The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Pending before the Court is a motion by Defendant New York City
Board of Education ("NYC BOE") for a protective order or
injunctive relief barring disclosure under the Freedom of
Information Act ("FOIA") of certain documents, which were created
in connection with mediation of this case. See Letter from
Lawrence J. Profeta on behalf of NYC BOE (July 14, 2005).
On September 10, 2004, intervenors John Brennan et al.
("Brennan") filed a request pursuant to FOIA, 5 U.S.C. § 552 et
seq., for various documents. Thereafter, NYC BOE sought
Magistrate Judge Levy's assistance in preventing the disclosure
of three documents that were created in connection with mediation
in this case. See United States v. New York City Bd. of Educ.,
No. CV-96-0374 (January 21, 2005). On November 1, 2004,
Magistrate Judge Levy precluded the United States from releasing
these documents. See id. On January 21, 2005, the Court
"construe[d] the November 1, 2004 Order as a protective order,
pursuant to Federal Rule of Civil Procedure 26(c), barring
discovery of the specified documents under Rule 26, but not
necessarily under FOIA"; it expressly noted that "[d]isclosure of
these documents under FOIA [wa]s a separate matter, which [wa]s
not before the Court." Id.
On February 9, 2005, the United States denied the FOIA request.
See Letter from Michael E. Rosman on behalf of Brennan (July
18, 2005) at 2. On March 2, 2005, Brennan submitted a letter to
the United States, appealing its decision to deny the request. See id. Brennan's appeal is currently pending. See id.
Pursuant to Fed.R. Civ. Pro. 26(c), the Court may issue a
protective order, as it did here, limiting the scope of discovery
or disclosure. A person's right to disclosure under FOIA,
however, is separate from that under Rule 26. See, e.g., Mayock
v. Nelson, 938 F.2d 1006, 1008 (9th Cir. 1991) ("[A] person's
rights under FOIA are neither diminished nor enhanced by
`litigation-generated need' for agency documents." (quoting NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 n. 23 (1978))).
Therefore, NYC BOE now requests that this Court take the
additional step of barring disclosure under FOIA of the three
NYC BOE's motion, however, is inappropriate. As set forth
below, the Court does not have jurisdiction to enjoin disclosure
of documents under FOIA until the United States has made a final
determination to disclose the documents. If the United States
ultimately decides to disclose the documents, NYC BOE may then
file a separate action to contest that decision.
Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court "has
jurisdiction to enjoin [an] agency from withholding agency
records and to order the production of any agency records
improperly withheld from the complainant" after the requester has
exhausted his or her administrative remedies. See Ruotolo v.
Department of Justice, 53 F.3d 4, 8 (2d Cir. 1995) ("The denial
of requested information must be appealed to the head of an
agency." (citing Oglesby v. United States Dep't of Army,
920 F.2d 57, 61 (D.C. Cir. 1990))). Because NYC BOE is seeking to enjoin disclosure of these documents, §
552(a)(4)(B) is not applicable. Of course, if Brennan is
ultimately unsuccessful in his appeal of the United States'
denial of his FOIA request, he may file an action in federal
Pursuant to the Administrative Procedures Act ("APA"), however,
a third party may challenge an agency's final decision to
disclose a document under FOIA. See Chrysler Corp. v. Brown,
441 U.S. 281, 292, 317-18 (1979) (Although "[§ 552(a)(4)(B) does
not give the authority to bar disclosure[,]" . . . a decision to
disclose may be reviewed under the APA.). Therefore, if the
United States ultimately reverses course and decides to disclose
the documents, NYC BOE may file an action in federal court
challenging that decision.
NYC BOE's motion is denied.