Waiver and Prior Disclosure

Introduction
Generally, records that would otherwise qualify for a FOIA exemption are required to be released if the information is already in the public domain. Under those circumstances, called the “waiver doctrine,” materials “normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.” This doctrine does not appear in the text of the FOIA itself. Rather, a federal appellate court first recognized it under “the logic of FOIA,” which “mandates that where information requested ‘is truly public, then enforcement of an exemption cannot fulfill its purposes.’”

Public Domain Standard
A common test for waiver applied by agencies and courts is the “public domain” standard formulated by the U.S. Court of Appeals for the District of Columbia Circuit. Under this test, an agency may not withhold information that would otherwise be exempt under FOIA “if it was previously ‘disclosed and preserved in a permanent public record.’” The requester has “the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.”

Specific, duplicative information
To meet this standard, a requester must generally provide the agency with evidence that the exact information or record it seeks to withhold under a FOIA exemption is already available to the public.

In one case, a requester met this standard by pointing out that an agency had previously filed a court document containing the names of law enforcement sources that it sought to withhold under Exemption 7(C). Since those names became “publically available,” the court ruled the agency could no longer redact them; however, the agency could still withhold information that had not specifically become public, such as the sources’ contact information.

In another decision, a court held that an agency had waived its right to withhold two maps under Exemption 3 where a requester provided identical maps that were available as public records from sources such as the San Diego County Department of Planning and Land Use, thereby proving they were in the public domain.

Permanent Public Record
In waiver arguments, a factor considered by courts is whether a copy of the requested information is in the “permanent public record”, whether a “hard copy” of the information exists in the public domain.

Courts have not adopted a “uniform, inflexible rule requiring every public-domain claim to be substantiated with a hard copy. . . of the sought-after material.” However, as one court explained, “it will very often be the case that some type of hard copy facsimile will be the only practicable way for a FOIA requester to demonstrate that the specified information he has solicited has indeed circulated into the public domain.”

For example, in a case involving the government’s purported waiver of Exemption 4 protection for confidential business information, the U.S. Court of Appeals for the Ninth Circuit did not require a requester to demonstrate that the information be “preserved in a ‘permanent public record,’” noting that this requirement has been applied mostly in cases “grappl[ing] with requests for sensitive information involving high-level criminal investigations or matters of national security.” The court held that an agency waived its right to withhold Notices of Seizure under Exemption 4 where it sent them to trademark owners without imposing restrictions on the owners’ further use of the information. Even though the notices had not been “preserved in a ‘permanent public record,” the court noted that the recipient could “freely disseminate the Notice to his attorneys, business affiliates, trade organizations, the importer's competitors, or the media in a way that would compromise the purportedly sensitive information.” To apply the “permanent public record” requirement “would still shield commercial information under Exemption 4 even if [the agency] or an aggrieved trademark owner opened up the phonebook and faxed a copy of the seizure notice to every importer in the region.”

One court has found that providing newspaper accounts containing quotes from tapes played during trial would constitute a “permanent public record” of those specific portions of the tapes. Another court has explained that a requester could meet this element by identifying a federal regulation that requires the information to be made publicly available.

In another case, a requester successfully produced a “permanent public record” of tape recordings he sought by providing an official transcript of a trial in which they had been played. The court noted that “audio tapes enter the public domain once played and received into evidence,” but explained that the requester was still required to demonstrate “that there is a permanent public record of theexact portions” he requested. The requester met this burden by producing the transcript, which indicated that those exact tapes had been played and entered into evidence, and the tapes were identified by numbers, as well as the date and times at which they were recorded.

A “permanent public record” that preserves the prior disclosure could also include “an unredacted copy of a redacted document disclosed by” the agency.

In contrast, a court held that the FBI did not waive its right to redact chapters of its investigations and operations guide under [Exemption 7(E) by allowing civil rights and civil liberties groups to view unredacted versions of the chapters for two hours, as the groups were required to return the chapters. While the groups were permitted to take notes about them, the court noted that the groups only had two hours to review the chapters, which were approximately 100 pages. “Even assuming that [the requester] had ‘ample means’ to make a permanent record” of all of these pages in that time frame, the court held, the requester “produced no evidence that the redacted sections of the disputed chapters are, in fact, in the public domain.”

