FOIA Update
Vol. XV, No. 2
1994

Gallant v. NLRB, No. 92-5440 (D.C. Cir. June 17, 1994).

In a fact-bound case involving letters written by NLRB Member Mary Miller Cracraft advocating her reappointment to the Board, the D.C. Circuit Court of Appeals ruled that such correspondence was not an "agency record" subject to the FOIA. Certain of the letters were composed by Ms. Cracraft on agency equipment, retyped by members of her staff on NLRB stationary, reviewed by other agency personnel, and transmitted by agency fax or franked nail. Rejecting the requester's argument that "employing agency resources, standing alone, is sufficient to render a document an 'agency record,'" the D.C. Circuit reaffirmed its holding in Bureau of Nat'l Affairs v. United States Dep't of Justice that "'in cases . . . where documents are created by an agency employee and located within the agency, use of the document becomes more important in determining the status of the document under FOIA.'" 742 F.2d 1484, 1490 (D.C. Cir. 1984) (ellipsis and emphasis supplied by Gallant court). Here, the letters were created for the "purely personal objective of retaining [Ms. Cracraft's] job," were "not intermingled with agency materials," were not used or relied upon by others "to carry out the business of the agency," and were taken "with her when she cleared out her office following her departure." The court concluded that "even though employing agency resources in the creation of the correspondence" is a relevant factor, it "is not as significant as the other factors employed in our precedents."

Dobronski v. FCC, 17 F.3d 275 (9th Cir. 1994).

In a disquieting decision purporting to rest on the narrower scope of protection afforded by Exemption 6, as distinct from that afforded by Exemption 7(C), the Ninth Circuit Court of Appeals has ruled that the sick leave records of an assistant bureau chief for the FCC must be disclosed. The records were sought by a reporter to substantiate a "tip" he had received that the assistant "had been taking unaccrued sick leave and improperly using sick leave time to take paid vacations." After recognizing that such records satisfied Exemption 6's threshold, the Ninth Circuit conceded that there was "some privacy interest" in the information contained on the requested leave slips -- which revealed only the dates and times the employee took sick leave -- but found this interest merely "nominal" and thus insufficient to overcome the "significant" public interest (if the allegations turned out to be true) in uncovering misuse of public monies. The Ninth Circuit rejected the government's position that the requester's mere allegation of wrongdoing, in the absence of "objective substantiation," created at best a "minimal" public interest in disclosure, and then distinguished the cases relied upon by the government as all involving the greater privacy protection afforded the subjects of investigatory records under Exemption 7(C), as opposed to that afforded under Exemption 7(C). It declared that to require the requester to possess objective proof of the facts before the agency disclosed the relevant records would be "antithetical to the FOlA's policy goals."

Detroit Free Press. Inc. v. Department of Justice, No. 93 CV 74692 (E.D. Mich. Apr. 25, 1994).

In a case of first impression, District Court Judge Anna Diggs Taylor has held, in a two-page bench ruling, that the "mug shots" of eight named individuals indicted on federal criminal charges are not covered by Exemption 7(C). Finding no privacy interest whatsoever in such booking photographs, she declared that "our faces, for better or for worse, are not private matters." As to the public interest side of the balance, she summarily declared that the defendants' "appearance at the time of the booking may well be of interest in examinations of how the Marshal's Office conducts its booking procedures." Dismissing the government's arguments applying only to "archival materials" that could not "easily be obtained otherwise," she found that a "face never can be [kept private]" because other pictures of these individuals could always be taken by the press "in the course of the prosecution." The Department of Justice has appealed.

A. Michael's Piano. Inc. v. FTC, 18 F.3d 138 (2d Cir. 1994).

Declining to take a rigid approach with respect to the breadth of the attorney work-product privilege under Exemption 5, the Second Circuit Court of Appeals has ruled that documents prepared after a staff attorney had decided not to recommend enforcement litigation were nonetheless prepared "'with an eye toward litigation'" and thus fall within the scope of the privilege. The requester, a former distributer of Steinway pianos, sought access to records concerning a recent FTC investigation of Steinway and Sons looking into its "warranty practices regarding allegedly defective pianos." The requester contended that the work product privilege was inapplicable to the requested documents because they were "prepared in anticipation of closing the investigation." The Second Circuit disagreed, holding that because the investigation was not, in fact, closed at the time the recommendation to close was written, "the fact that staff members may have thought that litigation might not ever occur does not take the documents out of the scope of those materials exempt" under Exemption 5. It went on to rule that those document portions "that are factual in nature" were nonetheless entitled to protection because "[t]he work product privilege draws no distinction between materials that are factual in nature and those that are deliberative." Thus, the court found it "irrelevant that they do not also fall within the scope of the deliberative process privilege."

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