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2005 FOI update: in the courts
2005 National FOI Day Conference

By Harry Hammitt

The state of access did not improve dramatically during the past year, but there were some important developments in case law and the Supreme Court’s ruling in National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), had several useful passages that helped to soften the blow when the Court embraced the concept of survivor privacy in the context of the Freedom of Information Act.

The expansion of various undefined concepts like “sensitive but unclassified” or “sensitive homeland security information” continued, and although the Justice Department protests that these categories of information do not form the basis for withholding records under FOIA, to requesters it seems obvious that agencies are not likely to disclose such information short of a court order.

Aside from the affirmation of survivor privacy by the Supreme Court, privacy took a back seat to security issues. However, there are signs that the two may intertwine with each other at some point to deny access to such traditionally public records as names and office addresses of federal employees.

In the Supreme Court
The Supreme Court decided one FOIA case last term, one case with access implications, and one Privacy Act case. Although none of them could be characterized as victories for requesters, the Court’s decision in National Archives and Records Administration v. Favish did provide some potential help to requesters.

The case was a somewhat pointless argument over whether a handful of crime scene photos pertaining to the Vince Foster suicide investigation should be disclosed. While the D.C. Circuit in Accuracy in Media v. National Park Service, 194 F.3d 120 (D.C. Cir. 1999), had ruled that the photos could be withheld under the law enforcement records privacy exemption (Exemption 7(C)), the 9th Circuit, in Favish v. Office of Independent Counsel, 217 F.3d 1168 (9th Cir. 2000), had ruled that several of the photos were not graphic enough to require protection and, further, that Favish had articulated a legitimate public interest in disclosure by challenging the conclusions of the government’s investigation of Foster’s death.

The Supreme Court, relying largely on religious and social traditions concerning family control of matters involving deceased family members, concluded that Foster’s family members had a right of privacy independent of Foster himself and that that right provided the basis for withholding the photos.

But the Court actually gave a bit when it discussed the concept of what constituted a public interest. As part of the flurry of rigid interpretations that followed the Supreme Court’s 1989 decision in Department of Justice v. Reporters Committee, the D.C. Circuit ruled, in SafeCard Services v. SEC, 926 F.2d 1197 (D.C. Cir. 1991), that all personal information contained in law enforcement records were per se exempt unless the requester could show evidence of wrongdoing on the part of the agency.

Although the Supreme Court did not approach its discussion of the public interest standard in terms of the SafeCard standard, its conclusion clearly casts serious doubt on that standard. The Court found that a requester articulated a legitimate public interest adequate to outweigh a privacy interest when he or she provided evidence sufficient to show that a reasonable person would suspect government wrongdoing. While the Court ruled that Favish had not met this standard, this new test is significantly more generous than the SafeCard standard, which required the requester to provide proof of wrongdoing in advance.

After Favish, the standard is now a “reasonable person” test, which requires a sufficient degree of evidence, but does not require proof in advance.

There were several important decisions this year involving the parameters of protection offered by various legal privileges. These privileges – deliberative process privilege, attorney work-product privilege, and executive privilege – afford protection under Exemption 5 of the FOIA. Several courts put significant limitations on the government’s claims this past year.

The Supreme Court agreed to rule on whether Judicial Watch and the Sierra Club could force the government to review records from the Cheney energy task force and respond to discovery requests. The two public interest groups had sued, claiming the task force was subject to the disclosure requirements of the Federal Advisory Committee Act. The district court and the D.C. Circuit had both ruled that, to determine if the task force was subject to FACA, further discovery would need to take place.

The courts ordered limited discovery and told the government to provide a privilege log which would describe why records were exempt. The government refused to do so, claiming that such a process was unconstitutionally burdensome.

The Supreme Court, in Cheney v. United States District Court, 124 S.Ct. 2576 (2004), partially agreed, sending the case back to the D.C. Circuit to look for alternative methods for resolving the case that would be less onerous for the government.

In Doe v. Chao, 540 U.S. 614 (2004), the Court heard its first Privacy Act case, one involving the degree of proof a plaintiff had to show to be eligible for $1,000 in statutory damages. Most courts that had dealt with the provision previously had found that if a plaintiff showed a violation of the statute and, further, that the violation had had an adverse effect on the individual, then that person was entitled to at least $1,000 in statutory damages.

