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November 24, 1999

 

FOIL-AO-11832

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear

I have received your letter of October 19 concerning "res judicata". You have asked
whether an agency may deny a request for records on the ground that a denial of a previous
request for "similar information" was sustained by the Supreme Court more than ten years
ago, and whether the ruling has "a binding effect on any other requester who chooses to seek
release of the same information."

In this regard, I offer the following comments.

First, the principle of "res judicata" pertains to a situation in which a court has
rendered a determination and one or more of the parties seeks to initiate a second judicial
proceeding. In that situation, a party could not seek a second judicial review of the same
matter in which he or she was previously involved. As such, assuming that a person other
than a party to a judicial proceeding seeks records similar to those that were the subject of the
proceeding, the principle of "res judicata" would not apply.

Second, however, the initial decision may serve as precedent, and if indeed the
records are so similar to those initially considered and there has been no change in the law or
facts, the precedent might be viewed as binding.

Third, "similar" may not mean "same." On the basis of your letter, I am unaware of
differences that might exist between the records determined to be deniable by the court and
those that may be of your interest now. Moreover, it is possible that legislation enacted since
the determination may require a different result. It is possible, too, that facts and
circumstances may require a different result. For instance, disclosure of records compiled for
law enforcement purposes might interfere with an active investigation and be withheld with
justification under §87(2)(e)(i). However, after the investigation has ended, the same records
might become available because disclosure would no longer interfere with an investigation.
Records pertaining to an individual might be withheld on the ground that disclosure would
constitute "an unwarranted invasion of personal privacy" pursuant to §87(2)(b).
Nevertheless, if that person has died, the exception may no longer be applicable. In short, the
extent to which a judicial decision rendered ten years ago may have precedential effect is
questionable.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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