FOIA Update
Vol. II, No. 3
1981

Significant New Decisions has been expanded in this issue of FOIA Update in response to reader demand for additional material on cases.

County of Madison v. U.S. Dept. of Justice, Civ. No. 78-3033-5 (D. Mass. 1990), aff'd in part and rev'd in part, Civ. Nos. 80-1589 & 80-1562 (1st Cir., March 3, 1981).

The principal FOIA significance of this case is its holding that documents submitted by private parties during settlement negotiations with government attorneys are not protected from disclosure by either Exemption 4 or Exemption 5. The court in this case also rejected an argument that it had the equitable discretion to decline to order release despite its holding that the records were not covered by any FOIA exemption. Its Exemption 5 analysis is particularly significant because it distinguished this case from Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), in which the court held: "Congress apparently did not intend 'inter-agency' and 'intra-agency' to be rigidly exclusive terms, but rather to include any agency document that is part of the deliberative process." 617 F.2d at 790. The First Circuit, while admitting that Ryan was not a literal reading of the inter/intra-agency requirement in Exemption 5, held that the exemption could not be stretched to include communications from parties who "approached the government with their own interest in mind." (Opposed to ones from persons whom the government had contacted for input in its deliberative processes.) Slip op. at 6. The court found the equitable discretion argument to be "contradicted by statutory language . . . and legislative history." Id. at 7. In general, this case is considered of wide significance in government litigation.

The Solicitor General has decided not to seek certiorari.

Taxation With Representation Fund v. Internal Revenue Service, Civ. No. 78-2034 (D.C. Cir., March 12, 1981).

In 1977, the Taxation With Representation Fund (TWRF) requested the Internal Revenue Service to permit it to inspect and copy General Counsel memoranda, Actions on Decisions and Technical Memoranda. After exhausting administrative remedies, TWRF filed a FOIA suit. The IRS contended that the documents were covered by the deliberative privilege and therefore exempt under 5 U.S.C. § 552(b)(5). The court in this case, while recognizing that the documents were "predecisional," held them releasable because they were subsequently distributed, updated and used by agency personnel.

The Solicitor General has decided not to seek certiorari.

Piccolo v. U.S. Department of Justice, Civ. No. 80-2315 (D.D.C., May 13, 1981).

A district court judge has reaffirmed the view that grand jury materials are beyond the reach of FOIA. On May 13, Judge Robinson of the District Court of the District of Columbia granted the government's motion for reconsideration and held that Rule 6(e) of the Federal Rules of Criminal Procedure is a FOIA Exemption 3 statute. In a widely publicized opinion, Judge Robinson earlier held that the rule would not qualify as an exempting statute under 5 U.S.C. § 552(b)(3). This case will be discussed in more detail in the next FOIA Update.

Coastal States Gas Corp. v. Dept. of Energy, 495 F. Supp. 1172, (D. Del. 1980), vacated, Civ. No. 79-00197 (3rd Cir., March 19,1981).

The Third Circuit Court of Appeals has ruled that a lower court abused its discretion in ordering release of documents in the face of government dilatoriness and a "woefully inadequate" first Vaughn index without looking at the second Vaughn index and considering on the merits the exemptions claimed.

In vacating the order of the lower court, the appeals court said that the lower court's ruling could not be sustained since the government's initial index, even if not adequate, did raise disputed issues of fact. Further, the Third Circuit said the lower court could not be sustained on the merits since no warning was given that, the government would have to rest on its initial Vaughn index. The Third Circuit noted that it will require district courts to state explicitly the legal basis and findings which underpin their decisions to withhold under FOIA.

It should be noted that the appeals court said that in the future it would not be unreasonable to require that the government rely on its first Vaughn index.

Furthermore, the appeals court indicated that improper withholding may encompass withholding which is substantively unmeritorious or undue delay by the government in providing sufficient information.

Military Audit Project v. Casey, Civ. No. 80-1110 (D.C. Cir., May 4, 1981).

In this case, the CIA at first refused to confirm or deny its connection with the Glomar Explorer, as well as the existence of documents on the subject. Later the agency changed. its position and released information with some categories deleted on the basis of Exemptions 1 and 3. The district court denied plaintiff's requests for discovery and granted summary judgment for the CIA.

The Court of Appeals for the District of Columbia held that, despite the widespread publicity about the Glomar Explorer, the plaintiffs had not established a basis for granting discovery to challenge the CIA's affidavits. Further, the court said that partial disclosure did not render implausible the claim that full disclosure would harm the national security and that the CIA's change of position and partial document release did not render implausible the reasons for refusing full disclosure.

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