General Electric Co. v. EPA, 18 F. Supp. 2d 138 (D. Mass. 1998).
In a decision involving copies of records "sent from a federal agency to a state agency in the course of a coordinated regulatory effort," United States District Court Judge William G. Young held that such records are eligible for deliberative process privilege protection under Exemption 5. The requester, which sought documents that were generated by EPA and were forwarded to the States of Massachusetts and Connecticut relating to PCB contamination in western Massachusetts, argued that the deliberative process privilege "does not apply to information that has been shared with state administrative agencies." Observing first that "there is no broadly applicable state-federal 'co-regulatory' privilege," Judge Young then went on to declare that "[t]he boundaries of the federal executive deliberative process privilege in this co-regulatory situation extend only so far as is necessary to protect actual federal deliberative processes." He then concluded that records reflecting "agency requests for data, if revelatory of federal deliberative processes, do not lose their privileged status when transmitted to state 'consultants.'"
Accuracy in Media, Inc. v. National Park Serv., No. 97-2109, 1998 U.S. Dist. LEXIS 18373 (D.D.C. Nov. 12, 1998) (appeal filed).
In a decision involving the investigation of the suicide of White House Deputy Counsel Vincent Foster, United States District Court Judge Thomas F. Hogan ruled that Exemption 7(C) protects autopsy and death scene photographs. The requester charged that the courts had created "'a family grief' exemption to the FOIA, [thereby] committing an abuse of judicial power," but Judge Hogan, after extensively surveying the case law, found not only that "the family of Mr. Foster has a legitimate and substantial privacy interest in the photographs," but that "[t]here is no doubt that the family would suffer additional grief from the release of the photos, and likely further harassment." The requester then argued that disclosure would serve the public interest by "monitoring the government's administration of justice," clarifying "alleged inconsistencies concerning Mr. Foster's fatal wounds," setting to rest whether "Park Police observed the entire autopsy," and clearing up "the possible missing status of other body photos," but Judge Hogan ruled that "the only possible resolution that [disclosure] could effect is to reveal the true nature of the fatal wounds" and even that would not outweigh the family's privacy interest.
Weatherhead v. United States, 157 F.3d 735 (9th Cir. 1998), reh'g en banc denied, No. 96-36260 (9th Cir. Feb. 26, 1999).
In a surprising Exemption 1 loss, the Court of Appeals
for the Ninth Circuit, in a 2-1 decision, overruled a district
court order upholding the Department of State's classification
of a letter from the British Foreign Office. The requester, an
attorney for two former members of the Rajneeshpuran commune who
were residing in Great Britain at the time they
were charged with conspiracy to murder the United States
Attorney for the District of Oregon, sought the letter in connection
with their extradition. An Assistant Secretary of
State attested that "it is longstanding custom and accepted
practice in international relations to extend 'diplomatic confidentiality'
to information exchanged between governments"
and that in this case the British Government not only stated
that it expected the information to "remain confidential," but
it had previously denied a request made directly to it. He
went on to swear that disclosure would "damage relations between
the U.S. and Britain, and between the U.S. and other
governments" because they "could well conclude that the
U.S. cannot be trusted to protect confidential information."
Nevertheless, the panel ruled that "the government never met
its burden of identifying [and] describing any damage to national
security that will result from release of the letter" and
flatly refused to give any deference to the agency's judgment,
stating that "[c]lassification decisions are not given deference
Council for a Livable World v. United States Dep't of State, No. 96-1807 (D.D.C. Nov. 23, 1998).
In another Exemption 1 loss, United States District Court Judge Henry H. Kennedy,
Jr. ruled that the State Department failed to follow Executive Order 12,958's
procedures governing classification officials. The requester, an organization
interested in arms control and disarmament issues, sought records about the
agency's "post-licensing verification" of the sales to foreign countries
of particular arms though the export license program. After an initial ruling
that certain of the requested records were not protected under Exemption 3 by
the Arms Export Control Act, the agency classified them and stated that they
were protected by Exemption 1. Judge Kennedy ruled, however, that the official
who made the classification determinations--the Information and Privacy Coordinator
-- did not qualify under
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