In an earlier decision in the Doe case, however, the 4th Circuit had ruled that a plaintiff must prove actual damages and, at that time, he or she would be entitled to at least $1,000. A closely divided Supreme Court agreed with the 4th Circuit’s interpretation.

One of the most fascinating cases involving Supreme Court litigation did not result in a Supreme Court decision.

As part of its preparation for a lawsuit against gun manufacturers, the City of Chicago asked the Bureau of Alcohol, Tobacco and Firearms to disclose information about gun-sale traces. The agency claimed the information was protected under various parts of the law enforcement exemption, but the 7th Circuit disagreed, ordering the agency to disclose the information. The case then went to the Supreme Court.

After the issues had been briefed, the government informed the Court that Congress had passed legislation prohibiting the BATF from using appropriated funds to respond to the request. As a result, the Court sent the case back to the 7th Circuit for reconsideration.

In City of Chicago v. Bureau of Alcohol, Tobacco and Firearms, 384 F.3d 429 (7th Cir. 2004), the 7th Circuit ruled that the funding restriction did not prevent responding to the request because Chicago had committed to paying all the costs. However, Congress then passed another law making the agency “immune from legal process.”

Lower court decisions
In Judicial Watch and Natural Resources Defense Council v. Department of Energy, 310 F.Supp. 2d 271 (D.D.C. 2004), a case involving access to agency records created during the existence of the Cheney energy task force, Judge Paul Friedman made several rulings that put the government in a significant bind in terms of protecting the records pertaining to the task force.

First, Friedman concluded that agency staff from the Department of Energy and the Department of Interior, as well as other agencies, detailed to work for the task force remained employees of their respective agencies, which, in turn, meant that any records they created while working for the task force were records of their respective agencies and must be produced under FOIA unless they were exempt.

Friedman next ruled that the agencies could not claim the deliberative process privilege for records created for use by the task force. To fall under Exemption 5, records must be “inter- or intraagency” records – records either shared within an agency or between agencies. Friedman concluded that, since the task force was not an agency, records submitted to it could not be claimed under the deliberative process privilege. He indicated that such records potentially could be covered by the constitutionally based executive privilege, but the administration has yet to make such a claim.

The D.C. Circuit also ruled in a case whose facts, to some extent, were the flip side of those with which Friedman was concerned.

In Judicial Watch v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004), the court overturned a district court ruling that all records that were part of the process of considering whether or not to issue a presidential pardon were protected from disclosure by the executive privilege.

The district court had concluded that, since pardons were constitutionally committed to the executive, all records pertaining to pardons must come within the executive privilege. The D.C. Circuit found, however, that only records that were prepared or used by presidential staff qualified for the executive privilege. Records created by Justice Department staff that were never sent to the White House did not qualify for executive privilege.

The court recognized, however, that such records could qualify for the deliberative process privilege, although the government had not claimed that privilege.

Judge Emmet Sullivan cut back on the coverage of the attorney work-product privilege in his ruling in Judicial Watch v. Department of Justice, 337 F.Supp.2d 183 (D.D.C. 2004). He had earlier found that some records qualified for protection as attorney work-product. But when Judicial Watch came back and argued that the Justice Department had not reviewed the records for segregability, Sullivan sided with the plaintiff and ordered the agency to disclose factual portions of the records.

However, in the D.C. Circuit both facts and opinions are protected by the attorney work-product privilege. As a result, Sullivan apparently concluded that the segregability requirement in FOIA trumped the broad protections of attorney work-product.

In National Council of La Raza v. Department of Justice, 337 F.Supp 2d 524 (D.SDNY, 2004), the court found that a Justice Department memo changing policy concerning the detention of individuals on immigration charges by local law enforcement officials must be made public because the attorney general and several high-ranking officials had publicly discussed its conclusions in detail.

Although the memo itself had never been disclosed, the court ruled that the extent of the detail disclosed constituted a waiver of the deliberative process privilege.

Attorneys’ fees
The issue of attorney’s fees continued to be an important issue in litigation.

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the Supreme Court ruled that to prevail in a lawsuit for purposes of an award of attorney’s fees required that the court issue an order in favor of the plaintiff. Before Buckhannon, plaintiffs only needed to show that the litigation caused the agency to comply and did not require a court order. The D.C. Circuit ruled that Buckhannon applied to FOIA in Oil, Chemical & Atomic Workers Union v. Dept. of Energy, 288 F.3d 452 (D.C. Cir. 2002).

