FOIA.

This past year saw a series of cases interpreting the expedited review provisions of the EFOIA as well as others that shed some light on what constituted a backlog and what were the relative roles of the requester and the agency in narrowing a request. EPIC v. FBI (D.D.C.; hearing Aug. 3), was the first case to consider the interpretation of the expedited review provisions which were part of the EFOIA amendments.

The Electronic Privacy Information Center had requested records on the Carnivore electronic surveillance program from the FBI and was able to show the court considerable press interest in the subject matter. Before the court heard the case, the FBI agreed to expedite the request, but what that meant was still unclear. Judge James Robertson gave the agency 10 days to assess the scope of responsive documents and then told the agency he would continue to monitor the request to make sure it was answered in a reasonable time. As a practical matter, EPIC was able to get most of the records by the end of the year.

Al-Fayed v. CIA
The second case on expedited review involved a request by Mohamed Al-Fayed and the British magazine Punch for records pertaining to the deaths of Princess Diana and Dodi Fayed (Mohamed Al-Fayed, et al. v. Central Intelligence Agency, et al., USDC, 2000). In an initial victory for Fayed, Judge Colleen Kollar-Kotelly ruled that a requester did not need to exhaust his or her administrative appeal rights before bringing a denial of expedited review to court. But she found that the agencies had appropriately denied Fayed's requests for expedited review based on their regulatory criteria.

She noted that there was insufficient evidence to show Fayed's request needed expedited treatment and pointed out that "although the expedited processing provision prioritizes expediency, it does so only in very limited circumstances, recognizing that agencies cannot possibly give expedited treatment to each and every FOIA request. Accordingly, the public interest is best furthered by channeling the agencies' resources such that only certain urgent requests receive immediate treatment, while the rest are processed in the usual manner."

Fayed later asked Kollar-Kotelly to reconsider, but she declined to do so. In an opinion granting the agencies a stay to provide them more time to respond, Kollar-Kotelly noted that the EFOIA provisions requiring an agency to offer an alternative to extensive delay in processing did not require a continuous round of negotiations between the parties. Instead, once the agency had proposed an alternative, it was up to the requester to either accept or reject it.

Judicial Watch cases
The public interest group Judicial Watch had mixed success trying to convince several different judges to give the group either preferential fee treatment as a member of the press or to give a blanket fee waiver for their requests. Judge Kollar-Kotelly rejected the group's pleas for a request for records pertaining to Waco, Ruby Ridge, and the Atlanta Olympics bombing. She found that Judicial Watch was not a representative of the news media, noting that the arguments asserted in its favor were "characteristic of an organization that does not 'publish or broadcast news to the public' itself, but must rather rely on its contacts with news media representatives — via fax, Internet, or television interview — to deliver its announcements to the public." Rejecting a fee waiver, she wrote that the group's previous track record for publicly disclosing information was irrelevant in assessing the current request.

Judicial Watch fared better before Judge Ricardo Urbina with a more narrowly focused request concerning alleged contract irregularities and improper political influence in a lease the FCC held for space in The Portals, a Washington office building financed by friends of the Clinton administration. Urbina found there was a public interest in the records, namely the "interest in information which could help [the public] decide whether an agency's expenditure of their tax monies was based on sound financial or functional considerations or on other, arguably less appropriate considerations."

Urbina disagreed with Kollar-Kotelly's main findings, noting instead that a showing that Judicial Watch was capable of disseminating the information to the media qualified the organization for a waiver. He noted that "even though plaintiff did not specify which newspapers it would utilize to disseminate the information, it did set forth an extensive list of methods, which it customarily uses, and says it will use in this case, to disseminate information to the public." He also approved of the general availability of the information on the group's web site, pointing out that "a web-site such as the plaintiff's can serve as an electronic clearinghouse of information which citizens would otherwise have to cull from a variety of disparate sources, such as past newspaper articles, congressional hearing transcripts, court records and government agency reading rooms."

Two other judges looked at Judicial Watch fee waivers. Judge James Robertson called the group's web site "self-serving," but concluded that "if the regular publication or dissemination of information to the public is enough to qualify for a 'representative of the news media' waiver, then arguably anyone with a web site is entitled to demand free search services under the Freedom of Information Act. If such a result is intolerable (and for the Justice Department, which may have several employees doing searches for Judicial Watch, it may well be), the remedy lies with Congress."

In another case, Judge Henry Kennedy ruled against Judicial Watch on the same basic claims, noting that "Judicial Watch had not expressed a 'firm intention' to use the requested documents to publish a particular document." He also observed that Judicial Watch referred to itself as a public interest law firm, not a member of the news media.

Miscellaneous cases
There were several other cases worth mentioning. Public Citizen was able to establish, to a limited extent, that many agencies were misconstruing the EFOIA provisions requiring establishment of an electronic reading room and had neglected to identify major information systems.

In another significant decision, the D.C. Circuit ruled that the government could not invoke other exemptions after the original exemption claim became moot. The case involved the use of Exemption 7(A) to totally withhold records pertaining to an open investigation. The investigation ended during litigation and the government tried to claim other exemptions. The court observed that "we conclude not only that the DOJ did not genuinely assert exemptions other than Exemption 7(A) in the court below, but also that it had no legitimate excuse for its failure to do so."

In a case that could make the potential price of electronic information too high for commercial requesters, the 3rd Circuit upheld a district court's decision that a data broker would have to pay the costs of notifying in excess of 100,000 companies that confidential business information might be disclosed pursuant to the broker's request, a cost that was likely to exceed $1 million.

Privacy Act litigation
Two district courts reached opposite conclusions as to whether the White House was covered by the Privacy Act. Judge Royce Lamberth ruled that the White House was subject to the Privacy Act during litigation involving some of the individuals whose FBI background checks were disseminated to the White House security office. Although the Privacy Act's definition of "agency" is identical to that in the FOIA and the courts had already said the FOIA did not apply to the inner circle of the White House, Lamberth decided that, because the purposes of the Privacy Act and the FOIA were different, it would be in keeping with the spirit of the Privacy Act to extend its coverage to the White House.

In a decision issued earlier this year, he found President Clinton had committed a crime by not complying with the Privacy Act, thus creating a waiver of his privilege to withhold certain records in discovery. The D.C. Circuit refused to overturn Lamberth's decision outright but indicated that the White House didn't really have to pay attention to it. In litigation filed in Lynchburg, Virginia, Jerry Falwell also tried to convince the court that the White House was subject to the Privacy Act. But there, the court relied on the identical meaning of "agency" in both FOIA and the Privacy Act to find that the records were not subject to the Act.

Other litigation
A federal district court in Ohio ruled that Ohio State University and Miami University would be violating the Family Educational Rights and Privacy Act if they were to disclose information about individuals involved in student disciplinary proceedings. Although the Ohio Supreme Court had ruled that FERPA did not require the withholding of such information, in an unusual move the Department of Education intervened in federal court to procure a permanent injunction against the disclosure. The court found the agency had the right to intervene and that disclosure of the information was prohibited.

A final note
The most recent access/privacy issue to move to the forefront is an ongoing discussion within the Administrative Offices of the U.S. Courts over the public availability of personal information filed in bankruptcy proceedings. The agency has asked for public comment on the issue. Essentially, bankruptcy proceedings require a large amount of personal information — including financial and family information — and as the courts move to make more records available electronically, public access to such sensitive information may not be in the public interest. The courts are likely to somehow split the difference, but both access and privacy advocates need to watch this laboratory for resolution of the electronic clash between access to traditionally public records and the privacy of sensitive personal information.

Harry Hammitt is editor of the monthly newsletter Access Reports.

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