FOIA Update: Significant New Decisions

Pollack v. Department of Justice, No. 93-2025 (4th Cir. Mar. 10, 1995).

In a decision clarifying the responsibilities of both agencies and requesters, the Court of Appeals for the Fourth Circuit held that while agency disclosures made after litigation commences do not revive the requester's obligation to administratively appeal, the agency's failure to respond before the filing of the FOIA suit in no way negates the requester's obligation to pay fees. The requester filed suit after waiting nearly a year without a response to his request for records concerning his criminal convictions for conspiracies involving mail fraud, wire fraud and embezzlement. Following the processing of responsive material, the district court dismissed the action based on the requester's failure to administratively appeal the several releases made after the litigation had commenced, and due to his refusal to pay duplication fees. Rejecting the first ground for dismissal, the Fourth Circuit held that so long as a requester had constructively exhausted his administrative remedies by waiting ten -- or in some cases twenty -- working days, the court was not thereafter "deprived of jurisdiction" because he failed to administratively appeal releases ultimately made during litigation. On the second issue, the Fourth Circuit affirmed the dismissal of the action for nonpayment of fees, squarely rejecting the requester's novel and unfounded argument that the lack of a timely agency response to his request relieved him of his responsibility to pay duplication fees.

Chemical Waste Management, Inc. v. O'Leary, No. 94-2230 (D.D.C. Feb. 28, 1995).

In a key decision interpreting Exemption 4, United States District Court Judge Norma Holloway Johnson held that unit prices in a government contract are "required" rather than "voluntary" submissions under the D.C. Circuit's Critical Mass decision and therefore must be analyzed under National Parks' competitive harm test. The ruling came in a "reverse" FOIA suit brought by the successful bidder for a hazardous waste management and disposal services contract for the Department of Energy's Savannah River site. Seeking to be judged under Critical Mass's "less stringent test," the submitter urged that "it should be considered a voluntary provider of information to DOE because . . . [it] voluntarily bid" on the contract. Flatly rejecting that argument, Judge Johnson upheld DOE's determination that the contractor "submitted the unit price information pursuant to a requirement in the RFP" and noted that without the submission, the bid "would not have conformed to the terms of the RFP." Thus, the submitter "had no choice but to submit the unit price information once it chose to submit its proposal." With regard to DOE's rejection of the contractor's alternative argument that disclosure would cause it substantial competitive harm, she ruled that the agency had "misapplied legal precedents" and "failed to respond" to the contractor's "actual complaints of harm." Nevertheless, she remanded the case back to the agency for further proceedings on the question of competitive harm, specifically declining to order an "outright reversal" on that issue.

Strout v. United States Parole Comm'n, 40 F.3d 136 (6th Cir. 1994).

In a case of first impression, the Court of Appeals for the Sixth Circuit held that an agency's regulation requiring payment of fees before release of already-processed records did not violate the FOIA's prohibition against requiring advance payment. The requester, a federal prisoner serving thirty years for murder in a national park, sought access to his Parole Commission records and, after they were processed, was advised that in "accordance with departmental regulations, you are required to pay all applicable fees before the requested records are released to you." The requester contended that the agency's demand for payment before release of records was unlawful under the statute and that the agency's distinction between fees for already-processed records and an advance payment -- i.e., a payment made before work is commenced -- was a "distinction without a difference." In interpreting the admonition that "[n]o agency may require advance payment of any fee," 5 U.S.C. § 552(a)(4)(A)(v), the Sixth Circuit disagreed, finding that the regulation "does not conflict with the statutory provision because the agency has already incurred the expense of search and duplication before requesting payment."

Dow Jones & Co. v. United States Dep't of Justice, No. 94-0527 (S.D.N.Y. Jan. 5, 1995).

In a difficult Exemption 7(C) case concerning survivors' privacy, United States District Court Judge Sonia Sotomayor prohibited the Department of Justice "from withholding circulation" of copies of a handwritten, torn-up note retrieved from Deputy White House Counsel Vincent Foster's briefcase after his suicide. The agency made available a typed transcript of the note, and allowed anyone to view a copy of the original note in Washington, D.C., but argued that publicly circulating the note would unjustifiably invade the Foster family's privacy. Judge Sotomayor recognized that the family would suffer "pain . . . as a result of any renewed scrutiny," but held that their interest was outweighed by the public's "substantial" interest in "viewing a photocopy of the actual document," insofar as it "touched on several events of public interest, including the controversy involving the White House travel office, and implicated government agencies and employees in misconduct." She concluded that the "missing pieces of the [n]ote, and therefore the physical look of the [n]ote, are an integral part of the public's interest." Mrs. Foster has intervened for purposes of appeal.

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