In ''Johnson v. Cent. Intelligence Agency'', the court acknowledged that judges weighing the presence of a “permanent public record” have asked whether or not the information was given to members of the public for them to keep, or merely shown to them at a meeting. However, the court concluded that this question is not dispositive. Here, even though the CIA information was sent to reporters by email, the emails did not constitute a waiver for purposes of FOIA. In order for the public to gain the information in the reporters’ emails, they would have had to break into the reporters’ email servers – a very unlikely proposition.

Public domain test and prior disclosure of materials at trial
Courts have taken varying approaches to the public domain test in determining whether prior disclosure of materials at trial constitutes a waiver. In one case, the U.S. Court of Appeals for the District of Columbia Circuit held that the Department of Justice waived its right to withhold those portions of tapes it played during a trial that the requester could show were in the “public domain” by presenting “a permanent public record of [those] exact portions.”

In contrast, the U.S. Court of Appeals for the Tenth Circuit declined to adopt the public domain test in 2011 in determining whether waiver occurred with respect to video and photographs depicting a prisoner’s murder that the government used as unsealed exhibits at trial. The court explained that “[t]he public domain doctrine is limited and applies only when the applicable exemption can no longer serve its purpose.” Consequently, the court looked to whether “the purpose of Exemption 7(C) in this case remains intact despite the government’s use of the records at a public trial.” While the requester pointed out that members of the news media who were present at the trials had described the contents of the materials in articles, the court noted that the audio and images themselves had only been viewed by individuals present in the courtroom and had not been further disseminated, so the victim’s family had a continuing privacy interest in them. For that reason, the court stated that “[e]ven if this court adopted the public domain doctrine, it would not defeat Exemption 7(C)’s applicability in this matter because the purposes of Exemption 7(C) can still be served.”

Attorney work product
In determining whether the government waived attorney work product privilege under Exemption 5, which applies to materials that would be privileged under civil discovery rules, a court looked to how the privilege would be waived in the context of civil discovery. The court explained that in “certain circumstances. . . disclosure of some attorney work product may result in a waiver of other attorney product,” and the relevant factors would include, for example, whether “the party claiming protection [is] doing so in a way consistent with the purpose of the privilege,” “whether disclosure was intentional or inadvertent,” and “the extent to which the requested documents would reveal litigation strategies or trial preparations.”

Generally
Where “information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency's otherwise valid exemption claim.” To show that the government “officially acknowledged” information — and must therefore release it — a requester must establish that the information being sought
 * 1) “is as specific as the information previously released,”
 * 2) “match[es] the information previously disclosed,” and
 * 3) “ha[s] already been made public through an official and documented disclosure.”

This standard generally arises where a requester seeks classified information under Exemptions 1 and/or 3.

This test is strictly applied, as it was designed to address waiver arguments in the context of requests for information “relating to national security and foreign affairs,” so you must make a strong showing on each point. As one court explained, “[u]nofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of their cooperation with the CIA, but official acknowledgment may force a government to retaliate.”

Due to these concerns, the “official acknowledgement” test often requires the requester to meet a higher burden than simply showing that information is in the public domain. This point was illustrated in an Exemption 7(C) case, where a court held that an agency waived its right to withhold the names of certain sources under that exemption by providing their names in a court document, even though the agency claimed it had done so “inadvertently.” The court explained that “[t]his is not a situation, as may be true in the national security context, where inadvertent disclosure of information — and a concomitant absence of official acknowledgement — renders inapplicable the public domain exception.”

Specificity
To meet the first prong of the test, a requester must show that the agency officially acknowledged “the specific information” being sought, rather than “similar information.”

For example, a court held that the CIA did not “officially acknowledge” information redacted under Exemptions 1 and 3 that described “the capture, detention, and interrogation of” certain “‘high value’ detainees” even though the agency had declassified three sets of documents that the requester “believe[d] contain the same information that the CIA has withheld.” While the declassified documents contained only “general descriptions of” confinement conditions and CIA interrogation techniques, the redacted information consisted of “a comprehensive description of the actual capture, detainment, or interrogation of” specific detainees.

Because of this specificity requirement, when a requester prevails on an official acknowledgement claim, the will receive only those records or pieces of information that are “identical” to those that have been made public.

Match
To meet the second prong of the test, the information that the requester seeks must match the content of the information they claim claim is in the public domain. Consequently, “publication of part of a document does not put the rest into the public domain.”

In one case, a court held that a 1975 congressional committee report that revealed a CIA station’s existence during the 1960s failed to waive Exemption 3 protection for records relating to the existence of the station during the 1950s. The court explained that any waiver of the information for the time frame contained in the report would not extend to information about the station before or after that. In another case, the court ruled that the requester’s official acknowledgement argument failed because the information requested did not specifically match the information disclosed. The court emphasized that the requester “has not shown that the agency has officially acknowledged such information as the length of the report, where the conclusions that have already been released are placed within the report, or what proportion of the report remains classified as compared to the portions that are unclassified or now declassified.”

