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Exemptions must be construed narrowly. The burden is on the Government to prove that the material falls under any of the exemptions in the Act. The government is in a better position to prove that the material falls under an exemption than the plaintiff is in proving that it does not because plaintiff has never seen the material. Where there is a dispute as to the nature of the information, the Court points out difficulties in carrying out its own inspection to resolve the dispute where the material is voluminous. There is no incentive under the F.O.I.A, for an agency to voluntarily disclose information. Since the burden of determining a government claim of exemption falls on the courts, there is an impetus for agencies to automatically claim the broadest possible grounds for exemption for the greatest amount of information so that the efficiency of court review will be decreased. To remedy the situation courts should :
(1) No longer accept conclusory allegations of exemption but rather require detailed analysis of the material.
(2) Require specificity as to which portions of large documents are disclosable and which are exempt. Agencies could develop a system of indexing that would correlate with the government's statement justifying refusal thus reducing the court's workload.
(3) Where review of material is too burdensome, trial judge should designate a special master to inspect and evaluate the material and report back to the court.
Verrazzano Trading Corp. v. United States
349 F. Supp. 1401 (Cust. Ct. 1972) Agency:
Bureau of Customs. Record(s) involved:
Copy of work notes, written data and computations of the Bureau's labora
tory report relative to the classification of imported fabrics. Section of the Act:
Sec. 552(b) (5)-Exemption for inter- and intra-agency memoranda. Judgment:
For petitioner. Methods of testing used by government chemists in analyzing samples of imported merchandise and their accuracy provided one of the major issues in this action. Consequently, plaintiff, during the course of litigation, motioned for an order to compel the defendant to produce for inspection and copying certain work notes and computations pertaining to a laboratory report of the Bureau of Customs. Defendant opposes the motion, claiming that the materials are "privileged from disclosure" by sec. 552(b) (5) of the Freedom of Information Act.
HELD: Motion by plaintiff requesting disclosure granted.
"[T]he work notes, data, and computations requested here constitute internal drafts prepared by agency personnel for their own use and thus are in the nature of the intra-agency memoranda. However, in the absence of proof to the contrary by the government—which under the Information Act has the burden of sustaining its action—the requested materials . . , must be considered as purely objective, factual and scientific in nature and [unrelated to] policy or decision-making recommendations" and thus outside the scope of the claimed exemption, 5 U.S.C. sec. 552(b) (5).
"[T]he Freedom of Information Act was enacted to provide the public with the right to obtain information from administrative agencies in the executive branch of the government; it was not enacted to provide discovery procedures for obtaining information during litigation. Put otherwise, the fact that sec. 552(b) of the Information Act provides specified exemptions from the Act's public information requirements does not in and of itself create a judiciary discovery privilege with respect to such exemptions."
Wecksler v. Shultz
324 F. Supp. 1084 (D.D.C. 1971) Agency:
Department of Labor. Record(s) involved:
Records designated as forms "CA 15" and "CA 16", and Deer Park report. Sections of the Act:
Sec. 552(b) (4)–Exemption for information given in confidence.
Sec. 552(b) (7)–Exemption for investigatory files.
For plaintiffs relative to “CA 15" and "CA 16" records. For defendant
(Agency) relative to Deer Park report. Action by plaintiff for the disclosure of documents (CA 15's and CA 16's) which were prepared by inspectors employed by defendants in connection with their inspection of plants pursuant to the Walsh-Healy Public Contracts Act and those concerning an explosion and fire which occurred at a refinery.
HELD: For plaintiffs.
“Defendants have failed to meet the burden of showing that the records [CA 15's and CA 16's) sought are exempt under any of the exemptions in 5 U.S.C. sec. 552(b)."
"Nothing in the records sought is a trade secret or commercial or financial information within the meaning of 5 U.S.C. sec. 552(b) (4), or is an internal memorandum within the meaning of 5 U.S.C. sec. 552(b) (5) or is an investigatory file compiled for law enforcement purposes within the meaning of 5 U.S.C. sec. 552(b) (7)."
The intervenor's request for the investigatory report relative to the explosion and fire at the Deer Park, Texas refinery is exempt from disclosure by 5 U.S.C. sec. 552(b) (4).
Weisburg v. Department of Justice
Civ. A. No. 71-1026 (D.C. Cir. 1973) Agency:
Department of Justice. Record (8) involved:
Spectographic Analysis conducted on bullet evidence involved in assassina
tion of President Kennedy. Sections of the Act:
Sec. 552 (b) (7)–Exemption for investigatory files compiled for law en
forcement purposes. Judgment:
In favor of Defendants. Plaintiff filed action in District Court to compel disclosure of spectographic analysis of bullet evidence involved in assassination of President Kennedy. District Court granted Government's motion to dismiss. Appeals Court remanded. In rehearing en banc:
HELD: Court vacated divided opinions of Appeals Court, affirmed District Court's ruling.
