Hopkinson v. Shillinger, No. 86-2571 (10th Cir. Jan. 23, 1989).
The Tenth Circuit Court of Appeals has ruled that the FBI
properly withheld its entire file on a convicted multiple murderer,
consisting of requests by a state law enforcement agency
for FBI laboratory and fingerprint examinations of physical
evidence together with the results of those examinations,
pursuant to Exemption 7(D). It held that the lack of a federal
investigation into the murders posed no obstacle to meeting
Exemption 7's "law enforcement purposes" threshold requirement,
given the FBI's authority to render technical and scientific
assistance to all law enforcement agencies and the need for
cooperation and information-sharing between those law enforcement
agencies and the FBI. Noting that the 1986 FOIA amendments explicitly
established that state and local law enforcement
authorities can qualify as "confidential sources" under Exemption
7(D), the Tenth Circuit extended its recognition of the
"inherently implicit" confidential nature of FBI interviews in
criminal investigations to situations in which such agencies seek
the FBI's technical assistance.
Forman v. Chapoton, Civil No. 88-1151-R (W.D. Okla. Dec. 12, 1988).
Finding that books of materials distributed to individual
Treasury Department officials who attended a privately sponsored
tax seminar were not "used by the agency for agency business,"
District Court Judge David L. Russell ruled that those materials
are "private or personal records" not subject to the FOIA. Each
book contained administrative information about the seminar, together
with scholarly articles dealing with the law of federal
taxation. They never were integrated into the agency's files
because the seminar attendees maintained them in their homes or
in their offices with other personal reference materials and were
free to retain or dispose of them at their own discretion. Even
though some attendees may have "rel[ied] upon the documents in
support of agency business," Judge Russell held that such use for
"personal reference" purposes does not "by itself convert these
documents into agency records." The requester has appealed.
Washington Post Co. v. Department of Justice, 863 F.2d 96 (D.C. Cir. 1988).
In an unusual, piecemeal decision, the D.C. Circuit Court of
Appeals has reversed, remanded and reserved judgment on various
aspects of a FOIA case involving a self-evaluative report
prepared by Eli Lilly & Co. regarding its drug Oraflex. The D.C.
Circuit flatly rejected the position that the report's disclosure
was prohibited by Rule 6(e) of the Federal Rules of Criminal
Procedure, declaring that under the standards of its decision in
Senate of Puerto Rico v. Department of Justice, 823 F.2d 574,
582-84 (D.C. Cir. 1987), the report was "extrinsic" to the grand
jury process. Remanding for further factual findings on the
case's rare Exemption 7(B) claim, it established a standard for
such withholding: "(1) that a trial or adjudication is pending
or truly imminent; and (2) that it is more probable than not that
disclosure of the material sought would seriously interfere with
the fairness of those proceedings." Pending further adjudication
of the Exemption 7(B) issue, the D.C. Circuit chose to reserve
judgment on the two independent Exemption 4 grounds also involved
-- that the report constitutes confidential commercial information
and that it is protected by the critical self-evaluative
privilege. It also rebuffed Eli Lilly's Exemption 7(C) claim.
Washington Post Co. v. HHS, No. 88-5094 (D.C. Cir. Jan. 6, 1989).
In another chapter of a nearly decade-long suit concerning financial disclosure forms filled out by consultants to the National Cancer Institute, the D.C. Circuit Court of Appeals for the third time remanded the case for further district court proceedings. The district court had most recently ruled that disclosure would impair HHS's ability to obtain "full and accurate information" from future consultants, who might narrowly construe the form's reporting requirements if they learned it would be publicly disclosed. Although HHS had submitted detailed affidavits supporting this conclusion, the D.C. Circuit dwelled on the fact that The Washington Post had "vigorously contested" the agency's position with its own affidavits, thus creating a "factual dispute" which, it said, precluded summary judgment. Even though a finding of impairment under Exemption 4 necessarily involves a "predictive" harm that is inherently speculative, the D.C. Circuit declared that the adjudication of even that type of issue requires some form of evidentiary proceeding. It also seemingly engrafted an entirely new requirement onto Exemption 4, by directing the district court to conduct a "rough balancing of the extent of impairment and the importance of the information against the public interest in disclosure."
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