The United States Court of Appeals for the District of Columbia has remanded a case brought by Stolt-Neilsen Transportation Group against the Department of Justice's Antitrust Division for further findings.
The request was for all amnesty agreements entered into by DOJ's Antitrust Division since 1993. DOJ denied the request and a lawsuit filed. The district court ruled for the government, finding that FOIA exemptions 2, 3, 5,6, 7(A), 7(C) and 7(D) protected the requested information. Plaintiff appealed and on appeal the government withdrew all of its cited exemptions except for exemptions 7(A) and 7(D).
The Court of Appeals found that exemptions 7(A) and 7(D) may very well apply to the withheld documents. However, the court found that there was no adequate finding of segregability made by the district court, and therefore, it declined to rule on the ultimate disposition of the case. Instead, the case has been remanded to the lower court for a finding of whether there is any material that can be segregated from material that may be withholdable pursuant to the two exemptions. The court also took pains to let the government know that it was wise to not push on the other exemptions as the court felt that many, if not all of them, would not have been found acceptable on appeal.
The court noted that segregable doesn't mean helpful information, just that it isn't protected by a valid exemption (Years ago, I was in a status hearing with Judge Oberdorfer of the District of Columbia District Court and he uttered the greatest segregability standard I've ever heard "even if its gobblygook, you need to give them the gobblygook."). The case will now go back to the D.C. District Court for further proceedings.
This editorial from the Hawaii Reporter asks a very important question. Why isn't Congress covered by the FOIA? Wouldn't we all benefit from some sunshine placed on the legislative branch of our national government?
The United States Court of Appeals for the D.C. Circuit has ruledthat the Transportation Recall Enhancement, Accountability and Documentation ("TREAD") Act, Pub. L. No. 106-414, 114 Stat. 1800 (2000) is not an Exemption 3 Statute under the FOIA.
Aside from the decision in this case, the procedural aspect of this litigation is fairly interesting in that it doesn't involve a FOIA request. In promulgating regulations under the TREAD act, The Department of Transportation set forth proposed regulations finding that some information provided by tire manufactures was protectible by Exemption 4 of the FOIA, but not Exemption 3. The Rubber Manufacturers Association ("RMA") argued that the information was covered by both Exemption 3 and 4. Public Citizen argued that it was neither. Public Citizen filed suit in district court over the regulations, RMA intervened, and the district court eventually came up with the same answer that the Transportation Department had arrived at (yes to 4, no to 3).
The appeals court affirmed the district court decision with a detailed description of why this statute is not an Exemption 3 statute. Another interesting aspect of this case saw Public Citizen and the government arguing the same side (no to 3), with the RMA (and its attorney Eugene Scalia) arguing for the Exemption. It is very rare for the government to argue that information is not covered by an Exemption 3 statute (even though many requesters would like to see it happen more often).
Sunshine Week, a group dedicated to open records, has announced a website that will assist those with writing letters to the editor for various newspapers on the topic of open records.
If only there was a site that allowed one to get similar assistance in writing those inane letters to People Magazine about how much they really like a certain celebrity (or pseudo-celebrity) and that the press should just leave them alone. Do you know how hard it is to write a letter praising Lindsay Lohan's mother? That would be really useful.
The Washington Post reports that Senators Charles Grassley (R. Iowa) and Arlen Specter (R. PA) have introduced legislation that makes the Smithsonian Institution subject to the FOIA. Currently, the Smithsonian will take FOIA requests but can choose to give what it wants and there is no recourse on requests it denies.
I think this is a great idea. However, I wouldn't stop there. I'd add the Public Company Accounting Oversight Board (PCAOB), Fannie Mae and Freddy Mac. Making those quasi-governmental bodies subject to FOIA may help prevent future economic meltdowns like the ones we are currently experiencing.
This AP story discusses the Michigan Supreme Court's rulings on two state FOIA cases that came before it. In both cases, personal privacy beat out requester's rights. Links to the actual cases are provided on the last page of the story.
A court in the state of Washington will have to decide if a body made up of entirely public groups is covered by the state's public records law. This article by Daniel Lathrop of the Seattle P-I describes one mans battle to get records from the Association of Washington Cities. As the article states, the Court will decide how to proceed on the matter.
The National Security Archive's Lawsuit against the CIA concerning the CIA's refusal to give the Archive news media status has been dismissed as moot.
The Archive brought the suit after the CIA reversed a long standing position and refused to give the Archive fee waivers on 43 requests it had made. The CIA instead told the Archive to prove it deserved a fee waiver as a member of the news media on each of the 43 requests individually. However, after the lawsuit was brought, the CIA reversed itself and has stated that it will treat the Archive as a member of the news media in the future. Thus, Judge Gladys Kessler of the United States District Court for the District of Columbia dismissed the lawsuit as moot and refused to rule on a pattern and practice claim as she stated it would merely be an advisory opinion, which is not permitted under law.