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The Court had long held that, under the Due Process Clause, it would set aside convictions that are supported by no evidence at all. Thus, in Jackson v. Virginia , the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Because due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the Court held in Mullaney v. The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision, however, called into question the practice in many states under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant and weighty task given the large numbers of affirmative defenses.
The Court, however, summarily rejected the argument that Mullaney means that the prosecution must negate an insanity defense, and, later, in Patterson v. According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson , by contrast, the statute obligated the state to prove each element of the offense the death, the intent to kill, and the causation beyond a reasonable doubt, while allowing the defendant to prove an affirmative defense by preponderance of the evidence that would reduce the degree of the offense.
Despite the requirement that states prove each element of a criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be limited in the evidence that he may present to challenge this presumption. In Clark v. Arizona , the Court considered a rule adopted by the Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of mens rea , ruling that the use of such evidence could be limited to an insanity defense.
The Court has taken a formalistic approach to this issue, allowing states to designate essentially which facts fall under which of these two categories. New Jersey. In Apprendi the Court held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime. In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received such in interstate commerce.
In Leary v. In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary. Wilbur line of cases clearly shows the unsettled nature of the issues they concern.
The Problem of the Incompetent or Insane Defendant. Thus, a statutory presumption that a criminal defendant is competent to stand trial or a requirement that the defendant bear the burden of proving incompetence by a preponderance of the evidence does not violate due process. When a state determines that a person charged with a criminal offense is incompetent to stand trial, he cannot be committed indefinitely for that reason. If it is determined that he will not, then the state must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen. Where a defendant is found competent to stand trial, a state appears to have significant discretion in how it takes account of mental illness or defect at the time of the offense in determining criminal responsibility.
Commitment to a mental hospital of a criminal defendant acquitted by reason of insanity does not offend due process, and the period of confinement may extend beyond the period for which the person could have been sentenced if convicted. The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing a person who is insane, and that properly raised issues of pre-execution sanity must be determined in a proceeding that satisfies the requirements of due process. In Atkins v. Issues of substantive due process may arise if the government seeks to compel the medication of a person found to be incompetent to stand trial.
In Washington v. In Sell v. First, however, the government must engage in a fact-specific inquiry as to whether this interest is important in a particular case. Third, the court must find that less intrusive treatments are unlikely to achieve substantially the same results. Guilty Pleas. Those circumstances will vary, but a constant factor is that, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
The Court viewed as highly undesirable the restriction of judicial discretion in sentencing by requiring adherence to rules of evidence which would exclude highly relevant and informative material. Further, disclosure of such information to the defense could well dry up sources who feared retribution or embarrassment. Thus, hearsay and rumors can be considered in sentencing. In Gardner v. Florida , however, the Court limited the application of Williams to capital cases. Grayson , a noncapital case, the Court relied heavily on Williams in holding that a sentencing judge may properly consider his belief that the defendant was untruthful in his trial testimony in deciding to impose a more severe sentence than he would otherwise have imposed.
There are various sentencing proceedings, however, that so implicate substantial rights that additional procedural protections are required. Patterson , the Court considered a defendant who had been convicted of taking indecent liberties, which carried a maximum sentence of ten years, but was sentenced under a sex offenders statute to an indefinite term of one day to life. The sex offenders law, the Court observed, did not make the commission of the particular offense the basis for sentencing.
Instead, by triggering a new hearing to determine whether the convicted person was a public threat, a habitual offender, or mentally ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay , the Court held that, when sentencing is deferred subject to probation and the terms of probation are allegedly violated so that the convicted defendant is returned for sentencing, he must then be represented by counsel, inasmuch as it is a point in the process where substantial rights of the defendant may be affected.
Due process considerations can also come into play in sentencing if the state attempts to withhold relevant information from the jury. For instance, in Simmons v. South Carolina , the Court held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of the defendant to society, the jury must then be informed if the only alternative to a death sentence is a life sentence without possibility of parole. Angelone , the Court refused to apply the reasoning of Simmons because the defendant was not technically parole ineligible at time of sentencing. A defendant should not be penalized for exercising a right to appeal. Thus, it is a denial of due process for a judge to sentence a convicted defendant on retrial to a longer sentence than he received after the first trial if the object of the sentence is to punish the defendant for having successfully appealed his first conviction or to discourage similar appeals by others.
Because the possibility of vindictiveness in resentencing is de minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing that the jury knew of the prior vacated sentence. Here the Court reasoned that a trial may well afford the court insights into the nature of the crime and the character of the defendant that were not available following the initial guilty plea.
Corrective Process: Appeals and Other Remedies. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A state is not free, however, to have no corrective process in which defendants may pursue remedies for federal constitutional violations. In Frank v. The mode by which federal constitutional rights are to be vindicated after conviction is for the government concerned to determine.
