4th Circuit Splits in BlackBerry FOIA Case

     (CN) – The Freedom of Information Act neither fully shields nor exposes documents swapped between the government and BlackBerry maker Research in Motion, the 4th Circuit ruled on a 2-1 vote. The court took the middle ground in a FOIA dispute between a law firm and the Department of Justice, which agreed to help RIM fight a patent suit filed by the firm’s client.




     Hunton & Williams represented New Technology Products in its patent claim against Canada-based RIM. As the largest single user of BlackBerry devices, the government joined forces with RIM to fight the patent lawsuit. RIM faced an injunction that could have wiped BlackBerry’s off the market.
     They agreed to swap documents on a confidential “common interest” basis, and the government later intervened in the case.
     RIM settled the case in 2006 for $612.5 million.
     Shortly thereafter, Hunton filed a FOIA request with the DOJ, demanding records of communications between the government and RIM.
     The government withheld about half of the requested documents, citing FOIA’s exemption for “interagency or intra-agency memos or letters” that wouldn’t normally be available to private parties during litigation.
     The district court ruled that all but three documents were protected by this exemption, a ruling the Richmond, Va.-based appeals court declined to fully embrace.
     The government had argued that its agreement with RIM shielded everything, while Hunton insisted the exemption protected nothing.
     “Neither position fully reflects the balance struck in FOIA and the cases that have interpreted it,” Judge J. Harvie Wilkinson III wrote for the majority opinion.
     He noted that FOIA was enacted to promote government transparency, but said that doesn’t mean government agencies must operate “in a fishbowl.”
     “FOIA was meant to foster political accountability, not to force the United States into a uniquely disadvantaged litigation posture,” Wilkinson wrote.
     For the exemption to apply, he said, “an agency must show that it had agreed to help another party prevail on its legal claims at the time of the communications at issue because doing so was in the public interest. It is not enough that the agency was simply considering whether to become involved.”
     The FOIA case rested on the point at which the government and RIM agreed to work together for the public good.
     The court held that the FOIA exemption applied to all communications after the November 2005 agreement, but it vacated the finding that the relationship existed eight months prior.
     “On remand, the district court should determine the point in time when the DOJ decided that the public’s interest converged with RIM’s interest in opposing broad injunctive relief, that it wanted RIM to prevail in its litigation, and that it would assist RIM in doing so,” Wilkinson wrote.
     In a dissenting opinion, Judge M. Blane Michael said the documents were “improperly withheld,” because they didn’t qualify as “intra-agency” records.
     “In communicating with the DOJ with respect to the BlackBerry litigation, RIM was acting in its own interest as a self-advocate at the expense of its opponent and competitor,” Michael wrote.

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