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Supreme Court Is Asked to Review Law Enforcement Case

The Department of Justice has asked the United States Supreme Court to review a Freedom of Information Act case that involves both sensitive law enforcement records and an extraordinary issue of exemption waiver under the Act. The case raises a new question about the proper use of Exemption 7(A) of the FOIA, 5 U.S.C. ยง 552(b)(7)(A) (1994 & Supp. V 1999), which protects investigatory and prosecutorial files during the pendency of a law enforcement proceeding.

The Justice Department filed a petition for certiorari with the Supreme Court on March 29 in the case of United States Dep't of Justice v. Maydak, 69 U.S.L.W. 3657 (U.S. Mar. 29, 2001) (No. 00-1507), asking the Court to review and overturn a decision by the Court of Appeals for the District of Columbia Circuit that ordered the disclosure of hundreds of law enforcement records that previously had been withheld by the Justice Department under Exemption 7(A) in an ongoing criminal case. Those records include more than one thousand pages of grand jury records, which are required to be kept secret under federal law but nevertheless were swept up in an unprecedented disclosure order by the D.C. Circuit when it abruptly established a new "rule" for handling active law enforcement case files under the FOIA -- and then applied it retroactively to find other FOIA exemptions waived by the agency for failure to comply. Maydak v. United States Dep't of Justice, 218 F.3d 760, 767-68 (D.C. Cir. 2000), reh'g en banc denied, No. 98-5492 (D.C. Cir. Oct. 30, 2000), stay granted (D.C. Cir. Nov. 29, 2000).

The Maydak case started out in 1994 like most other FOIA cases that involve Exemption 7(A). The FOIA requester was Keith Maydak, who recently had been convicted of several counts of fraud and money laundering and was serving a lengthy prison term in Pennsylvania. He made a FOIA request for, in effect, the entirety of his prosecution files, and it was acted upon by the Justice Department's Executive Office for United States Attorneys. At that time, Maydak and a co-defendant had filed appeals of their convictions, and several other post-conviction motions, so the agency invoked Exemption 7(A) to categorically withhold all of the files on that basis, as a matter of routine.

In 1997, Maydak filed a FOIA lawsuit seeking these files. Because his challenges to his conviction remained pending at that time, the agency continued to apply Exemption 7(A) and it moved for summary judgment in the case, specifically justifying the categorical withholding of the files on Exemption 7(A) grounds. At the same time, the agency more generally advised the district court that several other interests and corresponding FOIA exemptions underlay the Exemption 7(A) withholding, including such matters as grand jury secrecy (protected by Exemption 3), attorney work product (protected by Exemption 5), personal privacy (protected by Exemption 7(C)), and confidential source information (protected by Exemption 7(D)). In accordance with longstanding practice in Exemption 7(A) cases, at the administrative level as well as in court, the agency did not individually "process" the records involved to establish exactly where each underlying exemption applied throughout the files; rather, it simply employed Exemption 7(A) categorically. See FOIA Update, Vol. V, No. 2, at 3-4 ("FOIA Counselor: The 'Generic' Aspect of Exemption 7(A)").

In September of 1998, the district court granted summary judgment to the agency on Exemption 7(A) grounds, ruling that "plaintiff has post-conviction motions and appeals pending and if these result in a new trial, plaintiff would have the benefit of the government's work product." Maydak v. United States Dep't of Justice, No. 97-1830, slip op. at 3-4 (D.D.C. Sept. 1, 1998). The district court did not consider, nor did it need to, the applicability of any additional underlying FOIA exemptions at that time.

Maydak then appealed. During the time when briefs were being prepared in that FOIA appeal, however, the long-pending appeals of Maydak's conviction (and that of his co-defendant) were denied with sufficient finality that a criminal retrial was no longer in realistic prospect -- which thereby removed the need for the agency to withhold Maydak's files from him under Exemption 7(A). Accordingly, and assuming that Maydak was still interested in pursuing access to those files, the agency then moved to remand the case so that the files could for the first time be processed, and if necessary defended, on the basis of their underlying FOIA exemptions.

But for the first time in any such FOIA case on appeal, the D.C. Circuit flatly refused to allow this. Rather, in a decision authored by Circuit Court Judge David B. Sentelle and joined by Circuit Court Judges Lawrence H. Silberman and Judith W. Rogers, the D.C. Circuit took a sharply different approach to Exemption 7(A). It chose to conclude that the agency had effectively "waived" its right to invoke all underlying exemptions because the agency, it said, had not complied with "a general rule [that] it must assert all exemptions at the same time, in the original district court proceedings." 218 F.3d at 764-65. This D.C. Circuit panel simply failed to see any good reason to give Exemption 7(A) what it called "preferential treatment" in this regard. Id. at 766. Because of this, it ruled, the appropriate next step was not a remand for individual document processing, but rather "the release of all requested documents to the appellant." Id. at 769.

The D.C. Circuit ruled this way even though the underlying facts of the case had changed during the course of the litigation, even though that change struck to the very heart of Exemption 7(A), and even though it was unprecedented for an appellate court to rule in such a fashion in a FOIA case -- especially one involving such sensitive law enforcement records. In fact, the D.C. Circuit's opinion contains little if any indication of its awareness that it actually was ordering the disclosure of highly sensitive grand jury records -- a judicial action that had never before occurred in the history of the FOIA.

In asking the Supreme Court to review this very troubling D.C. Circuit decision, the Solicitor General has pointed to its unprecedented nature, to its sharp departure from Supreme Court case law (as well as that of other circuit courts of appeals), and to its utterly unrealistic approach to the operation of Exemption 7(A). In the words of the Justice Department's certiorari petition, the Maydak decision

force(s) upon the government, at the behest of any criminal or incarcerated prisoner, the Hobson's Choice of either providing the type of detailed and individualized document analysis that Congress specifically designed Exemption 7(A) to avoid, or invoking Exemption 7(A)'s categorical protection but forfeiting the right to raise most other exemptions if and when Exemption 7(A)'s protection expires.

Petition for a Writ of Certiorari at 21-22, United States Dep't of Justice v. Maydak, 69 U.S.L.W. 3657 (U.S. Mar. 29, 2001) (No. 00-1507) (citation omitted). Further, the Solicitor General pointed out, the D.C. Circuit in Maydak

has prescribed an unworkable procedure that has already begun to interfere with pending enforcement proceedings and that, at best, will impose unwarranted litigation burdens on the federal government and district courts [and] needlessly prolong FOIA litigation.

Id. at 8. In sum, the Solicitor General characterized the Maydak decision as threatening a "profound incursion" on the practical way in which FOIA requests and FOIA lawsuits involving Exemption 7(A) have been handled by both agencies and the courts for more than thirty years. Id. at 23.

With the certiorari petition in Maydak filed in early spring, and the opposition to it currently due to be filed in early June, it is possible that the Supreme Court will act on the petition before the end of its current Term in late June or early July. Otherwise, the Court most likely will announce its decision on whether to accept the case when it reconvenes next fall on the first Monday of October. In either case, if it grants certiorari, the Supreme Court likely will hear oral argument in the case at the end of this year or the beginning of next year and then issue its decision by no later than early summer 2002.   (posted 5/30/01)

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