States are free to devise their own systems of review in criminal cases. A State may decide whether to have direct appeals in such cases, and if so under what circumstances. In respecting the duty laid upon them. States have a wide choice of remedies. A State may provide that the protection of rights granted by the Federal Constitution be sought through the writ of habeas corpus or coram nobis. It may use each of these ancient writs in its common law scope, or it may put them to new uses; or it may afford remedy by a simple motion brought either in the court of original conviction or at the place of detention.
So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated. If he is unsuccessful, or if a state does not provide an adequate mode of redress, then the defendant may petition a federal court for relief through a writ of habeas corpus. When appellate or other corrective process is made available, because it is no less a part of the process of law under which a defendant is held in custody, it becomes subject to scrutiny for any alleged unconstitutional deprivation of life or liberty. Dempsey , while insisting that it was not departing from precedent, the Court directed a federal district court in which petitioners had sought a writ of habeas corpus to make an independent investigation of the facts alleged by the petitioners—mob domination of their trial—notwithstanding that the state appellate court had ruled against the legal sufficiency of these same allegations.
Mississippi and now taken for granted. Even the states that had not enacted statutes dealing specifically with access to DNA evidence must, under the Due Process Clause, provide adequate postconviction relief procedures. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place?
How much, and when? Rights of Prisoners. He is for the time being the slave of the state. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances. Prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints, and to bring actions in federal courts to recover for damages wrongfully done them by prison administrators.
Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline. In Turner v. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security, broadly defined. Availability of other avenues for exercise of the inmate right suggests reasonableness. McDonnell , the Court promulgated due process standards to govern the imposition of discipline upon prisoners. Ordinarily, an inmate has no right to representation by retained or appointed counsel.
Finally, only a partial right to an impartial tribunal was recognized, the Court ruling that limitations imposed on the discretion of a committee of prison officials sufficed for this purpose. Determination whether due process requires a hearing before a prisoner is transferred from one institution to another requires a close analysis of the applicable statutes and regulations as well as a consideration of the particular harm suffered by the transferee. On the one hand, the Court found that no hearing need be held prior to the transfer from one prison to another prison in which the conditions were substantially less favorable.
Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, defeasible upon the commission of acts for which transfer is a punishment, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all; consequently, there was nothing to hold a hearing about. Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.
First, the statute gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. The kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will was at issue in Washington v. Probation and Parole. Because both of these dispositions are statutory privileges granted by the governmental authority, it was long assumed that the administrators of the systems did not have to accord procedural due process either in the granting stage or in the revocation stage.
Now, both granting and revocation are subject to due process analysis, although the results tend to be disparate. Thus, in Mempa v. Rhay , the trial judge had deferred sentencing and placed the convicted defendant on probation; when facts subsequently developed that indicated a violation of the conditions of probation, he was summoned and summarily sentenced to prison. The Court held that he was entitled to counsel at the deferred sentencing hearing. In Morrissey v. Brewer a unanimous Court held that parole revocations must be accompanied by the usual due process hearing and notice requirements. Its termination calls for some orderly process, however informal. Minimal due process, the Court held, requires that at both stages of the revocation process—the arrest of the parolee and the formal revocation—the parolee is entitled to certain rights.
Promptly following arrest of the parolee, there should be an informal hearing to determine whether reasonable grounds exist for revocation of parole; this preliminary hearing should be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available, and should be conducted by someone not directly involved in the case, though he need not be a judicial officer. The parolee should be given adequate notice that the hearing will take place and what violations are alleged, he should be able to appear and speak in his own behalf and produce other evidence, and he should be allowed to examine those who have given adverse evidence against him unless it is determined that the identity of such informant should not be revealed.
Also, the hearing officer should prepare a digest of the hearing and base his decision upon the evidence adduced at the hearing. Prior to the final decision on revocation, there should be a more formal revocation hearing at which there would be a final evaluation of any contested relevant facts and consideration whether the facts as determined warrant revocation.
The hearing must take place within a reasonable time after the parolee is taken into custody and he must be enabled to controvert the allegations or offer evidence in mitigation. The procedural details of such hearings are for the states to develop, but the Court specified minimum requirements of due process. Counsel is not invariably required in parole or probation revocation proceedings. The state should, however, provide the assistance of counsel where an indigent person may have difficulty in presenting his version of disputed facts without cross-examination of witnesses or presentation of complicated documentary evidence.
Presumptively, counsel should be provided where the person requests counsel, based on a timely and colorable claim that he has not committed the alleged violation, or if that issue be uncontested, there are reasons in justification or mitigation that might make revocation inappropriate. Nebraska Penal Inmates is much more problematical. The theory was rejected that the mere establishment of the possibility of parole was sufficient to create a liberty interest entitling any prisoner meeting the general standards of eligibility to a due process protected expectation of being dealt with in any particular way.
