Waiver of Exemptions Even when all substantive requirements of a Freedom of Information Act exemption have been satisfied for application to a particular record, factual circumstances may require that a further inquiry be made before the record can be withheld in response to a FOIA request. The question occasionally arises: Has the agency waived its right to invoke the exemption because of a prior disclosure? The resolution of such an inquiry requires a careful analysis of the circumstances surrounding the prior disclosure, including its extent, recipient, justification, and authorization. At the outset, it should be emphasized that only a disclosure beyond the Executive Branch can threaten to operate as a waiver under the FOIA. The circulation of a document within an agency in no way waives an applicable exemption. See, e.g., Lasker-Goldman Corp. v. GSA, 2 GDS 81,125 at 81,322 (D.D.C. 1981). Nor does the release of information between two federal agencies impair the ability of either agency to withhold it. See, e.g., Chilivis v. SEC, 673 F.2d 1205, 1211-12 (11th Cir. 1982). Furthermore, it appears to be reasonably well established FOIA Counselor that agencies may disclose predecisional documents to advisory committees, even those including members of the public, without waiving their ability to protect the records under Exemption 5, at least where such disclosures further the "free and candid exchange of ideas during the process of decisionmaking." Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 107-08 (D.C. Cir. 1976). Similarly, the disclosure of a specifically requested document to a Member of Congress in his or her official capacity, see Murphy v. Department of the Army, 613 F.2d 1151, 1155 (D.C. Cir. 1979), to a congressional committee, see Aspin v. Department of Defense, 491 F.2d 24, 26 (D.C. Cir. 1973), or to the Government Accounting Office (an arm of Congress), see Shermco v. Secretary of the Air Force, 613 F.2d 1314, 1320-21 (5th Cir. 1980), has been held not to waive Exemption 5 protection for predecisional documents. Nor does a disclosure to Congress waive Exemption I protection for classified documents. See, e.g., Moon v. CIA, 514 F. Supp. 836, 841 (S.D.N.Y. 1981). A contrary rule would thwart the special congressional access provision at 5 U.S.C. §552(c), see Exxon v. FTC, 384 F. Supp. 755, 762 (D.D.C. 1974), although a question does remain as to whether waiver would result from a congressionally authorized release of such documents, see Murphy v. Department of the Army, 613 F.2d at 1158-59.. In a related vein, it appears to be the general rule that when an agency is compelled to disclose a document under limited and controlled conditions, it is not barred from later invoking applicable exemptions under the FOIA. Thus, a release of documents under a protective order in an administrative proceeding does not estop an agency from later withholding them from another party, see Lead Industries Ass'n, Inc. v. OSHA, 610 F.2d 70, 79 n.13 (2d Cir. 1979), nor does a release in criminal discovery under the Jencks Act, 18 U.S.C. §3500, for the "limited purpose" of according a criminal defendant his constitutional right to a fair trial, see Krohn v. Department of Justice, 3 GDS 183.120 at 83,724 (D.D.C. 1979). In general, the courts appear willing to defer to the practicalities of agency operations when faced with a question of waiver. A leading example of this is Couper v. Department of the Navy, 558 F.2d 274 (5th Cir. 1977), in which the Navy disclosed an aircraft accident investigation report to the manufacturer of the aircraft. Even though the recipient was an adverse party to the requester in pending litigation, the Fifth Circuit refused to hold that the Navy had waived its ability to withhold the report under the FOIA, because it regarded the disclosure as "necessary to carry out effectively a [governmental] purpose." 558 F.2d at 278. See also Aviation Consumer Action Project v. Washburn, supra. On the other hand, however, where such a disclosure is made not in furtherance of a legitimate governmental purpose, especially where it is not authorized under agency regulations, courts have been particularly unsympathetic to agencies and have readily found that a waiver has occurred. See, e.g., Cooper v. Department of the Navy, 594 F.2d 484, 487-88 (5th Cir. 1979); State of North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978) ("selective disclosure" found to constitute waiver); Education/Instruccion, Inc. v. HUD, 471 F. Supp. 1074, 1081-82 (D. Mass. 1979). Where an agency mistakenly discloses the contents of a document, it cannot always expect to be able to withhold the document in response to a FOIA request. For example, in Dresser Industrial Value Operations, Inc. v. EEOC, 2 GDS 182,197 at 82,575 (W.D. La. 1982), an agency was found to have waived an applicable FOIA exemption when one of its employees unwittingly read aloud from the document in question to the plaintiff's attorney. Yet in the recent case of Medina-Hincapie v. Department of State, 700 F.2d 737, 741 n.20 (D.C. Cir. 1983), the D.C. Circuit rebuffed an allegation by the plaintiff that agency officials "showed his attorneys copies" of documents at issue, holding that "[a]n unauthorized disclosure of documents does not...constitute a waiver of the applicable FOIA exemption" (emphasis in original). Indeed, should a disclosure by an agency employee be found to be a purposeful, yet unauthorized act—i.e., a "leak"-it has consistently been held that a waiver has not occurred. See Lasker-Goldman Corp. v. GSA, supra; Murphy v. FBI, 490 F. Supp. 1138, 1142 (D.D.C.) (waiver would lead to "exacerbation of the harm created by the leaks"), summary judgment vacated as moot, No. 80-1612 (D.C. Cir. 1980); Safeway Stores, Inc. v. FTC, 428 F. Supp. 346, 347 (D.D.C. 1977); see also Cooper v. Department of the Navy, supra, 594 F.2d at 488 (dictum). In sum, while the courts usually give careful scrutiny to the circumstances surrounding any agency disclosure argued by a plaintiff to be a waiver of FOIA exemptions, they have to date consistently rejected such arguments where the disclosure in question fulfilled a legitimate governmental purpose or was unauthorized. FOIA UPDATE Spring 1983 Office of Information and Privacy OIP Guidance When to Expedite FOIA Requests An issue bound to be confronted sooner or later by all federal agencies is whether to give certain requesters expedited treatment under the Freedom of Information Act. Because the granting of a request for expedition necessarily works to the direct disadvantage of other FOIA requesters, the merits of such requests should be assessed carefully. The FOIA requires that federal agencies determine whether to release requested records within 10 working days, but that period may be extended for an additional 10 working days whenever any of three statutorily defined "unusual circumstances" exist. 