FOIA Update
Vol. XVII, No. 2
1996

Oregon Natural Desert Ass'n v. Bibles, 83 F.3d 1168 (9th Cir. 1996).

In yet another decision involving a mailing list, a divided panel of the Court of Appeals for the Ninth Circuit has held that Exemption 6 does not protect the names and home addresses of individuals who receive a Bureau of Land Management newsletter. The panel majority found a "substantial public interest in knowing to whom the government is directing information . . . so that those persons may receive information from other sources that do not share the BLM's self-interest in presenting government activities in the most favorable light." Balanced against this, it found only a "minimal" privacy interest "in light of the mailings already received by the individuals and the similar subject matter of the mailings likely to be received as a result of the disclosure." In a sharp dissent, Judge Ferdinand F. Fernandez accused the panel of "allow[ing] curiosity and gain to trump privacy," pointing out that this list "convey[s] more information about the recipient than a mere name and address." On the public interest side of the balance, he reasoned that "the information that a mailing list will give the public about what the government is up to is minuscule or nil," particularly when the requester "does not really want to check on the government; it wants to contact the people on the list." A petition for rehearing en banc has been filed.

Mittleman v. OPM, 76 F.3d 1240 (D.C. Cir. 1996).

Acting on an issue in dispute among several district courts, the Court of Appeals for the D.C. Circuit has held that a background investigation for government employment conducted by the Office of Personnel Management satisfies the threshold requirement of Exemption 7. The requester, who had failed to obtain the identities of confidential sources in a prior Privacy Act lawsuit, now sought this information under the FOIA. Observing that the term "law enforcement purpose" includes "not merely the detection and punishment of violations of law but their prevention," the D.C. Circuit relied on several statutes, as well as Executive Order 10,450, to find that OPM had abundant "authori[ty] to perform personnel background investigations." It then ruled that although the "principal purpose of a background investigation is to ensure that a prospective employee has not broken the law or engaged in other conduct making her ineligible for the position," it was "immaterial to those objectives that OPM did not discover any information suggesting that Mittleman actually violated the law."

McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996).

In a complex "reverse" FOIA decision involving a dispute over the "voluntary" or "required" nature of a submission, United States District Court Judge Catherine D. Perry rejected the EEOC's position that documents provided after they had been subpoenaed were "required," and she instead broadly ruled that they had been "produced voluntarily" and therefore were protected under the Critical Mass test for confidentiality. The case arose as a result of the EEOC's proposed disclosure of "adverse impact analyses" prepared by McDonnell Douglas after the company had terminated 10,000 employees -- which, in turn, triggered the filing of numerous discrimination charges. Although the analyses were provided to the EEOC after it had subpoenaed them, Judge Perry ruled that "[t]he mere existence of agency subpoena power cannot . . . mean that any document that is produced pursuant to subpoena is 'required,'" as such a position "ignores the fact that subpoenaed parties may challenge" a subpoena. McDonnell Douglas had not challenged the subpoena, but because courts had "repeatedly ruled that the documents were privileged and did not have to be produced in discovery with private litigants," she found it was "highly likely that if the EEOC had attempted to enforce the subpoena" a court would have similarly ruled "that the documents were privileged and need not be produced." Thus, Judge Perry ruled, the submission "in fact was voluntary, not required." Additionally, she found the documents to be protected by the attorney-client privilege under Exemption 4.

Schiffer v. FBI, 78 F.3d 1405 (9th Cir. 1996).

Rejecting the proposition that an individual's privacy interest is diminished simply because much of the requested information was at one time public, the Court of Appeals for the Ninth Circuit also overturned a district court's attempt to diminish the adverse effect of its order by limiting disclosure to the requester. The requester -- who contended that a former business partner had falsely accused him of hiring a "hit man" -- sought the FBI files regarding this alleged murder-for-hire plot. Finding that the persons named in the FBI documents had already become known to the requester in the course of his six years of civil litigation with the former partner, the district court rejected the FBI's use of Exemption 7(C) and ordered disclosure. However, it directed the requester not to reveal the contents of the documents or make copies available to anyone. Although noting that "much of the information contained in the requested documents [had been] disclosed" in civil litigation, the Ninth Circuit nonetheless ruled that all the documents had been correctly withheld pursuant to Exemption 7(C), finding that the district court had improperly focused on the identity of the requester and the personal use for which the information was sought. Relying on Reporters Committee, it rejected the notion that the disclosure of information in civil litigation in any way precluded its withholding under the FOIA, and it flatly declared that limiting the disclosure solely to the requester was "not authorized by FOIA."

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