FOIA Update: FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking

January 1, 1989

FOIA Update
Vol. X, No. 2
1989

FOIA Counselor


Exemption 6 and Exemption 7(C):   Step-by-Step Decisionmaking

The Supreme Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989), greatly affects the protection of personal privacy interests under the Freedom of Information Act. The new guiding principles set forth in Reporters Committee, which are applicable to Exemption 6 and Exemption 7(C) of the Act alike, alter the mechanics of the basic "balancing process" by which privacy-protection decisions are to be made under these exemptions. Below is a step-by-step guide to the decisionmaking process that now should be followed under both Exemption 6 and Exemption 7(C):

STEP ONE:  DETERMINE WHETHER A PERSONAL PRIVACY INTEREST IS INVOLVED.

The first step in considering the possible applicability of Exemption 6 or Exemption 7(C) (once its threshold requirement is passed) is to determine whether disclosure would threaten a personal privacy interest. There first must be a viable privacy interest in the requested information for any further consideration of privacy-exemption protection to be appropriate. See, e.g., FOIA Update, Summer 1986, at 3-4. Remember:  To qualify, the information must involve the privacy interest of an identifiable, living person. See FOIA Update, Sept. 1982, at 5. Possible Result:  If no personal privacy interest is involved, then the privacy exemptions do not apply.

STEP TWO:  DETERMINE WHETHER A PUBLIC INTEREST IS INVOLVED.

Once a viable personal privacy interest is identified, the inquiry shifts over to the "public interest" side of the balance. Here, full consideration should be given to how disclosure would benefit the general public, but only in light of the content and context of the information in question. Remember: The requester's particular purpose, circumstances, and proposed use no longer are to be considered; this means that a requester's own "socially useful purpose" now receives no special attention. 109 S. Ct. at 1480-81 & n.20. Possible Result:  If disclosure to the general public would serve no public interest at all, then any identified privacy interest should be protected under the applicable privacy exemption.

STEP THREE:  DETERMINE WHETHER AN IDENTIFIED PUBLIC INTEREST QUALIFIES FOR CONSIDERATION.

The next step, required now for the first time under Reporters Committee, is to determine whether an identified public interest actually qualifies for balancing under the new Reporters Committee public interest standard. See 109 S. Ct. at 1482. Remember: Only if an identified public interest falls within the Act's "core purpose" of "shed[ding] light on an agency's performance of its statutory duties," does it qualify for inclusion in the balancing process. Id. at 1481-83. Information that "reveals little or nothing about an agency's own conduct" does not meet this narrowed public interest standard. Id. at 1481. Possible Result:  If disclosure would serve no "core purpose" interest, then any identified privacy interest should be protected under the applicable privacy exemption.

STEP FOUR:  BALANCE THE PERSONAL PRIVACY INTEREST AGAINST ANY QUALIFYING PUBLIC INTEREST.

Lastly, if it is determined that a public interest qualifying under the Reporters Committee standard is present, then that interest should be balanced against the personal privacy interest identified at the outset. This balancing process necessarily requires some assessment and comparison of the relative magnitudes of the two interests. See, e.g., FOIA Update, Winter 1986, at 4. Remember: At this stage, the decisionmaking process becomes the same as the one traditionally employed under the Act's privacy exemptions. See FOIA Update, Spring 1988, at 3. Possible Results: If the privacy interest is greater, then it should be protected under the applicable privacy exemption; if the public interest is greater, then the privacy exemptions do not apply.

Additional Considerations

In following this step-by-step decisionmaking process, certain additional considerations, which will apply in some cases, should be kept in mind. First, any public availability of the information in question will disqualify it from privacy protection only where it fails the new "practical obscurity" standard. See 109 S. Ct. at 1485. Second, the redaction of all identifying information sometimes will be sufficient to protect privacy interests, sometimes not, depending upon the nature of the records in full context of the request. See, e.g., Carter v. Department of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987); see also FOIA Update, Spring 1986, at 2. Finally, some information, as with the "rap sheets" sought in Reporters Committee itself, may be appropriate for "categorical" withholding. See 109 S. Ct. at 1483-85; see also FOIA Update, Spring 1989, at 6.

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