The FOIA blog

Court Rules Postal Investigator Names Must Be Released

United States District Court Judge John Bates for the District of Columbia has ruled that Postal Investigators who were investigating identity fraud must be disclosed.  The main reason for the Court's finding is that the agency failed to provide anything more than a conclusory statement in its declarations when asserting the employee's privacy rights, which were then outweighed by the public interest finding that these individuals may be needed to testify in a civil suit.

3rd Circuit Rules Exemption 7(C) Personal Privacy Extends to Corporations

The 3rd Circuit Court of Appeals has ruled that corporations can have personal privacy that is protected pursuant to FOIA Exemption 7(C).  The case came about when the FCC ordered the release of an investigation of ATT and ATT took the case to the 3rd Circuit under jurisdictional rules that apply to FCC matters.  As such, it was a little different from the normal FOIA case that goes through an administrative appeal and district court review.  The sole legal issue was whether the personal privacy protections of Exemption 7(C) applied to corporations and the three judges reviewing the case found that it did based on the wording of the FOIA.  The Court remanded the case back the FCC for more administrative proceedings, namely the FCC now must weigh the public interest in disclosure against the personal privacy of ATT.

Law.com has more on the case here.

At first blush, I think that if the decision sticks, the public will find out much less about corporate acts that are investigated by the government.  This will not help the public or stockholders in the long run.  Down the road, Congress may need to get involved to stress that 7(C) protection applies only to individuals. 

Office of Pardon Attorney Must Disclose Names of Those Denied Pardons by Bush

The Office of the Pardon Attorney, a component of the Department of Justice has lost a decision in which they attempted to withhold the names of individuals who were denied pardons by former President George W. Bush. 

In a case brought by journalist George Lardner, United States District Judge Coleen Kollar-Kotelly for the District of Columbia ruled that the names of these individuals were not protected by FOIA exemptions 6 and 7(c) and must be released.  Initially, the court found that collateral estoppel did not bar the government from litigating the case.  Lardner claimed that a previous case he brought estopped the government from litigating this one.  However, the court found the FOIA requests were different enough that the government could press its case for nondisclosure. 

Unfortunately for the government, the case it pressed did not convince the court.  The court found that the public interest in disclosure outweighed the minimal interest in privacy that pardon applicants had.  Thus, exemption 6 did not apply to the names of pardon applicants.  Further, the court found that the records at issue were not law enforcement records and exemption 7(c) did not apply to withhold them either. As no exemption was found to be applicable, the court ordered the names of the pardon applicants to be released to Lardner.

Justice Department Loses Blanket Exemption 6/7(C) Withholding Decision

Judge Richard Leon of the District Court for the District of Columbia has ruled that the Department of Justice cannot use a blanket privacy withholding to block access to records pertaining to documents related to the shooting of a fleeing drug smuggler.

Judicial Watch had requested the records from the government.  The Executive Office for United States Attorneys had said, without doing a document by document review, that they were exempt pursuant to FOIA Exemption 6 and 7(C).  Judicial Watch disagreed with this position and sued.  The Court agreed with Judicial Watch, explaining that the records would show what the goverment was up to and on balance, without a further examination of each individual document, the public interest outweighed the privacy interests in the information.

The government will now process the records and either release them or provide a detailed justification for withholding the material.

IRS Can Withhold Third Party Contact Names and Information From Audit

Federal District Judge for the District of Columbia Rosemary M. Collyer has ruled that the Internal Revenue Service ("IRS") can withhold the names of third parties contacted in an audit as well as notes taken during the interviews and the information they provided to the IRS.  The judge held that the names were withholdable pursuant to FOIA Exemption 7(C).  The notes and information provided by the third parties were held withholdable pursuant to Exemption 7(A). 

As Exemption 7(A) is temporal and only lasts as long as the audit or subsequent prosecution (if there is one) is open, these documents may be subject to further requests in the future. 

Detainee Photos Ordered Disclosable by Appeals Court

The United States Court of Appeals for the Second Circuit has affirmed a lower court ruling that the government must release 21 photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan.  The suit was brought by the ACLU.

On appeal, the government asserted that the release of the photos should be withheld pursuant to Exemption 7(F) because release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan as well as Exemption 6 and 7(C) to protect the detainees themselves.

In a 52 page holding, the court found that exemption 7(F) does not apply to the case at hand and that redactions ordered by the district court make exemption 6 and 7(C) unavailable to the government in this case.  The decision is noteworthy on its lengthy discussion of 7(F), which is not an exemption prone to detailed analysis.  Here it takes center stage.  Additionally, a detailed analysis of the Geneva convention is offered with regard to the actual privacy of the detainees

 

FBI Loses Informant Case

The FBI has lost its attempt to protect information about its relationship with a confidential informant.  Judge James Robertson of the District Court for the District of Columbia has ruled that the FBI must release information about the FBI's relationship with informant Manny Sanchez to requester Peter J. Hidalgo.  Hidalgo was found guilty of various crimes, due in part, to information provided by Sanchez.