On the other hand, the Court did recognize that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a casebycase basis, and the full panoply of due process guarantees is not required. The power of the executive to pardon, or grant clemency, being a matter of grace, is rarely subject to judicial review. The Problem of the Juvenile Offender. The reforms of the early part of the 20th century provided not only for segregating juveniles from adult offenders in the adjudication, detention, and correctional facilities, but they also dispensed with the substantive and procedural rules surrounding criminal trials which were mandated by due process.
Justification for this abandonment of constitutional guarantees was offered by describing juvenile courts as civil not criminal and as not dispensing criminal punishment, and offering the theory that the state was acting as parens patriae for the juvenile offender and was in no sense his adversary. Disillusionment with the results of juvenile reforms coupled with judicial emphasis on constitutional protection of the accused led in the s to a substantial restriction of these elements of juvenile jurisprudence.
After tracing in much detail this history of juvenile courts, the Court held in In re Gault that the application of due process to juvenile proceedings would not endanger the good intentions vested in the system nor diminish the features of the system which were deemed desirable—emphasis upon rehabilitation rather than punishment, a measure of informality, avoidance of the stigma of criminal conviction, the low visibility of the process—but that the consequences of the absence of due process standards made their application necessary.
Thus, the Court in Gault required that notice of charges be given in time for the juvenile to prepare a defense, required a hearing in which the juvenile could be represented by retained or appointed counsel, required observance of the rights of confrontation and cross-examination, and required that the juvenile be protected against self-incrimination. On a few occasions the Court has considered whether rights accorded to adults during investigation of crime are to be accorded juveniles.
The Court ruled in Schall v. Martin that preventive detention of juveniles does not offend due process when it serves the legitimate state purpose of protecting society and the juvenile from potential consequences of pretrial crime, when the terms of confinement serve those legitimate purposes and are nonpunitive, and when procedures provide sufficient protection against erroneous and unnecessary detentions. Each state has a procedure by which juveniles may be tried as adults. In Stanford v. Kentucky , the Court held that the Eighth Amendment does not categorically prohibit imposition of the death penalty for individuals who commit crimes at age 16 or 17; earlier the Court had invalidated a statutory scheme permitting capital punishment for crimes committed before age The Problem of Civil Commitment.
To conform to due process requirements, procedures for voluntary admission should recognize the possibility that persons in need of treatment may not be competent to give informed consent; this is not a situation where availability of a meaningful post-deprivation remedy can cure the due process violation. Thus, the evidentiary standard of a preponderance, normally used in litigation between private parties, is constitutionally inadequate in commitment proceedings. Moreover, the criminal standard addresses an essentially factual question, whereas interpretative and predictive determinations must also be made in reaching a conclusion on commitment.
In Parham v. Marchant v. Pennsylvania R. Reclamation Dist. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law.
California, U. California U. Eldridge, U. In Nelson v. Colorado , the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See U. New Jersey, U. Luckett, U. Hunter, U. McMahon, U. McMillen v. Anderson, 95 U. Johnson, F. Illinois, U. Lieberman v. Van De Carr, U. Akron Park Dist. Caldwell, U. Piphus, U. Shevin, U. Carey v. Jerrico, Inc. Adams, U. See also Richards v. Jefferson County, U. Flowers, U. Kelly, U. Manzo, U. Hanrahan, U. Lindsey, U. Perkins, U. Hale, 68 U. McGrath, U. Ohio, U. Jerrico, U. McClure, U. Berryhill, U. Wong Yang Sung v. Larkin, U. Morgan, U. Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies.
Marshall v. Hortonville Educ. Compare Arnett v. Kennedy, U. See also id. See also ICC v. McElroy, U. But see Richardson v. Perales, U. Mathews v. Anglo-Canadian Shipping Co. However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street R. Department of Social Services, U. The Court purported to draw this rule from Gagnon v. Scarpelli, U. To introduce this presumption into the balancing, however, appears to disregard the fact that the first factor of Mathews v.
Thus, at least in this context, the value of the first Eldridge factor is diminished. The Court noted, however, that the Mathews v. Eldridge standards were drafted in the context of the generality of cases and were not intended for case-by-case application. Rogers, U. The Turner Court denied an indigent defendant appointed counsel in a civil contempt proceeding to enforce a child support order, even though the defendant faced incarceration unless he showed an inability to pay the arrearages.
The party opposing the defendant in the case was not the state, but rather the unrepresented custodial parent, nor was the case unusually complex. A five-Justice majority, though denying a right to counsel, nevertheless reversed the contempt order because it found that the procedures followed remained inadequate. The balancing decision is to be made initially by the trial judge, subject to appellate review.
