FOIA Update: Supreme Court Hears Reporters Committee

The United States Supreme Court heard oral argument in early December in one of the most significant and potentially far-reaching Freedom of Information Act cases to be presented to it in recent years, Department of Justice v. Reporters Committee for Freedom of the Press, No. 87-1379.

The Reporters Committee case involves FOIA requests in which several news media requesters have sought access to any criminal history records (sometimes called "rap sheets") maintained by the FBI on four brothers alleged to have connections to organized crime and political corruption in Pennsylvania. Such "rap sheets" would show any state or local arrests or convictions of them extending back over a period of more than 30 years.

Following its standard practices for the protection of "rap sheet" information, the FBI denied the requests, without confirming the existence of any responsive records, on the basis of two separate FOIA exemptions. First, it relied upon a special "rap sheet" statute, 28 U.S.C. § 534, that had been held to protect all such information categorically under Exemption 3. It also denied the requests on personal privacy grounds under Exemption 7(C), based upon its longstanding policy of not disclosing any records of local criminal arrests -- or even of convictions extending back many years -- in the absence of an overriding public interest in their disclosure.

At the district court level, both grounds for nondisclosure were upheld. On appeal, however, the D.C. Circuit Court of Appeals firmly rejected the special "rap sheet" statute as insufficiently specific to qualify under Exemption 3, as amended, and that basis for nondisclosure dropped out of the case. Reporters Committee for Freedom of the Press v. Department of Justice, 816 F.2d 730, 735-36 (D.C. Cir. 1987).

The case then turned on the remaining issue of personal privacy protection under Exemption 7(C). In its consideration of that issue as well, the D.C. Circuit was extremely unsympathetic to the FBI's privacy position -- even going so far as to call into question the very "balancing" process by which personal privacy determinations traditionally have been made under the FOIA.

On the "personal privacy" side of the Exemption 7(C) balance, the D.C. Circuit gave very little weight to the sensitivity of "rap sheet" information. It found no more than a very slight privacy interest in either criminal arrest or conviction data where, under state law, such data had ever been made publicly available through the local criminal justice system. Even though such data may have been available only at an obscure location many years ago, it declared, "any privacy interest in [it] seems insignificant." 816 F.2d at 740.

On the "public interest" side of the balance, the D.C. Circuit issued two successive opinions in which it radically departed from existing FOIA case law and sought to alter the basic process by which all FOIA privacy-protection decisions are made. Over a strong dissent, it stated that agencies should no longer consider either the requester's disclosure purpose or even the contents of the records in making such determinations. Rather, it cryptically concluded, the "public interest" to be balanced under the FOIA's privacy exemptions is only the "general disclosure" interests embodied in the Act itself. 831 F.2d at 1126.

Because this novel conception of "public interest" balancing under the FOIA left agencies with no clear idea of how it might be implemented, and in anticipation of receiving further clarifying guidance on the issue from the Supreme Court, the Department of Justice formally advised agencies not to follow Reporters Committee pending Supreme Court review. See FOIA Update, Spring 1988, at 3-5 ("OIP Guidance:  Privacy Protection in the Wake of the Reporters Committee Decisions").

The Reporters Committee case thus reached the Supreme Court as an exceptionally complex and important FOIA case, presenting fundamental issues about personal privacy protection under the FOIA that are of widespread concern.

At the oral argument held before the Court on December 7, as the justices struggled with the complexities of the case, much of the focus was on the initial question of the extent to which personal privacy interests can be said to exist in "rap sheet" information.

Several of the justices drew distinctions between records of arrests and records of actual convictions, suggesting that the Court might delineate between the two in determining the privacy interests in "rap sheets" that can be considered for protection under Exemption 7(C). A ruling by the Court that conviction data can never be withheld would overturn the FBI's practice of considering conviction data for possible Exemption 7(C) protection after the passage of many years.

As for the far-reaching issues presented under the "public interest" part of the FOIA's privacy balancing mechanism, the Court's questioning at oral argument provided little indication of just how those issues may be resolved. While most of the justices seemed sympathetic to the analytical and practical difficulties posed by the D.C. Circuit's novel "public interest" approach, no clear solution to those difficulties emerged.

So as federal agencies await the Supreme Court's decision in Reporters Committee -- which should be handed down before the end of the Court's current Term in June -- they can only hope that the opinion issued by the Court will contain much-needed guidance on the entire process by which FOIA privacy-protection decisions are made.

Following closely on the heels of Reporters Committee are two other FOIA cases that have been presented to the Supreme Court for its consideration. Both cases, like Reporters Committee, involve adverse appellate court decisions that the Government is asking the Supreme Court to review and overturn.

In Tax Analysts v. Department of Justice, 845 F.2d 1060 (D.C. Cir. 1988), reh'g en banc denied, No. 86-5625 (D.C. Cir. July 15, 1988), petition for cert. filed, 57 U.S.L.W. 3378 (U.S. Nov. 9, 1988) (No. 88-782), the Government seeks reversal of a highly controversial FOIA decision issued by the D.C. Circuit regarding court records maintained by a federal agency. The D.C. Circuit ruled in Tax Analysts that the FOIA requires the Department of Justice to provide the requester, a commercial tax reporting service, with access to opinions received by the Department's Tax Division from tax cases it has litigated in federal courts nationwide. (See FOIA Update, Spring 1988, at 7.) If allowed to stand, this decision might be applied to any such records at any federal agency and thus threatens to place enormous new administrative burdens on the executive branch.

The second case presented to the Supreme Court on a certiorari petition, John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir.), reh'g en banc denied, No. 88-6098 (2d Cir. Nov. 8, 1988), petition for cert. filed, 57 U.S.L.W. 3472 (U.S. Dec. 28, 1988) (No. 88-1083), involves an important question about the threshold requirement of Exemption 7. In the John Doe Corp. case (so named because the plaintiff defense contractor received special court permission to sue anonymously), the Second Circuit ruled that sensitive records of an ongoing criminal investigation cannot be protected under Exemption 7(A) merely because they originally were created for routine audit purposes. (See FOIA Update, Summer 1988, at 15.)

A number of other potential candidates for Supreme Court review are presently pending at the highest court of appeals level, awaiting possible en banc (full court) reversal of appeals panel decisions already issued.

One such case, Irons v. FBI, 851 F.2d 532 (1st Cir. 1988), vacated & reh'g en banc ordered, No. 87-1516 (1st Cir. Sept. 20, 1988), raises questions about the extent to which Exemption 7(D) protection applies once a confidential source testifies at trial. (See FOIA Update, Summer 1988, at 15.) This case was reargued before the full First Circuit Court of Appeals on December 7.

A second adverse decision to be reconsidered en banc is New York Times Co. v. NASA, 852 F.2d 602 (D.C. Cir. 1988), reh'g en banc ordered, No. 87-5244 (D.C. Cir. Oct. 5, 1988), in which a divided panel of the D.C. Circuit refused to consider Exemption 6 protection for the audio tape of the space shuttle Challenger tragedy because, it said, the voices on the tape were not "about" a person. (See FOIA Update, Summer 1988, at 15.) It is scheduled for en banc reargument on March 8.

Also pending possible en banc review by the full D.C. Circuit is the case of Washington Post Co. v. Department of State, 840 F.2d 26 (D.C. Cir. 1988), another extremely sensitive Exemption 6 case. (See FOIA Update, Winter 1988, at 3.) The Government's petition for en banc rehearing in Washington Post has been pending since March 21, most likely because the D.C. Circuit, too, is awaiting the Supreme Court's decision in Reporters Committee. (See FOIA Update, Spring 1988, at 2.)

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