Hidalgo offered evidence that Sanchez had a shady past--and that the FBI assisted him in escaping his various scrapes with the law.  The FBI released one page in part of a 3000 page file, claiming various exemptions to withhold the rest.  However, Judge Robertson found that certain of the FBI's claims were not valid. 

The FBI was ordered to release the amount of payments to Sanchez by the FBI.  In making this finding the judge said that the declaration of David Hardy was insufficient to allow the material to be withheld pursuant to FOIA exemptions 2 and 7(E).

The FBI was next ordered to release information concerning its relationship with Sanchez.  The information that should be released includes material reflecting any FBI misconduct in its relationship with Sanchez, its knowledge of his criminal record, its knowledge of administrative complaints regarding his work, and the FBI's intervention on Sanchez's behalf in criminal matters, including tax evasion.

Not all was lost for the FBI as its use of exemption 7(A) was affirmed by the Court for information provided by the source on the investigations he assisted on.

IRS Loses Collateral Estoppel Argument

The IRS has lost a decision in which the plaintiff argued that a decision in a non-FOIA that certain privileges were not available for documents estopped the IRS from arguing that the same privileges were still applicable in the FOIA context.

The case of Stonehill v. Internal Revenue Service involves records created in the 1960's.  The estate of Stonehill is currently trying to reverse a previous tax judgment against it, and is seeking the documents in numerous forums to assist in this fight. 

The IRS argued that documents it withheld were exempt pursuant to FOIA exemptions 5, 6 and 7(C).  Plaintiff contested these exemptions, and in many cases, the Court agreed with plaintiff.

Judge John D. Bates of the District Court for the District of Columbia has held that collateral estoppel (issue preclusion) denies the IRS from asserting exemption 5 privileges that were previously denied in a non-FOIA Federal Rules of Civil Procedure Rule 60(b) case.  In other words, if the IRS lost its privilege arguments in another court, even if it wasn't a FOIA case, they can't assert those privileges in the FOIA matter.  However, the IRS did not waive other privileges or withholdings on where those privilege/withholding arguments were not previously made.

The IRS also lost its argument to withhold certain information pursuant to FOIA exemption 6/7C (the privacy exemptions).  The IRS was attempting to withhold the names of certain IRS special agents.  The Court found that the government failed to show a privacy interest in one agents name where, in this case, other agents have been previously identified in the matter.  Thus, the Court concluded, the public interest asserted by the plaintiff is greater than the negligible privacy interest identified by the government.

Government Loses Rehearing Bid in Trentadue Case

According to the Salt Lake Tribune, The 10th Circuit Court of Appeals has rejected the government's bid to overturn the Court's decision in a FOIA case brought by Jessie Trentadue.  the government argued that the order will violate the privacy of lower-level government employees and allow Trentadue to engage in unwarranted "fishing expeditions."  The suit seeks documents held by the President's Council on Integrity and Efficiency, an agency that investigates allegations of wrongdoing by federal law enforcement officers. A Utah federal district Judge upheld the government's denial of records, but a three-judge panel of the 10th Circuit ruled in September that most of the information must be disclosed.

My original analysis of the original decision can be found here.

Tenth Circuit Issues Major FOIA Decision

The Tenth Circuit Court of Appeals has decided a case that sets standards that are much more pro-disclosure than similar decision of some of the other Courts of Appeals.  This case revolves around Jesse Trentadue's attempt to get certain documents submitted by the Department of Justice's Office of the Inspector General ("OIG") concerning an investigation of the OIG by the Integrity Committee, a subdivision of the President's Council on Integrity and Efficiency.  Trentadue lost his lawsuit at the District Court level--the District Court for the District of Utah had granted summary judgment for the government. 

The Tenth Circuit found that Exemption 5 did not apply to much of the factual material in the withheld documents.  In making this decision. the Court found that factual material in otherwise deliberative material could only be withheld where disclosure would so expose the deliberative process that the material must be exempt.  The Court found that the factual information in the responsive documents did not meet this standard and must be released.

The Court next found that the identity of certain individuals could not be withheld pursuant to FOIA Exemption 6 where the identity of the individuals had previously been identified in a separate but related public document.  The Court also ruled that the public interest outweighed the privacy interests of these individuals and this information was not protected pursuant to FOIA Exemption 7(C).