The FOIA blog

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).

D.C. Circuit Issues Major FOIA/Privacy Act Decision

The D.C. Circuit has issued an opinion in the case of Michael Sussman v. U.S. Marshals Service which touches on a number of FOIA and Privacy Act ("PA") issues.  The procedural history of the case is complex and somewhat confusing--in short Sussman was appealing a D.C. District Court grant of summary judgment for the Marshal Service pertaining to Sussman's FOIA and PA requests to the Marshals Service and an allegation of a PA violation by the Marshals Service.  The Circuit Court remanded many of the grants of summary judgment on the FOIA request and all matters concerning the PA.  I'll try to touch on the major points of the decision.

The Court remanded the District Courts finding on FOIA exemptions 2, 3, 7(A) and 7(C).  While the Court held that certain internet addresses were ok to withhold pursuant to exemption 2, it found that the government did not meet its burden of proof for this exemption on material it described as "information reflecting communications between agencies" and remanded the withholding of that information back to the District Court for further findings.  The invocation of exemption 3 for information pertaining to grand jury proceedings (FRCP Rule 6(e)) was also remanded for further findings because the agency did not properly show that disclosure of the information would violate FRCP Rule 6(e).

Findings related to the government's use of Exemption 7(A) were remanded as well.  The agency's declarations did not show how disclosure would reveal the focus of a grand jury investigation which would in turn cause interference to the investigation.  Further, on remand, the ongoing proceedings must be pending at the time of the District Court's decision, not at the time of the earlier FOIA request.  Those knowledgable with FOIA issues, know this is a further explanation to a line of cases following the Court's Maydak v. Department of Justice decision decided in 2000.

As to Exemption 7(C), the Court remanded the issue so that the District Court could decide if a third party gave an adequate waiver for FOIA purposes.  The Court found that the issues surrounding the waiver of the third party, even though it arrived late in the proceedings, must still be decided by the District Court.

Procedurally, the Court reiterated its now long standing policy that District Courts must make a segregation finding for its decision to be properly made.  The Court also found that an agency's invocation of an exemption on a motion for reconsideration did not waive the exemption.

Finally, the PA count was remanded because the District Court only addressed the search efforts of the government in terms of FOIA, not the PA.  The search under PA is important because it will determine if the records pertaining to the requester were found in documents located in PA systems of records.  The unlawful disclosure count of the complaint was also referred to the District Court for further findings.

This case is important because of the many areas the Circuit Court made specific findings on areas of FOIA law.  I probably missed some of them, but I'm sure others, such as the fine newsletter accessreports will have an extensive overview of this case in the near future.

Bureau of Prisons Fails to Establish Law Enforcement Threshhold

In a pro se lawsuit against it, the Bureau of Prisons ("BOP") has been denied summary judgment on its use of a glomar ("neither confirm nor deny that records exist") response on a request for disciplinary records of a BOP employee.  Judge Rosemary M. Collyer held that the BOP failed to establish that the disciplinary records of a former BOP employee were law enforcement records within the scope of Exemption 7.  The BOP will now have to file new declarations and briefs to establish this before summary judgment can be granted.

OSHA Suffers Defeat on Beryllium Sampling Database

Dr. Adam M. Finkel, Plaintiff in a lawsuit against OSHA has been handed a victory in his attempt to gain access to database information held by OSHA.  Dr. Finkel made two requests to OSHA.  One seeking the contents of an OSHA database on toxic exposures and the second seeking anonymized information about the results of Beryllium sensitization tests conducted on OSHA inspectors.  The government denied both requests and Dr. Finkel sued.

In a 28 page opinion ( Download finkel.pdf ), Judge Mary L. Cooper of the District of New Jersey ruled against OSHA on three different FOIA exemptions (4, 6 and 7(C)) and granted summary judgment for the plaintiff.

Judge Cooper found that OSHA's had not established that some of this information was either Trade Secrets or Confidential Commercial Information.  The Judge found that OSHA's argument that two (2) percent of the data was trade secret information but that trade secrets were only designated in the individual files not the requested database does not allow the government to not segregate and release the 98% of the information that it does not consider trade secrets.  Further, the Judge found that OSHA's argument that the release of Inspector ID numbers, OSHA Office ID numbers and dates of inspections would through a mosaic theory allow employer identities to be revealed was too tenuous of an argument to allow those types of information to be considered trade secrets.

