MEMORANDUM AND ORDER ON PETITION FOR REHEARING
Moving for a rehearing, the Hospital asserts that just before issuance of our opinion, and unknown to this court, the Hospital entered into a non-Board settlement with Rita Yard. Accordingly, the ground relied upon in this court's opinion, Exemption 7(A), is said to be no longer applicable, as disclosure of the files in question would allegedly no longer interfere with at least that enforcement proceeding. The Hospital also argues that we erred in assuming that its only reason for seeking disclosure was to defend in the Rita Yard proceeding.
We deny the motion for rehearing. Our decision was, of course, based upon the factual situation existing at the time the district court rendered the judgment appealed from. At that time, the Hospital was faced with an enforcement proceeding on behalf of Rita Yard; in its complaint the Hospital said it sought disclosure in order to prepare a defense.
Assuming that a different factual situation now obtains, it would plainly be inappropriate for this court to attempt to ascertain, as part of this appeal, the facts of the allegedly new situation, and to adjudicate de novo whatever exemption claims may be advanced in the new situation. This court is also satisfied that it acted correctly in proceeding on the assumption that the Hospital's interest in disclosure was for the reasons asserted in its complaint. In any event, the denial of in camera review in the context of a pending enforcement proceeding was based on more general concerns as well.
This is not to say that a changed factual situation could not alter the Board's posture under FOIA and with respect to Exemption 7(A). Obviously this court's reasoning as to the 7(A) exemption drew sustenance from the factual setting. In our opinion an attempt was made to indicate the facts deemed important to decision, as well as to identify some of the issues still left open. If the Hospital believes that it is now entitled to relief under FOIA because of changed circumstances not covered in our decision, it should renew its request to the Board and thereafter if appropriate seek relief in the district court.
We are fully sensitive to the policy of expedition in FOIA proceedings and are conscious of the delay our action implies. But the Board and district court, if necessary, should have the opportunity to focus on any claim made in new context. We would hope that any new proceeding could move forward to resolution rapidly.
* Of the U.S. Supreme Court (Ret.) sitting by designation.