Once it has been established, as it has been here, that the material at issue is 1) investigatory in nature, and 2) was compiled for law enforcement purposes, such material is exempt under $ 552 (b) (7). Even where the investigation has already been concluded, if material is disclosed, the agency's investigatory techniques and procedures would be revealed so that future law enforcement efforts by the agency could be hindered.
Wellford v. Hardin
444 F.2d 21 (4 Cir. 1971) Agency:
Department of Agriculture. Record(s) involved:
Letters of warning sent to meat and poultry processors and information with
respective to administrative detention of meat and poultry products. Sections of the Act:
Sec. 552 (b) (7)–Exemption for investigatory files. Judgment:
In favor of plaintiff. Plaintiff filed action in District Court to compel disclosure of 1) Letters of warning sent to meat and poultry processors, 2) information with respect to the administrative detention of meat and poultry products, 3) name of each processor whose product has been detained since Jan. 1, 1965. Government claimed exemption under sec. 552 (b)(7) for investigatory files compiled for law enforcement purposes. District Court held in favor of plaintiff. Defendant appealed.
Court noted legislative history of this exemption reveals that its purpose was to prevent premature discovery by a defendant in an enforcement proceding. Material at issue was already in the hands of the parties against whom the law was being enforced and the party requesting the information was not a party facing an enforcement proceeding to which the material was germaine. A company subject to a warning letter or detention action suffers loss of privacy if that fact is revealed but that is out-balanced by the public's right under the F.0.1.A, to have access to information maintained by an execution agency.
Exemption should not be broadened to include administrative action, taken to enforce the law. It should be limited only to investigatory files compiled for law enforcement purposes.
Williams v. Internal Revenue Service
345 F. Supp. 591 (D. Del. 1972) Agency:
Internal Revenue Service. Record(s) involved:
File containing the schedules, work papers and background data utilized by
the IRS agent in his effort “to determine the plaintiff's taxable income by
the net worth method.” Scctions of the Act:
Sec. 552(b) (5)—Exemption for inter- and intra-agency memoranda.
Sec. 552(b)(7)—Exemption for investigatory files. Judgment:
For defendant (Agency). Plaintiffs filed a petition with the Tax Court of the United States seeking a redetermination of certain deficiencies proposed by the Commissioner of Internal Revenue with respect to plaintiff's federal income taxes for the years 1957 through 1960 inclusive. In view thereof, plaintiff requested pursuant to the provisions of the Freedom of Information Act (5 U.S.C. sec. 552 (a) (3)) IRS files which the agency denied on the grounds that the records were exempt from disclosure under the provisions of 5 U.S.C. sec. 552(b) (5) and (7). The affidavit of the internal revenue agent states that the files contain the schedules, work papers and background data prepared or utilized by him in his effort “to determine taxable income ...".
Plaintiffs contend that the investigatory files exemption does not protect files compiled for law enforcement purposes if they would be available under the Federal Rules of Civil Procedure.
HELD: Defendant's motion for summary judgment granted.
“The discovery provisions of the Federal Rules of Civil Procedure give disclosure rights only to parties to litigation rending in the United States Dis
trict Court. At the time of the demand here, plaintiffs were not in this position and had no rights under the Federal Rules. Rather, they were parties to a pro ceeding before the Tax Court.”
... [T]he rights of specific persons under government investigation ... seeking . . . files dealing with them were for good reasons not meant to be affected by [the] general public disclosure statute. The law with respect to access to them is to be determined by the law as it exists without reference to the Freedom of Information Act."
Wolfe v. Froehlke
358 F. Supp. 1318 (D.D.C. 1973) Agency:
Defense Department. Record (8) invowed:
Department of Defense file entitled "Forcible Repatriation of Displaced
Soviet Citizens—Operation Keelhaul". Sections of the Act:
Sec. 552 (b)(1)-Exemption for material specifically required by Executive
order to be kept secret in the interest of the national defense or foreign
In favor of defendants. Plaintiffs brought suit to compel disclosure of Department of Defense file entitled “Forcible Repatriation of Displaced Soviet Citizens—Operation Keelhaul" which was created in 1946 by Allied Force Headquarters. The file had been declassified by the U.S. Government but without the concurrence of the British Government. The British Government refused to concur because they had not completed declassification of World War II documents pre-dating the “Keelhaul" file and would not review that file until they completed reviewing files before "Keelhaul". The issue before the Court is whether continued withholding of the file is justified solely in the interests of foreign policy in light of the lack of concurrence by the British Government.
HELD: Defendant's motion for summary judgment granted.
The defendant established that the President had classified the documents under executive order based on a determination that disclosure without the concurrence of the British Government would be prejudicial to the foreign relations of the United States. The Court ruled that the Government's showing was sufficient to establish exemption under sec. 552 (b) (1). It is not for the Court to decide whether disclosure would or would not be prejudicial to the foreign relations of the United States.