The Judge further found that the information OSHA considered confidential business information to not  have been provided voluntarily too the government even though OSHA did not seek a warrant for the information.  The Court found that OSHA obtained the information through its regulatory authority for workplace inspections pursuant to 29 U.S.C. Section 657(a) and the fact that they didn't need warrants was irrelevant.  Further, OSHA's argument that an increase in seeking warrants will hurt the quality of the material inspected because it will allow companies to clean up areas while waiting for the warrants was shot down by the Court.  The Court pointed out that if this becomes a problem, OSHA can obtain ex parte warrants in advance if necessary.

The Court found that OSHA didn't meet its burden under Exemption 6 of demonstrating that Coded ID numbers of employees would reveal their names and harm their privacy interests.

Finally, the Court found that while the records were created for law enforcement purposes, the public interest in disclosing the information will increase the publics understanding of beryllium sensitization and OSHA's response to it.  Ultimately, the Court found that the public interest outweighed any limited privacy interest in inspection employee ID numbers.

More information on this lawsuit can be found here.

Recording of Witness to Roy Horn Tiger Attack Goes In Camera

In one of the most interesting FOIA opinions in recent memory, Judge Rosemary M. Collyer of the United States District Court for the District of Columbia has ruled for both plaintiff People for the Ethical Treatment of Animals ("PETA") and defendant United States Department of Agriculture ("USDA").

Judge Collyer held for the USDA in finding that the identities of low level Food Safety Inspection Services inspectors who were disciplined for job related misdeed were protected from release pursuant to FOIA Exemption 7(C).  However, Judge Collyer ruled for PETA in finding that USDA was required to release the name of the state where the Law Enforcement Military Ammunation Sales ("Le Mas") organization shot and killed pigs to demonstrate the efficiency of its bullets.  The demonstration allegedly took place before buyers from the U.S. law enforcement and military community.

Finally, the Judge ruled that the USDA must submit in camera a CD recording of a witness to the tiger attack on magician Roy Horn.  The USDA has stated that the CD doesn't relate, in any way, to USDA activities.  The Court will now listen to the tape and determine if that is correct.

Competitor's Information Given to US Attorney a Protectible Privacy Interest

The United States Court of Appeals for the First Circuit has recently ruled that information submitted by a business competitor during the course of an investigation is protected pursuant to Exemption 7(C) of the FOIA.

In Carpenter v. United States Department of Justice, No. 06-1489 (1st Cir. Dec. 12, 2006), plaintiff sought information a business competitor provided to the US Attorneys office during an investigation of the plaintiff.  The Court found this information could be protected pursuant to FOIA exemption 7(C) because the competitor's privacy interest overrode any public interest plaintiff could establish for this information.  As a side note, because plaintiff sought the information for his own use, the Court found that the plaintiff failed to establish a valid public interest in the release of this information.

Exemption 6 and 7(C) Case Remanded Back to District Court

The U.S. Circuit Court of Appeals for the District of Columbia has remanded a case concerning the use of Exemptions 6 and 7(C) to withhold certain records relating to the incarceration of illegal aliens.

The District Court had granted summary judgment in favor of the government based on previous FOIA case law holding that a balancing of privacy interests outweighed any public interest in disclosure of the documents.  However, the Circuit Court found that factual disputes of the parties disputes did not allow it to decide the legal questions presented before the Court.  Thus, the case was remanded back to the District Court to resolve the factual issues raised by the parties.

This case is worth watching.  Much of the previous precedent on the privacy exemptions of the FOIA (Exemptions 6 and 7(C)) dealing with criminal records of third parties was based on a presumption that the information sought under the FOIA was difficult to get on individuals because a requester would have to go courthouse to courthouse to get it.  The internet and electronic records has changed this equation and Courts will now have to take these technological advances into consideration when considering these types of FOIA claims.