Fed. appeals court rules on FOIA exemptions, search scope

A federal appellate court ruled against a government agency that released only documents officials decided were relevant in a federal Freedom of Information Act request that sought all documents regarding a trade agreement.

In an unpublished memorandum opinion, the U.S. Court of Appeals in San Francisco (9th Cir.) reversed a lower court's decision on Friday that the Office of U.S. Trade Representative could withhold documents requested by the Center for Biological Diversity.

"The district court applied the wrong legal standards and neglected to engage in the correct legal analyses in its summary judgment orders," the ruling stated.

The Center and Conservation Northwest filed a FOIA request for all records related to the Softwood Lumber Agreement, which is a trade agreement between the United States and Canada that, among other things, involved the taxation of lumber imported into the U.S. from Canada.

Upon receiving the FOIA request, Trade Representative officials provided documents from June 2006, which is a month before the Softwood Lumber Agreement was finalized. But the environmental groups argued that they should have received documents from April 2006, when work on the framework of the agreement began.

Trade Representative attorneys said the agency only conducted a search of its records beginning in June 2006 because that was when "detailed discussion of implementation issues” started. In rejecting this argument, the federal court emphasized that the organizations had requested “all records related to the implementation of the program,” and since the facts showed relevant records were generated in April or May, the agency had not completed an adequate search.

Additionally, the court noted that the Trade Representative court filings failed to detail which files it had searched, the search terms it had used, and reasons why further searches would be impractical or unlikely to generate additional records.

Without this information, the appellate court said that reviewing courts would be unable to determine whether agency officials had adequately fulfilled the FOIA request. The court sent the case back to the lower court and ordered the government agency to submit evidence providing this information in order to enable the lower court to adequately review the agency’s action.

The court turned next to the applicability of FOIA exemption 5, which allows agencies to withhold “inter-agency or intra-agency memorandums or letters” which are protected by the attorney-client, deliberative process, and attorney work product privileges.

The court found that the district court had, in addressing the Trade Representative's argument under exemption 5, failed to ask a threshold question: "whether the records are ‘inter-agency or intra-agency.'” That is, the lower court should have first examined “the nature of the relationships between the government agency and the third party or parties” to evaluate the applicability of exemption 5. The court noted that many of the records contained communications between agency officials and private third parties, but the private parties could have been acting in a government capacity, so it was first necessary to determine whether these communications fell into the category of inter- or intra-agency documents before further analyzing the exemption's applicability.

The district court had failed to address this initial question, finding that the records were exempt from disclosure since the communications furthered government deliberations and the parties were “consulted in confidence.” The appellate court noted that while these elements would be relevant to a consideration of whether the deliberative process or attorney-client privilege applied to shield the documents from disclosure, “neither [were] relevant to the threshold question of whether Exemption 5 applies at all.”

The court went on to also hold that the lower court had erred in addressing the question of whether the records at issue were protected from disclosure by FOIA exemption 6, which covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Trade Representative attorneys invoked this exemption in response to the organizations’ request for the names of candidates for a board of directors of a new foundation, which would receive “meritorious initiatives” funds.

The court instructed the lower court to first consider whether the information sought “is contained in a personnel, medical, or ‘similar file,” and “whether the release of the information would constitute a clearly unwarranted invasion of the person’s privacy.” Second, the court stated the lower court should “balance the individual’s privacy interest against the extent to which FOIA’s central purpose of opening agency action to public scrutiny would be served by disclosure.”

The ruling however was an unpublished opinion, thereby limiting its precedential value.