Appeals court allows secrecy of most of report on Waldheim's wartime activities

WASHINGTON, D.C. — The federal government can keep secret most of a report that details the wartime activities of Kurt Waldheim, former secretary-general of the United Nations and former president of Austria, the U.S. Court of Appeals in Washington, D.C., ruled in mid- September.

In its decision the court expanded the government’s ability to withhold records under Freedom of Information Act exemptions protecting deliberative materials and law enforcement activities.

In 1987, shortly after the United States barred former Nazi Waldheim from the country, retired intelligence officer John Mapother and journalist Stephen Nevas filed FOI Act requests for the report that led to Waldheim’s ban. When the government in 1987 denied their requests they sued in federal district court in Washington, D.C. In April 1992 the district court ordered disclosure except for portions containing conclusions, recommendations and opinions, subject to the FOI Act’s Exemption 5; classified information under Exemption 1; and, law enforcement records showing the identity of confidential sources, Exemption 7(d).

The government appealed, claiming most of the report was deliberative since it was prepared to help the Justice Department reach a decision about Waldheim. It also claimed Exemption 7(a) because release could interfere with law enforcement proceedings if Waldheim ever tried to enter the United States. The requesters said Waldheim would never attempt to reenter the United States, and so no law enforcement proceedings would occur.

The appeals court ruled for the government claiming that the Waldheim Report exempt as deliberative because it was “assembled through an exercise in judgment” for the “benefit of an official called upon to take a discretionary action.” However, the court ordered disclosure of a chronology of Waldheim’s activities listed in the report.

The court rejected both the requesters and the government’s arguments about whether release would interfere with law enforcement proceedings and crafted a new “categorical” standard for withholding law enforcement records. Whether or not Waldheim would be likely to appeal his ban, the court said, if it is reasonable generally to assume that persons banned from the United States might challenge their exclusion, the government can categorically claim that release would interfere with law enforcement proceedings.

(Mapother v. Department of Justice; Counsel: David Vladeck, Washington, D.C.)