Streater, U. Kramer, U. Brewer, U. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite. Roth, U. Arnett v. Burson, U. Compare Dixon v. Love, U. Montrym, U. But see American Mfrs. Sullivan, U. Mayor of New Bedford, Mass. Richardson, F. Board of Educ. Nestor, U. Board of Regents, U. Sindermann, U. See Speiser v. Randall, U. Much of the old fight had to do with imposition of conditions on admitting corporations into a state.
State Bd. The right-privilege distinction is not, however, totally moribund. See Buckley v. Valeo, U. James, U. Richardson v. Belcher, U. Fritz, U. See also Mathews v. Although property interests often arise by statute, the Court has also recognized interests established by state case law. Thus, where state court holdings required that private utilities terminate service only for cause such as nonpayment of charges , then a utility is required to follow procedures to resolve disputes about payment or the accuracy of charges prior to terminating service. Craft, U. The Court also held that no liberty interest was implicated, because in declining to rehire Roth the state had not made any charges against him or taken any actions that would damage his reputation or stigmatize him.
For an instance of protection accorded a claimant on the basis of such an action, see Codd v. See also Bishop v. Wood, U. Jones, U. Horowitz, U. See Leis v. Flynt, U. In contrast, a statutory assurance was found in Arnett v. Bishop v. See also Board of Curators v. Lopez, U. See also Barry v. Barchi, U. Town Court Nursing Center, U. Ewing, U. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were sought, it would be issued. A five-to-four decision, the opinion was written by Justice Stevens, replacing Justice Douglas, and was joined by Justice Powell, who had disagreed with the theory in Arnett. See id. The language is ambiguous and appears at different points to adopt both positions.
But see id. See also Cleveland Bd. Loudermill, U. The family-related liberties discussed under substantive due process, as well as the associational and privacy ones, no doubt provide a fertile source of liberty interests for procedural protection. See Armstrong v. See also Smith v. Organization of Foster Families, U. Doe, U. How the state law positively did this the Court did not explain. But, of course, the reputation-plus concept is now well-settled. See discussion below. See also Board of Regents v.
Gilley, U. Davis, U. In a later case, the Court looked to decisional law and the existence of common-law remedies as establishing a protected property interest. See also Montanye v. Haymes, U. Nebraska Penal Inmates, U. Dumschat, U. Woodard, U. Van Curen, U. See also Wolff v. McDonnell, U. Thompson, U. Conner, U. Austin, U. Roberts, U. See also Bragg v. Weaver, U. Logan v. Florida East Coast Ry. See Londoner v. City of Denver, U. Statutory proceedings affecting property rights which, by later resort to the courts, secures to adverse parties an opportunity to be heard, suitable to the occasion, do not deny due process. Bennett, U. Newport, U. Schmidt, U. Normet, U. However, if one would suffer too severe an injury between the doing and the undoing, he may avoid the alternative means.
Stanley v. Baldwin, U. Shaw, U. Grant Co. Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Di-Chem, U. The majority opinion draws no such express distinction, see id. But see Mitchell v. Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four-to-three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision.
See Di-Chem , U. More recently, the Court has applied a variant of the Mathews v. Connecticut v. Doehr, U. See also Arnett v. Compare Flagg Bros. Brooks, U. Edmondson Oil Co. Pope, U. In Barry v. See also FDIC v. Mallen, U. Homar, U. Justices Brennan and Stevens would have required confrontation and cross-examination. Colorado, U. The Court reasoned that after a conviction has been reversed, the criminal defendant is presumed innocent and any funds provided to the state as a result of the conviction rightfully belong to the person who was formerly subject to the prosecution.
Wright, U. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole. Taylor, U. When a state officer or employee acts negligently, the Court recognized, there is no way that the state can provide a pre-termination hearing; the real question, therefore, is what kind of post-deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the Due Process Clause is satisfied by the provision of a judicial remedy which the claimant must initiate.
X, No. FTC , F. United States Dep't of the Army , F. United States Parole Comm'n , 40 F. United States Agency for Int'l Dev. But see City of Chicago v. United States Dep't of the Treasury , F. FBI , No. Darby v. DOD , 74 Fed. United States , 84 Fed. See, e. United States Dep't of the Navy , F. Dalton , F. III, No. EPA , F. Times Co. NASA , F. USPS , No. Veneman , F. See Rose , U. See Ripskis v. HUD , F. Utah Apr. CIA , No. See Ripskis , F. Favish , S. May 17, Nat'l Ass'n of Retired Fed. Employees v. Horner , F. Workers Local No. NARA , S. United States Customs Serv. NLRB , F. SEC , F. Comm'r , F. Dep't of Justice , F. But see Armstrong v. Executive Office of the President , 97 F.
Ross Perot's offer "to help a federal agency fulfill its statutory duties to interdict drugs" Exemption 7 C ; Konigsberg v. May 27, rejecting categorical withholding for records based on insufficient "eviden[tiary]" support ; see also FOIA Update , Vol. XVII, No. See Schell v. HHS , F. FLRA , U. See United States Dep't of State v. Post Co. Citizen Health Research Group v. United States Dep't of Labor , F. See Dep't of the Air Force v.
