Administrative law - First Circuit decides qualified federal law enforcement privilege outweighs state's prerogative to enforce criminal code.

• Author: Minsky, Alyssa B.

Administrative Law--First Circuit Decides Qualified Federal Law Enforcement Privilege Outweighs State's Prerogative to Enforce Criminal Code--Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007)

In 1946, Congress enacted the Administrative Procedure Act (APA), establishing the standards under which federal courts may review the decisions of government agencies. (1) In addition, pursuant to the so-called housekeeping statute, agency heads may regulate the distribution of agency records. (2) In Puerto Rico v. United States, (3) the United States Court of Appeals for the First Circuit considered both of these statutes in determining whether a state had a nonstatutory cause of action to obtain information from the Federal Bureau of Investigation (FBI) to aid in its criminal investigation of the FBI. (4) The court held that Puerto Rico did not have a nonstatutory cause of action and that it would instead have to obtain the requested materials under the APA. (5)

In October of 2005, the Puerto Rico Department of Justice (PRDOJ) issued a subpoena demanding that the U.S. Attorney produce documents and photographs relating to an FBI operation that resulted in the death of a Puerto Rican citizen, Filiberto Ojeda Rios (Ojeda). (6) The FBI initially indicated that its regulations prohibited the disclosure of such materials; following further communications among the U.S. Attorney, the FBI, and the PRDOJ, the U.S. Attorney subsequently offered to allow the PRDOJ to inspect some of the items in the presence of an FBI official. (7) The PRDOJ initially acquiesced but later demanded full access to the materials. (8) When the FBI refused to comply, the PRDOJ filed suit in January of 2006 to compel the release of the items. (9)

The following month, an FBI agent used pepper spray to control an agitated crowd gathered outside of a building the FBI was searching pursuant to a warrant relating to the Ojeda case. (10) The PRDOJ issued subpoenas for photographs of the incident, the names of agents involved in the operation, and FBI protocol on the use of force. (11) When the FBI moved to quash the subpoenas, the PRDOJ filed a second complaint to compel the release of the materials. (12) The district court ruled in favor of the United States, holding that the issue was not reviewable because there had been no final agency action. (13) On appeal, the First Circuit affirmed the holding that the FBI's decision to withhold the materials was appropriate. (14) The court also recognized a qualified privilege for law enforcement procedures. (15)

Under the APA, "[a] person suffering legal wrong because of agency action ... is entitled to judicial review thereof." (16) A court will only find an agency's decision to withhold information to be "unlawful" if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law...." (17) The Department of Justice (DOJ) has specific regulations for the production or disclosure of material or information in state and federal proceedings. (18) In United States ex rel. Touhy v. Ragen, (19) the Supreme Court held that the Attorney General was permitted to restrict disclosure of FBI documents by forbidding his subordinates from releasing them. (20)

Several circuit courts have addressed whether a non-party government agency's failure to comply with a subpoena should be reviewed pursuant to the APA standards or the Federal Rules of Civil Procedure (FRCP) concerning discovery. (21) The United States Court of Appeals for the D.C. Circuit held in Houston Business Journal, Inc. v. Office of the Comptroller of the Currency, (22) that a litigant seeking materials from a federal agency must follow the agency's own protocol. (23) If the agency refuses to release the requested items, the litigant's sole remedy is to file an action under the APA. (24) On the other hand, the Court of Appeals for the Ninth Circuit came to the opposite conclusion in Exxon Shipping Company v. U.S. Department of Interior, (25) holding that the FRCP concerning discovery apply to government agencies regardless of whether a United States government agency is a party to the underlying action. (26) A court may also allow a party to invoke a nonstatutory cause of action following an agency's refusal to produce requested materials. (27)

The Freedom of Information Act (FOIA), which mandates the release of agency records to the public unless they are protected by an exemption, may, in effect, limit agencies' housekeeping authority. (28) The law enforcement exemption recognizes the interest law enforcement agencies have in safeguarding information pertaining to their investigations. (29) This privilege is also grounded in case law: prior to Puerto Rico v. United States, the First Circuit recognized a privilege for information that could thwart government investigations. (30)

In Puerto Rico v. United States, the First Circuit affirmed the district court's decision, determining Puerto Rico did not have a nonstatutory cause of action against the United States, but could instead seek the requested material pursuant to the APA. (31) Rather than simply addressing whether there had been final agency action by the FBI, the court resolved the case on its merits. (32) The court reasoned that Puerto Rico could adequately vindicate its rights through the APA, thus rejecting Puerto Rico's request for nonstatutory review. (33) Furthermore, the court determined the FBI's decision to withhold materials was reasonable under the APA's deferential standard of review. (34) In recognizing the law enforcement privilege, the court emphasized that it was a qualified privilege that would be overridden if the requesting party's interest in obtaining the materials outweighed the government's interest in preserving its law enforcement techniques. (35) The court also stressed that the DOJ had issued a thorough report, including recommendations for future situations, after investigating Ojeda's death. (36)

In Puerto Rico v. United States, the court did not determine whether it had jurisdiction to hear the case but instead resolved the case on its merits. (37) To answer the jurisdictional question, the court would have determined whether there was final agency action on the part of the United States when it moved to quash Puerto Rico's subpoena. (38) In its decision, the court joined other circuits in recognizing a qualified law enforcement privilege. (39)

Although the court framed the issue in terms of a nonstatutory cause of action and sovereign authority, it asserted its holding in terms of the APA. (40) The First Circuit goes one step further than the EPA v...