Each year, hundreds of FOIA cases are decided by federal district and circuit courts and 2007 was no different. This year, three opinions, two at the appeals court level and one at the district court level, I felt, have implications that go beyond the individual case the opinion was rendered in.
At the district court level, the opinion in People for the American Way Foundation v. Department of Education, the District Court for the District of Columbia found in a lengthy analysis, that under the Supreme Court's holding in Dep't of the Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), documents exchanged between the government and outside entities were not "intra or inter agency" and therefore were not protected pursuant to Exemption 5.
At the appeals court level, I submit that the United States Court of Appeals for the Tenth Circuit's decision in a case brought by Jesse Trentadue in his 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 is one of the most important decisions of the year.
Trentadue lost his lawsuit at the District Court level--the District Court for the District of Utah had granted summary judgment for the government. However, 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. he Court also 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).
The government's motion for reconsideration of this opinion was later denied, making this decision the law of the Tenth Circuit, which would now be a very good place to bring a FOIA lawsuit.
The other major decision this year is the recent decision by the United States Circuit Court for the District of Columbia brought by Jefferson Morley against the CIA where the appeals court reversed a lower court ruling for the CIA, requester Jefferson Morley sought records on George Joannides, a deceased CIA agent.
The Circuit Court found that the CIA's search wasn't adequate as it hadn't search usually FOIA exempt operational files because in this case there was an exception that made these files non-exempt from the FOIA in their entirety. The Court remanded the case back to the lower court for the CIA to search its operational files. Further, the CIA was ordered to search JFK act files that it had transferred to NARA, but had admitted to keeping copies of as well as to sent to NARA but that aren't to be released to the public until 2017. Finally, the Court found the CIA's description of its search inadequate and remanded the case for a further explanation of the search.
While the Circuit Court found the CIA Vaughn Index adequate, it found the lower court did not make a segregability finding and remanded the case for it to do so. The Circuit Court also found that the CIA had properly justified its use of Exemptions 1, 3 and 7(E).
However, the Court found a number of deficiencies with other exemptions and remanded those portion of the case for further agency explanation. The Court found that as to Exemption 2, the CIA did not meet its burden in establishing its use of low-2 to withhold certain material and remanded for further explanation. Likewise, the Court found that the CIA's defense of it's glomar response was also inadequate and remanded that portion of the case for further explanation. Next, the Court found that the CIA's justification of Exemption 5 was inadequate, thus on remand the CIA will have to explain that exemption's use further. Finally, the Court also found that the CIA's justification of exemption 6 was inadequate as it never established that any privacy interest in the withheld records existed.a FOIA lawsuit.
With this decision, the D.C. Circuit, where the most FOIA appeals are brought, stated that it won't just rubber stamp agency decisions on FOIA actions. This may be one of the best things to happen for requesters in 2007.