UNITED STATES DEPARTMENT OF STATE, PETITIONER V. MICHAEL D. RAY, ET
AL.

   No. 90-747

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Reply Brief For The Petitioner

   Respondents' brief in opposition is long on vituperation, short on
analysis, and devoid of any answer to our submission that the issues
presented are of substantial importance to the sound administration of
the Freedom of Information Act (FOIA) and to the privacy and
national-security interests that FOIA protects.  On the Exemption 6
issues, the ruling below conflicts with Department of Justice v.
Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), and
with decisions of other courts of appeals.  And in holding that the
government was too late in invoking Exemptions 1 and 7, the court of
appeals declined to follow the approach of the D.C. Circuit's en banc
decision in Jordan v. Department of Justice, 591 F.2d 753 (1978).  The
Court should grant review to resolve these conflicts and differences
in approach;  to prevent injury to important privacy and
national-security interests;  and to announce concrete principles to
guide decisionmaking in these two areas of FOIA litigation, replacing
the ad hoc approach and unchanneled discretion exemplified by the
decision below.

   1. Respondents pervasive allegations about State Department
"propaganda" and "cover-ups" call only for a brief reply.  Respondents
requested summaries of interviews of Haitian nationals who had been
returned to Haiti after attempting to enter the United States
illegally.  Far from "covering-up" the summaries, the State Department
released them, deleting only the names or other information that would
identify the interviewees.  Those deletions conformed closely to
Department of the Air Force v. Rose, 425 U.S. 352 (1976), where the
Air Force submitted the summaries of disciplinary actions for in
camera review, but deleted information that might identify the cadets
involved -- a practice this Court described in Reporters Committee as
"unquestionably appropriate." 489 U.S. at 773.  The reasons for the
deletions are even stronger here than in Rose.  Here, the interviewees
received a pledge of confidentiality;  in addition, the deletions
further the national interest in protecting human rights by protecting
sources of information on that subject.

   Respondents nevertheless accuse (Br. in Opp. 3) the State
Department of disseminating "propaganda" that "suggests that political
repression in Haiti is non-existent." See also Br. in Opp. 12-13, 14,
17, 21, 25.  The State Department has suggested no such thing.  To the
contrary, it has repeatedly documented political repression and
violence in Haiti.  /1/ It is precisely because of the history of
repression in Haiti that the State Department interviewed returnees to
ascertain whether they had been persecuted in retaliation for their
attempted departure.  The ability of the United States to gather such
information, which furthers its ability to monitor and promote human
rights in other countries, would be greatly undermined if the
government were unable to honor a pledge of confidentiality and
protect its sources of information.

   Respondents even go so far as to question (Br. in Opp. 6, 20)
whether the interviews "were, in fact, ever conducted," or whether the
State Department instead "concocted" them to "justify its foreign
policy goals" and "circumvent domestic and international refugee law."
These wildly unfounded accusations are supported by not a scintilla of
evidence suggesting that the interviews never occurred or that the
summaries are false;  and State Department officials in fact submitted
formal declarations in this case, which the courts below obviously
credited, explaining that the documents contain summaries of
interviews that were conducted.  See Pet. 2-7.

   2. We have explained (Pet. 13-18) that the court of appeals
undervalued the privacy interests protected by Exemption 6 in four
specific respects.  Undaunted, respondents assert (Br. in Opp. 17)
that "no facts have been shown or alleged that would lead any
reasonable person to conclude that anyone's privacy would be harmed by
release of the Haitians' names and addresses." Briefly, our points are
these:

   First, the summaries contain personal details about many
interviewees (marital and employment status, children, living
conditions, and efforts to enter the United States) that, under the
judgment below, would now be publicly linked with named individuals.
As we have noted (Pet. 16), we are aware of no other case in which a
court has ordered disclosure of such information.  Respondents do not
contend otherwise;  they simply ignore this serious invasion of
privacy.

   Second, disclosure of the Haitians' identities would publicly
identify them as persons who cooperated with the U.S. investigation.
Pet. 15-16.  Respondents do not deny that this invasion of privacy
will occur, but seek to minimize it under either of two possible views
of conditions in Haiti.

