In sum,
government agencies now must await a final ruling in this case before knowing
with certainty whether the law of the D.C. Circuit has conclusively shifted
along the lines of the opinion written by the McDonnell Douglas II
panel majority. Further action by the D.C. Circuit on the pending rehearing
petition (or perhaps by the United States Supreme Court, if necessary) can be
expected to have an impact on agency decisionmaking on such Exemption 4 issues
as a matter of sound administrative practice and policy. No matter what conclusive
development eventually occurs, the Office of Information and Privacy will provide
governmentwide policy guidance based upon it -- and agencies should continue
to follow existing policy guidance on the treatment of unit prices under the
FOIA (see FOIA Post, "Treatment
of Unit Prices Under Exemption 4" (posted 5/29/02); Freedom
of Information Act Guide & Privacy Act Overview (May 2004), at
340 & n.384, 344 & n.406) in their FOIA decisionmaking in the meantime.
Accord FOIA
Update, Vol. IX, No. 2, at 3-4 ("OIP Guidance: Privacy Protection
in the Wake of the Reporters Committee Decision") (advising that agencies
"should continue" existing administrative practices in FOIA decisionmaking under
comparable circumstances of further judicial review). (posted 10/7/04)
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