Frederick W. Bauer, Appellant, v. United States of America, 966 F.2d 701 (D.C. Cir. 1992)

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US Court of Appeals for the District of Columbia Circuit - 966 F.2d 701 (D.C. Cir. 1992) May 8, 1992. Rehearing En Banc Denied July 2, 1992

Before WALD, D.H. GINSBURG and SENTELLE, Circuit Judges.



Upon consideration of the motion for appointment of counsel, the motion for summary affirmance and the opposition thereto, it is

ORDERED that the motion for appointment of counsel be denied. It is

FURTHER ORDERED that the motion for summary affirmance be granted in part. The district court properly determined that the drug conviction file was exempt from disclosure pursuant to 5 U.S.C. § 552(b) (7) (A) and 5 U.S.C. § 552a(j) (2). The district court also properly rejected appellant's fee waiver request. See Ely v. Postal Service, 753 F.2d 163, 165 (D.C. Cir.) (per curiam), cert. denied, 471 U.S. 1106 (1985) (indigence alone does not provide a basis for a fee waiver under the Privacy Act or FOIA). It is

FURTHER ORDERED that the portion of the district court's April 25, 1991 order concluding that the file relating to appellant's tax-related conviction was exempt from disclosure be vacated and the case remanded for further proceedings. See Crooker v. BATF, 789 F.2d 64, 67 (D.C. Cir. 1986). The government has yet to demonstrate that the materials contained in that file are associated with a "concrete prospective law enforcement proceeding," Carson v. United States Dept. of Justice, 631 F.2d 1008, 1018 (D.C. Cir. 1989), and that their disclosure could reasonably be expected to interfere with those proceedings.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.