FOIA Update
Vol. XIII, No. 2
1992

FLRA v. Department of the Navy, Nos. 90-3690 and 90-3724 (3d Cir. May 26, 1992) (en banc).

In a sharply divided decision affecting the privacy interests of federal employees, the Third Circuit Court of Appeals, sitting en banc, has held that the public interest in collective bargaining expressed in the Federal Service Labor-Management Relations Act must be considered when balancing under Exemption 6 to determine whether the home addresses of bargaining unit employees must be disclosed to a union that requests that information under the FSLMRA. The FSLMRA requires the disclosure of such information to the union unless prohibited by law and the Privacy Act prohibits such disclosures unless they are required by the FOIA -- which brings the analysis squarely within the FOIA. Nonetheless, the Third Circuit declared that when disclosure is sought under the FSLMRA, rather than directly under the FOIA, its analysis is not limited by the Supreme Court's Reporters Committee decision, and the "public interest" in collective bargaining embodied in the FSLMRA must be brought into the FOIA Exemption 6 balancing process. The majority found the "public interest" to outweigh the privacy interests of federal employees in the protection of their home addresses. Several other circuit courts of appeal have disagreed with this result, making Supreme Court review of the issue very likely.

Nadler v. Department of Justice, 955 F.2d 1479 (11th Cir. 1992).

In a forceful implementation of the Supreme Court's Reporters Committee decision, the Eleventh Circuit Court of Appeals categorically applied Exemptions 7(C) and 7(D) to protect source-identifying information in FBI criminal investigation interviews. Nadler, a state court judge, sought access to FBI records regarding a bribery investigation of him. The Eleventh Circuit flatly reversed the district court's ruling that under Exemption 7(D) the agency "must provide direct evidence of an assurance of confidentiality to each particular source." Instead, it joined five other circuit courts of appeal in holding that "'promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation,'" unless the requester "demons[trates] that it would be unreasonable to infer from the surrounding circumstances that confidentiality had been extended to the source." It rejected with similar vigor the idea that the FBI must make a "separate showing" as to each interviewee, holding that "where the public and privacy interests that affect the balancing under Exemption 7(C) are the same for all the information withheld, the Government's proof applies equally to all the contested records."

Cal-Almond, Inc. v. Department of Agriculture, 960 F.2d 105 (9th Cir. 1992).

In a bizarre case of first impression, the Ninth Circuit Court of Appeals has ruled that an Appropriations Act limitation stating that "[n]one of the funds provided in this Act may be expended to release information acquired from any [grower] under the Agricultural Marketing Agreement Act of 1937" does not prohibit the Department of Agriculture from releasing names of growers to a FOIA requester who was willing to provide his own copy machine and portable generator. Cal-Almond had sought the names of almond growers eligible to vote in a Marketing Act election, which the agency denied based upon Exemption 3. The Ninth Circuit initially stated that it "did not need to decide if the statute was an exempting statute for FOIA Exemption 3 purposes," because the language was concerned with the expenditure of funds rather than the disclosure of information. However, after noting that "if Congress intended to prohibit the release of the list under FOIA . . . it could easily have said so," it strongly implied that the Act was not an "explicit nondisclosure statute sufficient to qualify under [Exemption 3]."

Public Citizen v. Department of State, Civil No. 91-0746 (D.D.C. Apr. 7, 1992).

Reconsidering his January 14, 1992 decision, see FOIA Update, Winter 1992, at 3, District Court Judge Charles R. Richey upheld the classification status of two diplomatic cables which he had previously found to have been waived by the public congressional testimony of the U.S. Ambassador to Iraq. Based upon supplemental in camera filings, Judge Richey found that he had "committed clear error" and he reversed his prior order, ruling that Exemption 1 protection had not been waived. Recognizing that the standard for public acknowledgment in national security cases is a "strict" one, he reasoned that "while certain facts contained in the [two] documents were revealed in the Ambassador's [c]ongressional [t]estimony, the context in which the information appears is significantly different" so that "[r]evelation of the information in [this] context . . . would jeopardize national security." The requester has appealed.

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