Official/Documented
The third prong of the test requires that the requester show the information was “made public through an official and documented disclosure.”

The requester must explain how the agency, or its authorized representative, disclosed the information at issue. Courts have required a requester to make a strong showing on this point where classified information is concerned. This is based on the rationale that while “foreign governments can often ignore unofficial disclosure of CIA activities that might be viewed as embarrassing or harmful to their interests. . . . [t]hey cannot, however, so easily cast a blind eye on official disclosures made by the CIA itself.”

In reiterating this point, a court explained that a requester cannot prove official disclosure of classified information by merely pointing to “widespread public discussion of a classified matter,” “statements made by a person not authorized to speak for the Agency,” or “release of information by another agency, or even by Congress.”

In that vein, “the statements of journalists, ‘experts,’ or even unofficial or unidentified sources” — even where such sources are agency personnel — do not constitute official disclosure. Courts have also held that neither leaks of information nor disclosures made by someone other than the particular agency to which one submitted the FOIA request may be an “official and documented disclosure.”

Instead, a requester must demonstrate that the prior disclosure was made by an authorized agency official. Where the CIA neglected to mark a letter containing classified information as classified before sending it to a former employee, and the former employee gave a congressman permission to publish the letter in the Congressional Records, a court held that the agency had still not officially acknowledged the information. While the court found that the letter “did become a matter of public record” by the legislator’s publication, neither that action nor the former employee’s decision to permit its release “effected an official disclosure of classified information by the CIA.”

However, if an agency official provides “off-the-record” information, at least one court has held that this constitutes a waiver. The U.S. District Court for the Southern District of New York ordered the government to release portions of two documents that contained discussions of the State Department’s “off-the-record exchanges with the press,” holding that “[t]he release of information to the press, even if it occurs ‘off-the-record,’ constitutes a prior release of the relevant information.” The court reasoned that “State would not logically have discussed such information with the press unless it was sure that a ‘leak’ would not breach national security.”

The circumstances surrounding the government’s disclosure can play an important role, as in some cases, even an official, “limited disclosure to a small number of individuals might not be enough to render classification inappropriate.”

Interaction with Glomar response
Producing evidence of official acknowledgement of information may be sufficient to overcome an agency’s Glomar response to a FOIA request. A Glomar Response is an agency’s refusal to confirm or deny the existence of records responsive to a request.

As one court has explained, “[a]n agency. . . loses its ability to provide a Glomar response when the existence or nonexistence of the particular records covered by the Glomar response has been officially and publicly disclosed.”

A requester successfully did so in a 2007 case in which a court held that the CIA officially acknowledged the existence of records relating to a former Colombian politician when then-CIA director R. K. Hillenkoetter read portions of official CIA dispatches referencing that politician while testifying before Congress in 1948. Since the existence of the specific information sought by the requester was confirmed during the testimony, the court ruled that the agency had waived its right to invoke the Glomar response with respect to such records.

In contrast, a court held that the CIA did not officially acknowledge the existence of records related to a man named “Sveinn B. Valfells” who was allegedly tied to the Iceland Communist Party, even though the agency stated in court documents that it redacted certain “CIA-originated information” from an FBI report entitled “Sveinn B. Valfells.” Since the agency’s court documents did not “identify specific records or dispatches matching” the request and, due to the CIA’s redactions, the requester could not demonstrate that the redacted information related to Valfells, the court ruled that the CIA properly issued a Glomar response.

Waiver and privacy rights
In the context of the personal privacy exemptions — Exemption 6 and Exemption 7(C) — courts have held that “[t]he government cannot waive individuals’ privacy rights under FOIA” — only the individual can. “An individual can waive his privacy interests under FOIA when he affirmatively places information of a private nature into the public realm.”

For example, when former presidential candidate Ross Perot publicly disclosed that he offered to assist the government in certain law enforcement operations, a court found that he waived privacy interests in the release of his name as it appeared in records related to those matters. Unless other exemptions applied to the records, redacting his name at that point “would not serve any useful purpose in protecting his privacy,” the court explained.

However, the public availability of the information may diminish the individuals’ privacy interest in the information. As one court explained, such prior disclosure “may impact the. . . expectation of privacy in those materials,” although it would “not negate it.”