FOIA Update: Supreme Court to Hear Privacy Case

January 1, 1991

FOIA Update
Vol. XII, No. 1
1991


Supreme Court to Hear Privacy Case

The United States Supreme Court has decided to hear its first Freedom of Information Act case in nearly two years, a case involving the protection of names and home addresses under Exemption 6 of the Act.

On March 4, the Supreme Court granted the Solicitor General's petition for certiorari in Department of State v. Ray, 111 S. Ct. 1101 (1991), agreeing to review a decision by the Eleventh Circuit Court of Appeals that would require disclosure of personal identifying information regarding hundreds of Haitian refugees who were interviewed by U.S. immigration officials about their well-being after they were returned to Haiti from the United States.

Immigration -Related FOIA Requests

The Ray case arose several years ago when Michael D. Ray, a Miami immigration attorney, began making use of the FOIA in connection with his clients' immigration proceedings. Representing several Haitian nationals seeking political asylum in the United States, Ray sought access to any State Department or INS records that might support his clients' asylum claims. He focused most particularly on reports of investigatory trips to Haiti that were taken by State Department and INS officials to determine whether Haitian refugees denied admittance to the United States suffered any mistreatment in Haiti upon their return.

The State Department maintained such records, including confidential interviews conducted with hundreds of repatriated Haitians, which showed no evidence of mistreatment by Haitian authorities. It disclosed these reports to Ray under the FOIA, but it withheld the names of the interviewed Haitians, as well as other identifying information, on personal privacy grounds under Exemption 6.

On behalf of himself and three Haitian clients facing deportation, Ray challenged the applicability of Exemption 6 in court. He argued that he and his clients needed access to the identities of all the interviewed Haitians so that they could conduct their own investigation into such matters -- including an inquiry into whether the United States was adequately monitoring Haiti's treatment of returned refugees and accurately conducting its interview process. In short, they indicated their intention to locate and "re-interview" the repatriated Haitians in order to verify the accuracy of the State Department's records.

Direct vs. Indirect Effects

Both the district court and the court of appeals ruled in Ray's favor and ordered disclosure of the Haitians' identities. Neither court attached much weight to the interviewees' personal privacy interests in remaining anonymous, nor to the fact that the State Department gave all interviewees a firm pledge of confidentiality. Most significantly, the Eleventh Circuit ruled that disclosing the identities would serve a greater immigration-related public interest indirectly, in that they would provide "a means to obtain 'public interest' information." Ray v. Department of Justice, 908 F.2d 1549, 1555 (11th Cir. 1990).

The State Department, however, strongly contends that the interviewees would suffer a great personal privacy invasion if "re-interviewed" and that the Eleventh Circuit impermissibly looked to possible indirect effects of FOIA disclosure in conducting its public interest balancing. In petitioning for Supreme Court review, the Solicitor General stated the Government's view that a proper consideration of the public interest served by a requested FOIA disclosure should focus upon the direct effects of disclosure, "based upon the intrinsic value of the requested material in conveying information about the conduct of government."

The Ray case will provide the Supreme Court with its first opportunity to apply the privacy- protection principles of its landmark FOIA decision in Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989).

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