Wu v. National Endowment for the Humanities
460 F. 2d 1030 (5th Cir. 1972) Agency:
National Endowment for Humanities. Record (8) involved:
Work product records of the Endowment's experts who evaluated the China
history for which funds from the Endowment were sought. Section of the Act:
Sec. 552(b) (5)-Exemption for inter- and intra-agency memoranda. Judgment:
For defendant. Appellant, a college professor, applied to the Endowment, a federal agency, for a $70,000 grant to produce a book on Chinese history. The Endowment, in its usual course, referred the application and accompanying proposal to outside experts who gave the Endowment their opinions. The experts recommended that the application be denied. Eventually, the Endowment did deny Professor Wu'
application, whereupon Professor Wu brought suit under the Freedom of Information Act to compel disclosure of the experts' refutations.
The District Court granted summary judgment for the Endowment, concluding that the records sought came within the purview of exemption (b) (5). (5 U.S.C. sec. 552(b) (5).
"To allow disclosure of these documents wouļd interfere with two important policy considerations on which sec. 552(b) (5) is based : encouraging full and candid intra-agency discussion, and shielding from disclosure the mental process of executive and administrative officers. . .
The memoranda at issue in the instant case are "internal working papers in which opinions are expressed” and are involved in the Endowment's "deliberative process.” They are, therefore protected from disclosure by exemption (5).
A LIST OF SUITS FILED UNDER 5 U.S.C. 552 THAT ARE BEING HANDLED BY THE
CIVIL DIVISION AS OF JANUARY 1, 1974" 1. Gilbert A. Cuneo and Herbert L. Fenster v. Robert S. McNamara and Willam B. Petty, Civil Action No. 1826-67, D.D.C. (Defense Contract Audit Manual) (Status: Defendants' Motion for Summary Judgment granted, January 1972). (Remanded by Court of Appeals, September 1973) (Petition for rehearing denied by Court of Appeals, October, 1973).
2. Grumman Aircraft Engineering Corp. v. The Renegotiation Board, Civil Action No. 1953–68, D.D.C. (Complaint alleges that the defendant Renegotiation Board refused to make available certain records for inspection and copying by plaintff involving the adjudication of renegotiation cases for numerous listed companies) (Status : Government's motion to dismiss, or in the alternative for summary judgment granted November 4, 1968; March 1970, reversed and remanded by Court of Appeals; Opinion on remand filed April 26, 1971: July 3, 1973, Court of Appeals affirmed decision on remand) (Petition for rehearing denied by Court of Appeals).
3. Edward Irons v. Schuyler, D.D.C., Civil Action No. 75–70 (Plaintiff seeks "manuscript decisions" from Patent Office) (Status Order dated October 23, 1970, required Patent Office to maintain index of unpublished manuscript decisions and otherwise granted defendant's Motion to Dismiss) (Affirmed and remanded by Court of Appeals June 15, 1972) (Plaintiff's petition for a writ of certiorari denied by Supreme Court, December 18, 1972). Plaintiff has subsequently filed a motion to amend complaint in District Court).
4. Laurent Alpert, et al. v. Farm Credit Administration, D.D.C., Civil No. 446–70 (Plaintiffs seek certain Farm Credit Administration loan records) (Status : Defendant's Motion for summary judgment granted June 1972). (Plaintiffs have appealed.
5. Bannercraft Corp. v. Renegotiation Board, D.D.C., Civil Action No. 1340–70 (Suit to obtain various Renegotiation Board records) (Administrative proceeding enjoined until documents sought filed for in camera inspection, May 1970. (Affirmed by Court of Appeals, July 1972) (Petition for a write of certiorari granted).
6. National Cable Television Assn., Inc. v. FCC, D.D.C., Civil Action No. 133170 (Suit to obtain records allegedly pertinent to pending rulemaking proceeding and to enjoin the proceeding (Status: Court of Appeals reversed District Court decision granting summary judgment for defendant, and remanded for further proceedings.
7. Carolyn M. Morgan v. Food and Drug Administration, et al., D.D.C., Civil Action No. 1928–70 (Plaintiff seeks records of clinical and toxicological tests of various birth control pills) (Status: Defendants Motion for Summary judgment granted July 6, 1971). (Plaintiff has appealed).
8. David B. Lilly Corp., et al. v. Renegotiation Board, D.D.C., Civil Action No. 2055–70. (Suit to obtain records allegedly pertinent to pending administrative proceeding and to restrain the proceeding) (Status : Preliminary injunction restraining administrative proceedings entered August 1970) (Affirmed by Court of Appeals, July 1972). (Petition for a writ of certiorari granted).
9. Harold Weisburg v. Department of Justice, D.D.C., Civil Action No. 2301-70. (Suit to obtain spectrographic analysis constituting part of FBI investigation file
1 Prepared by United States Department of Justice.