Rose , U. United States Dep't of Commerce , F. Utah Wilderness Alliance, Inc. Hodel , F. Dep't of the Air Force , F. Ohio declining to protect medical malpractice settlement figures based upon "mere possibility that factual information might be pieced together to supply 'missing link' and lead to personal identification" of claimants ; Chi. Tribune Co. HHS , No. Office of Indep. Counsel , F. NARA v. United States Dep't of Justice , No. July 3, concluding that solicitation by employers would invade privacy of participants in union's training program. But see United States Dep't of State v. Ray , U. VA , F. Ohio rejecting argument based upon agency's concern that names of judges and attorneys could be used to search through databases to identify claimants and thereby invade privacy of claimants.
Hudson v. Dep't of the Army , No. Hughes , F. United States Dep't of Treasury , F. Dep't of the Interior , 53 F. See 5 C. United States Postal Serv. Life Ins. United States , F. See Barvick v. Cisneros , F. See Army Reg. NLRB , 90 F. Dep't of Justice , 73 F. United States Dep't of Justice , F. July 14, "The fact of [requester's former counsel's] representation is a matter of public record. Whether an individual possesses a valid license to practice law is also a matter of public record and cannot be protected by any privacy interest. Doe v. FBI , F. But see Times Picayune Publ'g Corp.
United States Dep't of Justice , 37 F. Lakin Law Firm, P. See Nation Magazine v. Ross Perot's offer to aid federal government in drug interdiction, a subject about which Perot had made several public statements ; see also Kimberlin v. Cir noting that government lawyer investigated by Department of Justice's Office of Professional Responsibility diminished his privacy interest by acknowledging existence of investigation but that he still retains privacy interest in nondisclosure of any details of investigation Exemption 7 C.
Post , U. June 6, declaring that even if "some of the names at issue were at one time released to the general public, individuals are entitled to maintaining the 'practical obscurity' of personal information that is developed through the passage of time". See Isley v. June 24, concluding that although "some of the events are known to certain members of the public. June 15, ; cf. Schiffer v. FBI , 78 F.
Baltimore Sun Co. VI, No. Babbitt , No. ACA, slip op. June 19, ; Wilson v. Dep't of Justice , No. June 14, protecting identity of individual who wrote to Senator about matter of public interest ; Holy Spirit Ass'n v. United States Dep't of State , F. Ortiz v. Judicial Watch, Inc. Rossotti , F. See Landmark Legal Found. IRS , 87 F. INS , No. CIA , F. Kleppe , F. Handley , F. Improvement v. USDA , No. Iowa Aug. Providence Journal Co. Espy , No. Publ'g Co. HUD , No. CIVP, U. Natural Desert Ass'n v.
United States Dep't of the Interior , 24 F. USDA , F. July 15, concluding that commercial mushroom growers operating under individual names have no expectation of privacy ; Lawyers Comm. INS , F. But see Campaign for Family Farms v. Glickman , F. United States Forest Serv. USDA , 77 F. FDA , F. NARA , F. But see Outlaw v. United States Dep't of the Army , No. F, slip op. Kyle v. United States , No. July 16, ordering disclosure of medical records of all servicemen involved in accident alike, including two who died and one who was still alive ; Rabbitt v.
Martin Luther King, Jr. United States v. Schlette , F. But see Kiraly v. Circuit cases that suggested protecting post-mortem "reputational" interests. See S. Fund for Constitutional Gov't v. Wichlacz v. United States Dep't of Interior , F. Fund , F. Dep't of State , No. In re Espy , F. But see Wilson v. June 18, ordering further declarations to determine whether any of the individuals investigated "are 'public figures' like the plaintiff whose involvement in Government operations would be of interest to the public". See Fund , F. Dep't of Justice , 11 F. Strassman v. July 14, "[E]ven widespread knowledge about a person's business cannot serve to diminish his or her privacy interests in matters that are truly personal.
Foster's] status did not at all 'detract' from those [privacy] interests in the Court's estimation means that they stood entirely undiminished despite it" and that "[i]n the future, other potential beneficiaries of the FOIA's privacy exemptions should be no less entitled to such treatment and commensurate privacy protection". See Nation Magazine , 71 F. United States Marine Corps , F. Ross Perot ; cf. Iowa Citizens for Cmty.
