The FOIA blog

FDA Loses Exemption 4 Case

The Food and Drug Administration has been ordered to disclose information on clinical studies of the drug known as Cipro by U.S. District Court Judge for the District of Columbia, Colleen Kollar-Kotelly.  The FDA had argued that certain of the information was confidential business information protected by FOIA exemption 4.  The court, however, disagreed and found that the FDA had failed to show "a likelihood of substantial and competitive injury."

I found the most interesting facet of this case is what is missing from it.  The FDA is trying to protect information provided by a submitter--but the submitter did not intervene as a defendant in the case, nor do they provide a declaration explaining why they would be harmed by the release of the information.  Instead, the government merely entered what the court considered to be conclusory statements about the competitive harm that would occur with the release of the documents.  

Reverse FOIA Suit Falls Flat

Judge Rosemary M. Collyer of the United States District Court for the District of Columbia has ruled in favor of the Federal Aviation Administration ("FAA") in a reverse FOIA lawsuit brought by the National Business Aviation Association ("NBAA") against the FAA. 

In the administrative portion of the case, the FAA, in responding to a request by Pro Publica, decided that the subject of the request,the block list of certain aircraft registration numbers, were not commercial business information and would be released to Pro Publica.  The NBAA then sued the FAA, attempting to block the release and force the FAA into using FOIA exemption 4 as the reason for withholding.  For those of you new to the FOIA, this is called a "Reverse-FOIA" lawsuit.

As way of background, the FAA releases information, in real time, on flights in the United States.  However, due to an agreement, certain aircraft registrations numbers are not released--they are on a block list which is created and provided to the FAA on a monthly basis.  Many planes on the block list are corporate jets used by high-ranking corporate officials.  The requester wanted this block list.

The requester, Pro Publica, entered the case as a defendant-intervenor.  After briefing on the issue, the Court issued its opinion.  Specifically, the judge found that the block list was not commercial information.  Specifically, she found that the harm stated by the plaintiff, that a requester could find out what corporate officials were up to by their flights and this would harm the corporations would not occur by the release of the information.  This is because even if the block list information was released pursuant to FOIA, it would be so far after the flight had occurred that the harm that plaintiff describes could just not occur.  Thus, FOIA exemption 4 does not protect the information.

Also important is a comment made by the Court where she states that FOIA Exemption 6 does not apply to corporations.  This is in conflict with a Third Circuit Court of Appeals casethat said corporations do have privacy, albeit for FOIA Exemption 7(C).

The information will now be released unless the NBAA files an appeal of the decision within 60 days.

Arguments Heard in Reverse-FOIA Action

The U.S. Court of Appeals heard arguments in a reverse-FOIA case on Monday that involved documents submitted to the government by United Technologies.  The blog of the Legal Times has this on the case.

For those of you who don't know what a reverse-FOIA is, it is when a submitter of records who has asked the government to withhold the records pursuant to exemption 4, loses at the administrative level and brings a lawsuit to enjoin the release of the documents.  It is called "reverse-FOIA" because it is a submitter that seeks protection under an exemption and the government wants to release information.

Plaintiff Wins FOIA Trial

In December of 2008, a rare FOIA trial was held in Federal District Court in the District of Columbia.  The issue was whether the submitter of the records would suffer competitive harm if the records were disclosed.  These records had been obtained by the United States Department of Agriculture during its investigation of the submitter of the records. 

The verdict is now in and the Plaintiff has won.  Judge Richard W. Roberts has found that the government and the intervenor defendant (the submitter) failed to establish that there would be a competitive harm to the submitter in the release of the responsive documents. 

I think the most interesting thing about this case is that the defendants got a chance to put on testimony as to the issue of competitive harm and failed to meet the burden.  The court specifically found that there was absolutely no evidence of segregability presented during the trial. 

