FOIA Update: Supreme Court Rules in Mailing List Case

January 1, 1997

FOIA Update
Vol. XVIII, No. 1
1997


Supreme Court Rules in Mailing List Case

In a development that is unprecedented for a Freedom of Information Act case, the United States Supreme Court agreed to review -- and at the same time also decided to reverse -- a disclosure order issued in a case involving mailing lists and the applicability of Exemption 6.

On February 18, the Supreme Court acted on the Solicitor General's petition for review of the Ninth Circuit Court of Appeals' decision in Oregon Natural Desert Ass'n v. Bibles, 83 F.3d 1168 (9th Cir. 1996), cert. granted & summarily rev'd, 117 S. Ct. 795 (1997), by simultaneously granting the Solicitor General's certiorari petition and reversing the Ninth Circuit's decision without holding an oral argument in the case.

In a per curiam opinion that simply applied its previous Exemption 6 and Exemption 7(C) holdings in Department of Defense v. FLRA, 510 U.S. 587 (1994), and Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Supreme Court overturned the district and appellate court rulings below that had ordered disclosure of the names and addresses of individuals on an agency mailing list.

The Oregon Natural Desert Ass'n Case

The case arose when the Oregon Natural Desert Association, a nonprofit public interest group interested in desert-preservation issues, filed a FOIA request with the Department of the Interior's Bureau of Land Management for the mailing list used for distribution of the BLM News, a newsletter that provides information about BLM's plans and activities for such areas as the Oregon desert.

The Interior Department concluded that Exemption 6 of the FOIA protected the names and addresses of the private individuals on this list, so it withheld that information, while at the same time segregating and disclosing the names and addresses of all listed organizations. After the requester brought suit and prevailed at the district court level, the case was appealed to the Ninth Circuit Court of Appeals.

In May 1996, a divided panel of the Ninth Circuit found "a substantial public interest in knowing to whom the government is directing information, or as [the requester] characterizes it 'propaganda,' so that those persons may receive information from other sources that do not share the BLM's self-interest in presenting government activities in the most favorable light." 83 F.3d at 1171. It ruled, by a 2-1 panel vote, that this "public interest" outweighed the relatively small invasion of personal privacy that is involved in disclosure of such a mailing list. Id. at 1172.

The dissenting judge, Circuit Court Judge Ferdinand F. Fernandez, accused the panel majority of "practically ignor[ing] the FOIA teachings of the United States Supreme Court." Id. Under those teachings, he observed, the weight of the "public interest" identified by the panel majority would be "nonexistent." Id. at 1173. See also FOIA Update, Spring 1996, at 2.

"Public Interest" Analysis

In its decision reversing the Ninth Circuit's ruling, the Supreme Court essentially confirmed what Circuit Court Judge Fernandez had observed in his dissenting opinion. The Supreme Court first pointed to the Ninth Circuit's novel "public interest" findings, which it pointedly noted were "the sum total of the Court of Appeals' analysis of the public interest in disclosure." 117 S. Ct. at 795. It then observed that it was "clear that the [Ninth Circuit's] judgment rested on a perceived public interest in 'providing [persons on the BLM's mailing list] with additional information," an incorrect one to consider. Id.

Use of such a "public interest" in the Exemption 6 balancing process, the Supreme Court flatly declared, "is inconsistent with our opinion in Department of Defense v. FLRA . . . which said that 'the only relevant public interest in the FOIA balancing analysis' is 'the extent to which disclosure of the information sought would "she[d] light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to."'" Id. (quoting both Department of Defense v. FLRA and Reporters Committee). Accordingly, it summarily reversed.

This is the first Freedom of Information Act case the Supreme Court has decided in three years, since it decided the Department of Defense v. FLRA case in 1994. See FOIA Update, Spring 1994, at 2. At this time, there are no pending FOIA cases that appear to be strong candidates for possible Supreme Court consideration in the near future.


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