   On the one hand, respondents argue (Br. in Opp. 17) that if they
are correct that "political bloodshed in Haiti is a reality," the
interviewees "would have no concern for 'privacy interests,'" but
instead "would want their status revealed in the hope that they could
return to the United States." Respondents' notion that the Haitian
interviewees as a class have "no concern" for privacy interests is
speculative, disrespectful of the individuals involved, inconsistent
with representations in the State Department declarations about the
need for confidentiality, and at odds with the assumptions underlying
Exemption 6.  It also cannot be reconciled with respondents' basic
position in this case:  if the returnees have been persecuted, as
respondents insist, they presumably would not want their cooperation
with the United States to be made public, for fear of further
persecution.  Accordingly, in asserting that the returnees would
nevertheless want their identities disclosed, respondents are arguing
not that there are no privacy interests at stake, but rather that
those interests are outweighed by the returnees' own need to have the
public know who they are.  That, however, is an assessment to be made
by the individual interviewees, who of course may publicly identify
themselves at any time.

   On the other hand, respondents claim (Br. in Opp. 17-18) that if
the interviewees "live in a land where political repression is
non-existent" -- a view respondents attribute to the State Department
-- then "(t)hey certainly would not claim that their 'privacy' had
been invaded," since they would not expect retaliation.  This
reasoning is also flawed.  The State Department does not take the
position that there is no political repression in Haiti (see page 2,
supra);  and although the interviews did not turn up instances of
persecution specifically in response to attempted migration to the
United States, the possibility of retaliation (or fear of retaliation)
for co-operating with a U.S. investigation of that subject cannot be
ruled out.  Interviewees might also suffer embarrassment or hostility
among family, friends, and fellow nationals.  See Pet. 5-6, 15-16.
Respondents' contention that a person suffers no invasion of privacy
interests protected by Exemption 6 unless the information disclosed is
highly personal or negative was rejected by this Court in Department
of State v. Washington Post Co., 456 U.S. 595, 600-601 (1982), and by
the D.C. Circuit in National Ass'n of Retired Federal Employees
(NARFE) v. Horner, 879 F.2d 873, 875 (1989), cert. denied, 110 S. Ct.
1805 (1990), and FLRA v. Department of the Treasury, 884 F.2d 1446,
1451-1452 (1989), certs. denied, 110 S. Ct. 863 and 864 (1990).  See
also Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) (disclosure of
favorable performance evaluation constitutes unwarranted invasion of
privacy).

   Third, the court of appeals "candidly acknowledge(d)" that
respondents intent to track down and question the interviewees in
Haiti, Pet. App. 7a, which would invade the distinct privacy interest
encompassed by "the right to be let alone." Olmstead v. United States,
277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).  The court of
appeals cited that prospect in concluding that "there are significant
privacy interests at stake here," Pet. App. 8a, and other courts of
appeals have reached a similar conclusion.  See Pet. 17 n.9.  Yet,
respondents do not even mention the point.

   Fourth, the privacy interests are greatly enhanced in this case by
the fact that the interviewees were assured that their cooperation
would be kept confidential.  Pet. 13-15.  /2/ Respondents attempt (Br.
in Opp. 19) to minimize this fact by quoting the observation in
Washington Post Co. v. HHS, 690 F.2d 252, 263 (D.C. Cir. 1982), that
"to allow the government to make documents exempt by the simple means
of promising confidentiality would subvert FOIA's disclosure mandate."
But respondents ignore the framework the D.C. Circuit prescribed for
taking such a promise into account under Exemption 6.  Washington Post
made clear that "a government pledge of confidentiality, made in good
faith and consistently honored, should generally be given weight on
the privacy side of the scale," because it enhances the expectation of
privacy.  Ibid.  And its holding was that "such a pledge should not be
given determinative weight where the public interest in disclosure is
high and the privacy interest in the information would otherwise be
low." Ibid.  It follows that in the converse situation presented here,
where the public interest in disclosure is not great (see pages 6-7,
infra) and the privacy interest in the information is independently
very high, the pledge should be given determinative weight.  Although
the court below cited Washington Post for the proposition that a
pledge of confidentiality does not "compel" withholding, Pet. App.
7a-8a, it declined to follow that decision's analytical framework.

   b. On the public interest side of the Exemption 6 balance,
respondents, like the court of appeals (Pet. App. 9a), do not dispute
our submission (Pet. 19, 20-21) that disclosure of the Haitians'
identities "would tell us nothing directly" about "the conduct of the
Department of (State)." Reporters Committee, 489 U.S. at 774 (first
emphasis added).  That should be the end of the matter.  The only
relevant public interest under Exemption 6 is that of enabling the
people to know "what their government is up to." Reporters Committee,
489 U.S. at 772-773 (Italics omitted).