Improvement , F. See Shaw v. Studies v. Reno , No. See Hill , 77 F. Hill , 77 F. See Campaign for Family Farms , F. Sherman v. FBI , 13 F. Irons v. See Times Picayune , 37 F. See McCutchen v. HHS , 30 F. Edgar Hoover concerning well-known people "because persons who make allegations against public figures are often subject to public scrutiny" ; Ortiz , F. Comm'r, United States Customs Serv. West , No. June 12, finding thoughts, sentiments, and emotions of co-workers questioned in investigation of racial harassment claim to be within protections of Exemptions 6 and 7 C ; Hayes v. United States Dep't of Labor , No. June 18, magistrate's recommendation protecting information that "would have divulged personal information or disclosed the identity of a confidential source" in an OSHA investigation Exemption 7 C , adopted , S.
Partners v. United States Dep't of Energy , No. McLeod v. United States Coast Guard , No. But see Cooper Cameron Corp. Peace Corps , No. United States Dep't of Energy , F. V, No. McGehee v. Casey , F. Schrecker v. See Davin v. United States Dep't of Justice , 60 F. June 17, holding Exemption 7 C inapplicable to documents more than thirty years old because the government relied on a presumption that "all persons [who are] the subject of FOIA requests are.
Summers v. United States Dep't of Justice , 57 F. United States Dep't of the Interior , F. Idaho ordering temporary injunction of release of claimant names and amount claimed for victims of Teton Dam disaster, while allowing release of amount paid and category of payment with all personal identifying information deleted Exemptions 4 and 6. Campaign for Family Farms , F. Brown , U. Election Comm'n , F. VIII, No.
Finally, even if a document is clearly protected from disclosure by the deliberative process privilege, it may lose this protection if a final decisionmaker "chooses expressly to adopt or incorporate [it] by reference. A second primary limitation on the scope of the deliberative process privilege is that of course it applies only to "deliberative" documents and it ordinarily is inapplicable to purely factual matters, or to factual portions of otherwise deliberative memoranda. Circuit has firmly declared that factual information should be examined "in light of the policies and goals that underlie" the privilege and in "the context in which the materials are used.
In Montrose Chemical Corp. Train , for example, the summary of a large volume of public testimony compiled to facilitate the EPA Administrator's decision on a particular matter was held to be part of the agency's internal deliberative process. Circuit held that the very act of distilling the testimony, of separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Circuit opinion concerning a report consisting of factual materials prepared for an Attorney General decision on whether to allow former U. Circuit found that "the majority of [the report's] factual material was assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action," and that it therefore fell within the deliberative process privilege.
The second such circumstance is when factual information is so inextricably connected to the deliberative material that its disclosure would expose or cause harm to the agency's deliberations. If revealing factual information is tantamount to revealing the agency's deliberations, then the facts may be withheld. Circuit has held that the deliberative process privilege covers construction cost estimates, which the court characterized as "elastic facts," finding that their disclosure would reveal the agency's deliberations. Similarly, when factual or statistical information is actually an expression of deliberative communications, it may be withheld on the basis that to reveal that information would reveal the agency's deliberations.
United States Forest Service , explaining as follows:. Likewise, it is noteworthy that the D. Circuit has stated that the "results of. Circuit also has emphasized that agencies bear the burden of demonstrating that disclosure of such information "would actually inhibit candor in the decision-making process. Documents that are commonly encompassed by the deliberative process privilege include "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated," the release of which would likely "stifle honest and frank communication within the agency.
A category of documents particularly likely to be found exempt under the deliberative process privilege is "drafts," although it has been observed without much analysis that such a designation "does not end the inquiry. In a case involving purely factual data found not to fall within the deliberative process privilege, Petroleum Information Corp. United States Department of the Interior , the D. Circuit concluded that such factual information should be shielded by the privilege, or not, according to whether it involves "some policy matter. Lastly, protecting the very integrity of the deliberative process can, in some contexts, be the basis for the protection of factual information.
The second traditional privilege incorporated into Exemption 5 is the attorney work-product privilege, which protects documents and other memoranda prepared by an attorney in contemplation of litigation. The privilege sweeps broadly in several respects. However, the mere fact that it is conceivable that litigation might occur at some unspecified time in the future will not necessarily be sufficient to protect attorney-generated documents; it has been observed that "the policies of the FOIA would be largely defeated" if agencies were to withhold any documents created by attorneys "simply because litigation might someday occur. Further, it has been held that a document that was prepared for two disparate purposes was compiled in anticipation of litigation if "litigation was a major factor" in the decision to create it.
The attorney work-product privilege also has been held to cover documents "relat[ing] to possible settlements" of litigation. Second, Rule 26 b 3 of the Federal Rules of Civil Procedure allows the privilege to be used to protect documents prepared "by or for another party or by or for that other party's representative. Third, the work-product privilege has been held to remain applicable when the information has been shared with a party holding a common interest with the agency. In NLRB v. Fourth, the Supreme Court's decisions in United States v. Weber Aircraft Corp. Grolier Inc. Because factual work-product enjoys qualified immunity from civil discovery, such materials are discoverable "only upon a showing that the party seeking discovery has substantial need" of materials which cannot be obtained elsewhere without "undue hardship.