Last year, in AutoAlliance International v. Customs Service, 300 F.Supp.2d 509 (D.ED Mich 2004), a court found the plaintiff had prevailed when the court ordered the agency to again review its documents, resulting in further disclosures.

In Piper v. Dept. of Justice, 339 F.Supp. 2d 13 (D.D.C. 2004), the court granted attorney’s fees after having reduced the time for responding to the request from four to two years, and having rejected agency claims pertaining to 23 documents.

In Edmonds v. FBI, 272 F.Supp.2d 35 (D.D.C. 2004), the court declined to grant an award, finding that Edmonds had prevailed only on her request for expedited processing, but had lost on all exemption claims.

Expedited processing
Challenges to denials of expedited processing continue to result in litigation, particularly in cases brought by the Electronic Privacy Information Center. However, at the end of the year, EPIC lost its suit to force the Defense Department to expedite the processing of its request on Verity K2 Enterprise software, used for data-mining.

The court, in EPIC v. Department of Defense, 2004 WL 2848316 (D.D.C. 2004), found EPIC had not shown that Verity K2 was a subject of media interest, only that data-mining generally had attracted media attention.

News media cases
Several suits involving the news media had positive outcomes for the requesters.

In New York Times v. Department of Labor, 540 F.Supp.2d 394 (D.S.D.N.Y., 2004), the court ruled that Exemption 4, which protects confidential business information, did not apply to records of worker illness and injury records because those records had to be publicly posted on the job site.

In Chang v. Department of the Navy, 314 F.Supp.2d 35 (D.D.C., 2004), the court ruled that the Navy did not violate the Privacy Act when it disclosed information about Daniel Chang’s disciplinary proceedings after the ship he commanded was involved in a collision with a freighter. The court found the information was of public interest and was required to be disclosed under the FOIA.

State litigation
There were no clear themes in state litigation on access issues, but several decisions are worth noting.

One of the most interesting, because it could have long-term implications, is a Connecticut case, Director, Department of Information Technology, Town of Greenwich v. FOI Commission. Greenwich denied access to its Geographic Information Systems maps of the town because disclosure would allow people to learn more about the homes of rich celebrity residents, creating possible security risks. The court ruled the GIS maps were created with public money using public information and could not be withheld. The case is now on appeal.

In New York Times v. City of New York Fire Department, the court found that oral histories done by firemen involved in 9/11 rescue operations could not be withheld under the privacy exemption because they did not contain personal information subject to protection.

In Judicial Watch v. Vermont, a trial court found that former Gov. Howard Dean did not have the authority to determine when the public would have access to his gubernatorial records. Instead, the court indicated the records would have to be disclosed based on the provisions of the state’s open records act. The state’s appeal of the ruling was heard by the Vermont Supreme Court beginning March 14.

In Cable News Network v. Florida Department of State, Division of Elections, a trial court ruled that records pertaining to purges of alleged ineligible voters were not protected by the privacy exemption.

In City of Frederick v. Randall Family Trust, the Maryland Court of Special Appeals ruled that information about town residents who were clients of a local prostitute must be disclosed.

The attorneys general of two states – Texas and Kentucky – ruled that medical privacy regulations issued by the federal Department of Health and Human Services pursuant to the Health Insurance Portability and Accountability Act did not prevent law enforcement from disclosing information about incidents involving injuries or medical treatment.

In Breighner v. Michigan High School Athletic Association, the Michigan Supreme Court ruled that the association was not an agency, even though it had been an agency before having its identity changed to nonprofit status by the Legislature. Although it was referred to as a nonprofit, its only function was to arrange high school athletic competitions and the vast majority of its funding came from payments from member public high schools.

There were more bright spots in the case law this past year than in many typical years. But new restrictions for safeguarding various categories of sensitive information, if implemented aggressively, will result in large categories of records that could be even less available than if they had been classified.

The short-term fate of access will depend in large part on whether the government remains preoccupied with terrorism. If security matters remain the focus of government, access will certainly decline.

Harry Hammitt is the editor and publisher of Access Reports, a biweekly journal of news and analysis of FOI jurisprudence.

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