18 FOIA Update 1 (1997)

handle is hein.journals/foiaupd18 and id is 1 raw text is: 

U.S. Department of Justice
Office of Information and Privacy


Vol. XVIII, No. 1
     Winter 1997


FOTA UPDATE


Supreme Court Rules
    In a development that is unprecedented for a Freedom
of Information Act case, the United States Supreme Court
agreed to review--and at the same time also decided to re-
verse--a disclosure order issued in a case involving mailing
lists and the applicability of Exemption 6.
    On February 18, the Supreme Court acted on the Solici-
tor General's petition for review of the Ninth Circuit Court
of Appeals' decision in Oregon Natural Desert Ass'n v.
Bibles, 83 F.3d 1168 (9th Cir. 1996), cert. granted & sum-
marily rev'd, 117 S. Ct. 795 (1997), by simultaneously
granting the Solicitor General's certiorari petition and re-
versing the Ninth Circuit's decision without holding an oral
argument in the case.
    In a per curiam opinion that simply applied its previous
Exemption 6 and Exemption 7(C) holdings in Department of
Defense v. FLRA, 510 U.S. 587 (1994), and Department of
Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749 (1989), the Supreme Court overturned the dis-
trict and appellate court rulings below that had ordered dis-
closure of the names and addresses of individuals on an
agency mailing list.
        The Oregon Natural Desert Ass'n Case
    The case arose when the Oregon Natural Desert Associ-
ation, a nonprofit public interest group interested in desert-
preservation issues, filed a FOIA request with the Depart-
ment of the Interior's Bureau of Land Management for the
mailing list used for distribution of the BLM News, a news-
letter that provides information about BLM's plans and ac-
tivities for such areas as the Oregon desert.
    The Interior Department concluded that Exemption 6 of
the FOIA protected the names and addresses of the private


  Supreme Court Update

individuals on this list, so it withheld that information, while
at the same time segregating and disclosing the names and
addresses of all listed organizations. After the requester
brought suit and prevailed at the district court level, the case
was appealed to the Ninth Circuit Court of Appeals.
    In May 1996, a divided panel of the Ninth Circuit
found a substantial public interest in knowing to whom the
government is directing information, or as [the requester]
characterizes it 'propaganda,' so that those persons may
receive information from other sources that do not share the
BLM's self-interest in presenting government activities in


In Mailing List Case
the most favorable light. 83 F.3d at 1171. It ruled, by a
2-1 panel vote, that this public interest outweighed the
relatively small invasion of personal privacy that is involved
in disclosure of such a mailing list. Id. at 1172.
    The dissenting judge, Circuit Court Judge Ferdinand F.
Fernandez, accused the panel majority of practically ig-
nor[ing] the FOIA teachings of the United States Supreme
Court.  Id.  Under those teachings, he observed, the
weight of the public interest identified by the panel
majority would be nonexistent. Id. at 1173. See also
FOIA Update, Spring 1996, at 2.
              Public Interest Analysis
    In its decision reversing the Ninth Circuit's ruling, the
Supreme Court essentially confirmed what Circuit Court
Judge Fernandez had observed in his dissenting opinion.
The Supreme Court first pointed to the Ninth Circuit's novel
public interest findings, which it pointedly noted were
the sum total of the Court of Appeals' analysis of the pub-
lic interest in disclosure. 117 S. Ct. at 795. It then ob-
served that it was clear that the [Ninth Circuit's] judgment
rested on a perceived public interest in 'providing [persons
on the BLM's mailing list] with additional information, an
incorrect one to consider. Id.
    Use of such a public interest in the Exemption 6 bal-
ancing process, the Supreme Court flatly declared, is in-
consistent with our opinion in Department of Defense v.
FLRA. . which said that 'the only relevant public interest
in the FOIA balancing analysis' is 'the extent to which dis-
closure of the information sought would she[d] light on an
agency's performance of its statutory duties or otherwise
let citizens know what their government is up to.' Id.
(quoting both Department of Defense v. FLRA and Report-
ers Committee). Accordingly, it summarily reversed.
    This is the first Freedom of Information Act case the
Supreme Court has decided in three years, since it decided
the Department of Defense v. FLRA case in 1994. See
FOIA Update, Spring 1994, at 2. At this time, there are no
pending FOIA cases that appear to be strong candidates for
possible Supreme Court consideration in the near future.

                Inside Update
    This issue of FOIA Update contains a compilation of
questions and answers concerning provisions of the Elec-
tronic Freedom of Information Act Amendments of 1996
(pages 3-6).


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