This "routinely or normally discoverable" test was unanimously reaffirmed by the Supreme Court in Weber Aircraft. Although several pre- Weber Aircraft circuit court decisions mistakenly limited attorney work-product protection to "deliberative" material, no distinction between factual and deliberative work-product should be applied. Circuit, to clarify once and for all that factual information is fully entitled to work-product protection.
A collateral issue is the applicability of the attorney work-product privilege to witness statements. Within the civil discovery context, the Supreme Court has recognized at least a qualified privilege from civil discovery for such documents -- such material was held discoverable only upon a showing of necessity and justification. Circuit has firmly held that witness statements are protectible under Exemption 5.
Taylor , the seminal case in which the Supreme Court articulated the attorney work-product privilege doctrine. Any such differences over the traditional protection accorded witness statements do not in any event affect the viability of protecting aircraft accident witness statements; such statements are protected under a distinct common law privilege that was first enunciated in Machin v. As a final point, it should be noted that the Supreme Court's decision in Grolier resolved a split in the circuits by ruling that the termination of litigation does not vitiate the protection for material otherwise properly categorized as attorney work-product.
Attorney-Client Privilege. The third traditional privilege incorporated into Exemption 5 concerns "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice. The Supreme Court, in the civil discovery context, has emphasized the public policy underlying the attorney-client privilege -- "that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
The parallelism of a civil discovery privilege and Exemption 5 protection is particularly significant with respect to the concept of a "confidential communication" within the attorney-client relationship. To this end, one court has held that confidentiality may be inferred when the communications suggest that "'the government is dealing with its attorneys as would any private party seeking advice to protect personal interests. United States , the Supreme Court held that the attorney-client privilege covers attorney-client communications when the specifics of the communication are confidential, even though the underlying subject matter is known to third parties. The Supreme Court in Upjohn concluded that the privilege encompasses confidential communications made to the attorney not only by decisionmaking "control group" personnel, but also by lower-echelon employees.
Circuit held that otherwise confidential agency memoranda are not protected under the privilege if they are authoritative interpretations of agency law. The FOIA neither expands nor contracts existing privileges, nor does it create any new privileges. A quarter-century ago, in Federal Open Market Committee v. Merrill , the Supreme Court found an additional privilege incorporated within Exemption 5 based upon Federal Rule of Civil Procedure 26 c 7 , which provides that "for good cause shown.
This qualified privilege is available "at least to the extent that this information is generated by the Government itself in the process leading up to the awarding of a contract" and expires upon the awarding of the contract or upon the withdrawal of the offer. This harm rationale has led one court to hold that the commercial privilege may be invoked when a contractor who has submitted proposed changes to the contract requests sensitive cost estimates. While the breadth of this privilege is still not fully established, a realty appraisal generated by the government in the course of soliciting buyers for its property has been held to fall squarely within it, as have documents containing communications between agency personnel, potential buyers, and real estate agents concerning a proposed sale of government-owned real estate, an agency's background documents which it used to calculate its bid in a "contracting out" procedure, and portions of inter-agency cost estimates prepared by the government for use in the evaluation of construction proposals submitted by private contractors.
The Supreme Court in United States v. Similarly, in Hoover v. Department of the Interior , the Court of Appeals for the Fifth Circuit recognized an Exemption 5 privilege based on Federal Rule of Civil Procedure 26 b 4 , which limits the discovery of reports prepared by expert witnesses. Most recently, in Judicial Watch, Inc. Circuit applied the presidential communications privilege -- a privilege it had first recognized just seven years earlier -- under Exemption 5 of the FOIA to protect Department of Justice records regarding the President's exercise of his constitutional power to grant pardons. In the wake of the Supreme Court's decision three years ago in Department of the Interior v. Klamath Water Users Protective Association , the law is somewhat unsettled as to documents generated in the course of settlement negotiations.
Prior to Klamath , several courts had held that communications reflecting settlement negotiations between the government and an adverse party, which are of necessity exchanged between the parties, could not be protected as "intra-agency" memoranda under Exemption 5. Accordingly, one court has held that notes of an agency employee that reflected positions taken and issues raised in treaty negotiations had been properly withheld pursuant to Exemption 5 because their release would harm the agency's negotiation process. Chiles Power Supply, Inc. It is noteworthy in this regard that while earlier cases had not gone quite so far as to squarely recognize a settlement-negotiation privilege identified as such, many had ruled that parties making discovery demands for settlement communications would be required to make heightened, or "particularized," showings of relevancy in order to obtain them in civil discovery.
