FOIA Update: Supreme Court Update

As the Supreme Court approached the end of its current Term, it twice reversed the U.S.Court of Appeals for the District of Columbia Circuit, giving the Government two major victories in cases raising similar threshold issues under Exemption 6 and Exemption 7 of the FOIA.

In Federal Bureau of Inivestigation v. Abramson, __ S. Ct. ____, 50 U.S.L.W. 4530, 3 GDS ¶ 82,316 (U.S., May 2, 1982), the Court held that information initially compiled for law enforcement purposes does not lose its Exemption 7 character when later incorporated or summarized in a document prepared for other than a law enforcement purpose. The documents at issue contained sensitive information originally compiled by the FBI for law enforcement purposes before its recompilation for other purposes.

Justice Byron White, writing for a five-member majority found that the overall objectives of FOIA would be frustrated if Exemption 7 information were held to lose its status in such derivative documents.

Citing FOIA Update among other sources, Justice White noted the difficulty that law enforcement agencies encounter with reluctant informants concerned about the Government's ability to protect their identities. Accordingly, because the D.C. Circuit's rigid interpretation had "created a substantial prospect" that information initially gathered for law enforcement purposes would ultimately be disclosed, the majority refused to accept it as a proper interpretation of Congressional intent and ruled in favor nondisclosure. Four justices, led by Justice Sandra O'Connor, dissented with respect to the majority's findings as Congressional intent.

In United States Department of State v. Washington Post, 102 S. Ct. 1957 (May 17, 1982), the Supreme Court unanimously ruled in the Government's favor, giving a broad interpretation to the "similar files" threshold of Exemption 6, as it reversed the most recent of a series of decisions by the U.S. Court of Appeals for the District of Columbia Circuit that had narrowly construed that standard. The case involved the existence of documents possibly revealing whether two Iranian nationals living in Iran had ever become U.S. citizens.

The State Department denied the request on Exemption 6 grounds, arguing that any release of such information would endanger the lives of the two men, but the D.C. Circuit held that information regarding citizenship is less "intimate" than that normally found in personnel or medical files and therefore could not be withheld as a "similar file" under Exemption 6.

Justice William Rehnquist, however, writing for the Court, examined the legislative history and found that the phrase "similar files" was intended to have a broad meaning. He also reasoned that since personnel and medical files properly withheld under Exemption 6 may contain personal yet non-intimate data about an individual -- such as place of birth, dates of birth and marriage and employment history -- it would be anomalous if this same information could not be exempt from disclosure merely because it were not contained in a personnel or medical file.

Therefore, he held, so long as the information sought relates to a particular identifiable individual, it qualifies as "similar file" material. Concluding that the citizenship information sought by the plaintiff did satisfy this threshold requirement, the Court remanded the matter for a determination as to whether "release of the information would constitute a clearly unwarranted invasion of personal privacy."

This brings to three the number of FOIA cases decided by the Supreme Court during its 1981 Term. Earlier this year, the Court found that the Census Act qualifies as an Exemption 3 statute, in Baldrige v. Shapiro, 102 S. Ct. 1103, 71 L. Ed. 2d 199 (February 24, 1982).

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