  

Fed Loses FOIA Lawsuit on Emergency Bank Loans

The Federal Reserve has lost the FOIA lawsuit brought by Bloomberg seeking information on the banks that received emergency bank loans from the Fed in 2007.  The Fed had sought to withhold the information pursuant to a novel rationale under FOIA exemption 4 to protect the banks.  The Federal District Court for the Southern District of New York did not buy the Fed's position, and ordered the information disclosed.

Update:  The Fed now plans to appeal the decision and has asked the Court that it delay enforcement of the release order.

Failed Bank Depositor Information Withholdable

United States District Judge for the District of Columbia James Robertson has ruled that the Federal Deposti Insurance Corporation ("FDIC") may withhold the identies of depositors of failed banks that the FDIC acts as a receiver.

The plaintiff sought the information to solicit the purchase of receiver certificates, which are certificates for deposits above the federal insured level of $100,000 which portions are paid after secured creditors and administrative expenses of the bank are paid.  Judge Robertson found that information pertaining to business deposits were protected pursuant to FOIA exemption 4 and that individual depositor's identifying information was protected pursuant to FOIA exemption 6. 

Fox Business News Loses FOIA Case

According to Reuters, Fox Business News has lost its FOIA case for details from the Federal Reserve's Board of Governors about the central bank's loans to companies affected by the financial crisis.  Judge Alvin Hellerstein of the United States Court for the Southern District of New York ruled that most of the responsive material was subject to exemption 4 of the FOIA and also that the search for responsive documents was reasonable. 

Fox has indicated that they will likely appeal the rule.  I think the appeal will be interesting as Fox will need to find a way to challenge the government's arguments as to the harm  done by the release of this information.

Update:  Here's the decision thanks to Access Reports.  If you want in depth discussions of FOIA cases and other disclosure activities, you should get a subscription to Access Reports.  Download FBCvFedReserve  

Further update:  Fox has appealed the decision.

NIH FOIA Response Deemed to be Monkey Business by Court

United States District Court Judge for the District of Columbia Colleen Kollar-Kotelly has largely ruled against NIH in a lawsuit for records brought against it by In Defense of Animals for records concerning the Alamogordo Primate Facility and the Chimpanzees maintained therein.

In the detailed 46 page opinion, the Court found against the government on nearly all issues decided.  Initially, Judge Kollar-Kotelly found that the government failed to adequately describe its search for responsive records.  She stated that the defendant's use of the date of the search as the cut off date for the request per government policy was not proper in this situation.  This was because the government failed to address if it was reasonable for there to be an eleven month lag in making the production of records from the time of the search to the time of the release.  The court ordered a new search not earlier than the date of the decision and specifically ordered the government to advise the requester of the date of the search.  The Court also found that the medical records of the chimpanzees were agency records even though they were in possession of the contractor.  The Court said NIH must search these records.

Next, the court found that the agency failed to meet its burden on exemptions 4 and 5 concerning incentive payments for the contractor and NIH Questions in the revised contract proposal.  The government failed to establish that the contractor was the source of the information on the incentive payments and therefore, it wasn't protectible pursuant to exemption 4.  Further, the government failed to meet its burden to show that that this information was protectible under the deliberative process privilege.  Finally, the court found that the government failed to meet its burden under exemption 6.  The government tried to protect various information because the argument that it would violate the personal privacy of animal care workers.  However, the court found the information doesn't reveal information that relates to specific individuals and is therefore not withholdable pursuant to exemption 6.

Finally, the court found that the government must release segregable information on certain documents and that the plaintiff was entitled to a public information fee waiver.

 

Line Item Prices Held Exempt

Recently the District of Columbia Circuit Court of Appeals held that line item prices can be exempt pursuant to FOIA Exemption 4.  The Unfair Business Practices Blog has more analysis of the decision.

Psychological Tests Ruled Confidential Business Information

Judge Ricardo Urbina of the United States District Court for the District of Columbia has ruled that psychological test results developed by two companies are withholdable pursuant to Exemption 4 of the FOIA as confidential business information.  The companies stated in declarations before the Court that the release of this information would damage the usefullness of the tests in the future, and absent any evidence to the contrary by the plaintiff, the Court accepted the companies arguments.