Accordingly, in light of this authoritative array of supporting precedent and the Sixth Circuit's express recognition of the settlement-negotiation privilege in Goodyear Tire -- much like the D. Circuit's recognition of the aircraft accident investigation privilege forty years earlier in Machin -- such information may be withheld by agencies at the administrative level under Exemption 5, within the threshold conditions imposed by Klamath , especially where disclosure would be particularly damaging to the government's ability to settle cases -- but care should of course be taken to maximize the prospects of further favorable case law development on this important FOIA principle. Because Exemption 5 incorporates virtually all civil discovery privileges, courts also have recognized the applicability of other privileges, whether traditional or new, in the FOIA context.
Lastly, while it is evident that courts will continue to apply such civil discovery privileges under Exemption 5 of the FOIA, the mere fact that a particular privilege has been recognized by state law will not necessarily mean that it will be recognized by a federal court. See, e. Julian , U. NLRB v. Office of Special Counsel , F. Open Mkt. Merrill , U. See United States v. V, No. But see also Burka v. HHS , 87 F. Martin , F. See Burka v. See Grolier , U. Dep't of the Air Force , F. But see In re Diet Drugs Prods. Liability Litig. See Weber Aircraft , U. FOIA should not be read to alter that result. Nat'l Ass'n of Criminal Def.
Lawyers , No. July 22, holding that although agency made limited disclosures of report pursuant to criminal discovery rules, it was protectible because it was not "normally available by law" to party in litigation with agency. See H. X, No. See Julian , U. Kipta , No. May 3, following Julian. See United States Dep't of Justice v. Klamath Water Users Protective Ass'n v. Department of the Interior , F. See id. Citizen, Inc. United States Dep't of Justice , F. Dep't of Justice , F. See Burt A. Bureau of Prisons , F. See Klamath , U. Bowen , No. May 24, "courts have regularly construed this threshold test expansively rather than hypertechnically" ; FOIA Update , Vol.
III, No. Lawyers v. United States Dep't of Justice , No. July 22, protecting agency-generated draft report circulated to nongovernmental parties for review and comment. See Ryan , F. See Tigue v. See Citizens for Pa. United States Dep't of the Interior , F. Norton , F. United States v. Allsteel, Inc. See Hertzberg v. Veneman , F. Durns , F. Badhwar v. Soucie v. David , F. CNA Fin. Donovan , F. Hoover v. Ass'n v. OSHA , F. Nat'l Endowment for the Humanities , F. Rashid v. HHS , No. EPA , 18 F. Comm'n on United States-Pac. Policy , No. SBA , No. May 24, protecting records originating with private insurance companies which acted as "fiscal intermediaries" for Health Care Financing Administration ; Am.
Soc'y of Pension Actuaries v. Pension Benefit Guar. June 14, protecting documents prepared by paid outside consultants. ICC , F. CIA , F. Hennessey v. United States Agency for Int'l Dev. See Judicial Watch, Inc. United States Dep't of Energy , No. May 7, Clinton , No. July 3, holding that the "Office of the President, including its personal staff. Reporters Comm. FEC , F. HHS , F. But see Texas , F. United States Dep't of the Interior , No. United States Dep't of Interior , F. Dep't of Energy , F. HHS , 63 F.
May 18, FCC , F. Sears , U. Shorr v. United States Forest Serv. United States Dep't of Treasury , 10 F. Consumer Prod. Safety Comm'n , F. Nat'l R. Passenger Corp. May 13, concluding inexplicably that in multi-level decisional process deliberative process privilege applies only where there is evidence that final decisionmaker has personally reviewed documents in question appeal pending ; cf. Bangor Hydro-Elec. Wolfe v. Sec'y of Labor , F. XVI, No. See Sears , U. Clinton , F. United States Dep't of Treasury , No. Levi , 1 Gov't Disclosure Serv. See Mapother v.
Dep't of Justice , 3 F. Vaughn v. Rosen , F. United States Dep't of the Army , F. EPA , No. A statement of an opinion by an agency official or preliminary findings reported by a public affairs official do not necessarily constitute a statement of EPA policy or final opinion that has the force of law. Thornburgh , No. USDA , F. Fund, Inc. Dep't of the Air Force , 44 F. Group, Inc. HUD , F. IRS , No. CV-F, U. NLRB , No. United States Marine Corp. But see Carter v. United States Dep't of Commerce , F. Maricopa Audubon Soc'y v. DOD , F. Reno , No. United States Dep't of the Navy , No. C, slip op. Ohio Sept. Coalition for Integrated Educ. United States Dep't of Educ. July 20, finding material prepared during compliance review that goes beyond critique of reviewed program to discuss broader agency policy to be part of deliberative process , appeal dismissed voluntarily , No.
Post Co. DOD , No. United States Dep't of Labor , F. Califano , F. But see Maricopa , F. Watt , F. Alaska confusingly refusing to extend privilege to documents originating in deliberative process merely because process held in abeyance and no decision reached.