   As we have explained (Pet. 20-22), the court of appeals' novel
derivative-use rationale for disclosure -- that the requisite public
interest is present because respondents plan to question the
interviewees in order to assess the State Department's monitoring of
Haiti's human rights record -- is pure bootstrap.  If accepted, it
would eviscerate the protection afforded by Exemption 6.  It
apparently would, for example, require disclosure of a wide range of
personal information that heretofore has universally been regarded as
protected (such as the cadets' names in Rose) whenever the requester
asserts that he plans to use the information to investigate the
governmental program -- or, as in this case, whenever the requester
alleges that documents already released to the public in redacted form
are false.  Respondents do not deny that this is the import of the
decision below or refute our submission that the court of appeals'
reasoning is incompatible with Rose and Reporters Committee.
Respondents are content to rest once again (Br. in Opp. 18) on the
court of appeals' erroneous finding of a public interest in their
desire "to learn whether our government is honest to the public about
Haiti's treatment of returnees." See Br. in Opp. 25.  That will not
do.

   c. Review is warranted because, as we have explained (Pet. 22-24),
the Exemption 6 holding below conflicts not only with this Court's
decisions in Rose and Reporters Committee, but also with decisions of
other courts of appeals.  Respondents attempt (Br. in Opp. 19-20) to
distinguish the D.C. Circuit's decision in NARFE, which sustained the
withholding of the names and addresses of retired federal employees,
on the grounds that disclosure would have led to commercial
solicitations, and that the D.C. Circuit found no public interest in
disclosure while here the Eleventh Circuit found a "strong public
interest." Respondents ignore the actual holdings in NARFE.

   The D.C. Circuit first held that release of the names and addresses
would invade the individuals' privacy in two ways:  it would disclose
the defining characteristics of the people on the list, and it would
lead, through solicitations, to interference with "the subjects'
reasonable expectations of undisturbed enjoyment in the solitude and
seclusion of their own homes." 879 F.2d at 876.  Similarly here,
disclosure would link the interviewees to the defining characteristics
of the summaries (cooperation with a confidential U.S. investigation),
and respondents' plans to track down and interrogate the interviewees
would interfere with their quiet enjoyment of home and hearth.  On the
other side of the balance, the D.C. Circuit held that there was no
public interest under Exemption 6 in releasing the names to enable
NARFE to further its lobbying efforts or inform the public about where
annuity payments are going, because neither consequence would tell the
public directly what the government is up to.  Id. at 879.  As the
court below conceded, release of the Haitians' names likewise would
tell the public nothing directly about what the State Department is up
to.  Pet. App. 9a.  Accordingly, contrary to respondents' contention,
if the court of appeals in this case had followed NARFE, it would have
been compelled to sustain the withholding.

   Respondents also dispute our submission (Pet. 17-18, 23) that the
decision below conflicts with Heights Community Congress v. Veterans
Administration, 732 F.2d 526, 530 (6th Cir.), cert. denied, 469 U.S.
1034 (1984).  The central holding of Heights Community Congress is
that disclosure of names and addresses to permit the requester to
conduct face-to-face interviews is antithetical to the privacy
interests protected by Exemption 6.  732 F.2d at 530.  That holding
cannot be reconciled with the decision below.  Respondents assert tha
the Sixth Circuit found that the requested information "was available
from 'other less controversial avenues to obtain the desired
information.'" Br. in Opp. 20 (quoting 732 F.2d at 530).  To be sure,
the Sixth Circuit did observe:  "Certainly nothing prevents (the
requester) from publicly advertising its investigation and requesting
any VA loan recipient who desires to cooperate * * * to come forward
if he so elects, or pursuing other less controversial avenues to
obtain the desired information." Ibid.  But the court did not say in
the last phrase, on which respondents rely, that there were such
alternatives (much less rest its holding on that premise);  it said
only that the requester was free to pursue whatever alternatives there
were.  In any event, like the requester in Heights Community Congress,
respondents are not precluded from "publicly advertising (their)
investigation" and requesting any Haitian interviewee to cooperate "if
he so elects." Thus, respondents' attempt to explain away the square
conflict with Heights Community Congress is unavailing.