5 U.S.C. §552(a)(6)(B). Many agencies are often unable to meet these deadlines due to such factors as the number of requests received, the volume of records sought, de entralized recordkeeping procedures, and limitations on resources-often coupled with the need for a line-by-line review of sensitive documents. The U.S. Court of Appeals for the D.C. Circuit has recognized this problem and has specifically approved the equitable practice of handling. requests on a "first-in, first-out" basis. See Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 614-16 (D.C. Cir. 1976), citing 5 U.S.C. §552(a)(6)(C). At the same time, however, the D.C. Circuit in Open America recognized that some FOIA requests necessarily involve a far greater degree of urgency than others and that when a requester can show "exceptional need or urgency," his request should be processed out of turn. 547 F.2d at 616. The Open America decision did not specify any particular circumstance which might constitute "exceptional need or urgency," so decisions on whether to grant expedition have been left for agency FOIA officers to make on a case-by-case basis. Several years of administrative practice in this area, though, together with at least some specific judicial precedents, have served to develop the following guidelines and considerations. Threat to Life or Safety First, FOIA processing should be expedited whenever it is demonstrated that an individual's life or personal safety would be jeopardized by the failure to process a request immediately. Of the handful of court decisions to have ordered expedited processing, almost all have fallen into this category. See, e.g., Exner v. FBI, 443 F. Supp. 1349, 1353 (S.D. Cal. 1978) (plaintiff obtained expedited treatment after leak of information exposed her to harm by organized crime figures), aff'd, 612 F.2d 1202 (9th Cir. 1980); Cleaver v. Kelley, 427 F. Supp. 80, 81 (D.D.C. 1976) (plaintiff faced multiple criminal charges carrying possible death penalty in state court). At the administrative level, the Department of Justice has expedited a request to facilitate disclosure of medical information about a child's father vital to the child's emergency medical treatment. Another agency agreed to process immediately a request from the parents of a young woman believed to be facing a serious threat to her life in the custody of a cult. To be sure, FOIA requests involving substantiated "life-or-death" matters are rare, but no more Summer 1983 compelling justification can exist for special FOIA treatment. Loss of Substantial Due Process Rights As a general rule, a request also should be expedited if it is shown that substantial due process rights of the requester would be impaired by the failure to process immediately and that the information sought is not otherwise available. Indeed, the practices of many federal agencies reflect such concern for the due process rights of requesters. At the Justice Department's Drug Enforcement Administration, for example, the portion of a drug offender's file that is relevant to an upcoming parole hearing is routinely processed for release out of turn under the FOIA. Similarly, other agencies regularly expedite FOIA requests for information needed in contract award protests so that filing deadlines can be met. It is not sufficient, however, for a requester merely to allege that requested records are “needed" in connection with some judicial or administrative proceeding; rather, the immediate use of the FOIA must be shown to be critical to the preservation of a substantial right. See Rivera v. DEA, 2 GDS 81,365 at 81,953 (D.D.C. 1981) (“A pending civil suit does not generally qualify a FOIA demand for expedited processing."). Indeed, in Mitsubishi Electric Corp. v. Department of Justice, 39 Ad. L. Rep. 2d (P&F) 1133, 1140-42 (D.D.C. 1976), the court pointedly refused to order expedited processing where a requester had not availed itself of existing civil discovery mechanisms for obtaining the records sought. In connection with criminal proceedings, weak “due process" claims have likewise been found inadequate. See, e.g., Gonzalez v. DEA, 2 GDS ¶81,016 at 81,069 (D.D.C. 1980) (use of FOIA as discovery tool to aid standard post-judgment attack on criminal conviction held insufficient); Bubar y. United States Department of Justice, 3 GDS 483,227 (D.D.C. 1981) (need for documents for preparation as witness in criminal trial held insufficient). Other Considerations Beyond these two narrow categories, it is unclear to what extent agencies have the discretion to grant requests for expedition under any other circumstances. Only one judicial decision has ventured beyond these categories-Schacter v. IRS, 3 GDS 4182,515 at 83.302-03 (D.D.C. 1982), where a court somewhat perfunctorily ordered immediate disclosure of a record related to imminent action by Congress. Moreover, agencies should not forget the interests of all requesters in having their requests treated equitably, as well as the public interest in the integrity of FOIA processing. See Mitsubishi Electric Corp. v. Department of Justice, supra, 39 Ad. L. Rep.2d (P&F) at 1142 (Expedited processing, "if granted, will adversely impact upon the conflicting interests of numerous individuals whose requests and appeals were filed [earlier]."). Because a decision to take a FOIA request out of turn necessarily entails further delay for other requesters waiting patiently in line, simple fairness demands that it be made only upon careful scrutiny of truly exceptional circumstances. FOIA UPDATE 3 |