   3. The court of appeals also erred in refusing to entertain, as
untimely, the State Department's submission that the identities of the
Haitian nationals are protected by Exemptions 1 and 7.  The D.C.
Circuit in Jordan identified relevant factors in deciding whether an
appellate court may reach the merits of a FOIA claim that (unlike
those at issue here) was never even raised in the district court:
whether the failure to invoke the exemption was due to "pure mistake,"
whether the "value of the material" is "obviously high, e.g.,
confidential information compromising the nation's foreign relations
or national security," and whether it appears "highly likely" that the
material is covered by the exemption.  591 F.2d at 780.

   Respondents do not seriously dispute that the last two of the
Jordan factors are satisfied (see Pet. 25-26), since they do not deny
that disclosure of the identities of foreign nationals who furnish
information about their government on a confidential basis will cause
valuable sources of information to dry up, or that it is highly likely
that the identities of the interviewees therefore are covered by the
protection for confidential sources under Exemption 1 (incorporating
Exec. Order No. 12,356, Sections 1.3(a)(5) and (9), 1.3(b)) and
Exemption 7(D).  /3/ Pet. 27.  Respondents do assert (Br. in Opp. 23)
that the government made a "deliberate tactical choice" to wait to
classify the documents until after the district court rejected the
State Department's Exemption 6 claim.  Respondents do not and cannot
cite any support for this assertion, and the record refutes it.  As we
have explained (Pet. 5-6, 26, 28), State Department personnel who
first reviewed the documents did not appreciate the broader
foreign-policy interests at stake.  However, the materials were
promptly classified when, after the district court rejected the State
Department's Exemption 6 claim, the impending disclosure was brought
to the attention of a high-level State Department official, who
recognized the adverse impact on the Nation's foreign policy.  Thus,
the uncontradicted record establishes that the State Department's
failure to classify and invoke Exemption 1 at an earlier time resulted
from a "pure mistake." /4/ The court of appeals' refusal to entertain
the government's Exemption 1 and 7 claims therefore warrants review
along with the Exemption 6 issues in this case.

   For the foregoing reasons and those stated in the petition, we
respectfully submit that the petition for a writ of certiorari should
be granted.

   KENNETH W. STARR

      Solicitor General

   FEBRUARY 1991

   /1/ These practices are documented in the State Department's annual
Country Reports on Human Rights Practices, which are published as
Joint Committee Prints by the Senate Committee on Foreign Relations
and the House Committee on Foreign Affairs.  See the Reports for the
years 1985 (at 571-581), 1986 (at 533-540), 1987 (at 510-519), 1988
(at 598-607), and 1989 (at 620-627).

   /2/ Respondents question (Br. in Opp. 18, 19, 21 & n.20) whether
there was any such understanding.  As they concede (Br. in Opp. 21
n.20), however, the declarations of two State Department officials
represented that there was (see Pet. 3, 5), and both courts below
concluded that the interviewees had been "promised" confidentiality.
Pet. App. 7a, 28a.

   /3/ Although respondents do not mount a particularized challenge to
the facial validity of the classification, they allege (Br. in Opp.
13-16) that the State Department classified the names of the
interviewees for an improper purpose -- apparently, in their view,to
cover up evidence of political persecution in Haiti.  As we have
explained (see pages 2-3, supra), however, there is no support for
that allegation, and respondents cite none.  An invocation of
Exemption 1 that is otherwise proper under Jordan should not be
rejected out of hand on the basis of such unsubstantiated allegations.

   /4/ Quoting selected portions of a colloquy during the district
court hearing on the government's motion to reconsider based on
Exemption 1, respondents contend (Br. in Opp. 8-9) that the Justice
Department attorney agreed that "there was no mistake in failing to
classify the documents" the first time around.  This contention is
disingenuous.  It is apparent from the colloquy as a whole that the
Justice Department attorney was merely assuring the district court
that the government was not accusing the court of having made a
mistake in failing to sustain the withholding under Exemption 1, since
the government had not previously relied on that Exemption.  4/12/89
Tr. 3-5.