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 The Solicitor General, On Behalf Of The United States Department Of State, Respectfully Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Eleventh Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statutory provision involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-24a) is reported at 908 F.2d 1549. The orders of the district court (App., infra, 25a-30a, 31a-33a) are reported at 725 F.Supp. 502 and 505. JURISDICTION The judgment of the court of appeals was entered on August 17, 1990, and a petition for rehearing was denied on October 12, 1990. App., infra, 34a-35a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Relevant provisions of the Freedom of Information Act, 5 U.S.C. 552, are reproduced at App., infra, 38a-39a. QUESTIONS PRESENTED In this case under the Freedom of Information Act (FOIa), 5 U.S.C. 552, respondents seek to obtain names and other information that would identify Haitian citizens who were interviewed, on a confidential basis, by State Department personnel in Haiti in the course of monitoring the Haitian Government's compliance with its agreement not to persecute persons returned to that country by the United States. The questions presented are: 1. Whether the names and other information identifying the individual Haitian citizens who consented to be interviewed by State Department personnel are protected against mandatory disclosure by FOIA Exemption 6, which applies to matters "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6). 2. Whether the district court erred in refusing to consider the merits of the State Department's submission that the names and other identifying information also are protected by FOIA Exemptions 1 (classified information) and 7(C) and 7(D) (law enforcement information), because the State Department did not classify the information and invoke Exemptions 1, 7(C) and 7(D) until after the district court had denied the Department's motion for summary judgment based on Exemption 6 and ordered it to disclose the identities of the interviewees. STATEMENT 1.a. Respondent Michael Ray, a lawyer, brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. 552, on his own behalf and on behalf of three Haitian nationals seeking political asylum in the United States. Second Amended Complaint Paragraphs 3, 4 (R1:36). /1/ Respondents had filed FOIA requests with the Department of State seeking records of investigatory trips to Haiti made by federal personnel. Id. Paragraph 41. The State Department released 25 documents, but deleted from 17 of those documents names and other information that would identify individual Haitians who had been interviewed by State Department personnel. The State Department initially withheld that information under Exemption 6, 5 U.S.C. 552(b)(6), which provides that the FOIA "does not apply to matters that are * * * personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." App., infra, 26a. The State Department filed a motion for summary judgment on the Exemption 6 claim, supported by the declaration of John Eaves, the Acting Deputy Director of the Office of Mandatory Review of the State Department's Classification and Declassification Center. R3:52, Exh. A. Paragraph 1. Mr. Eaves explained that the 17 documents are reports from Haiti of confidential interviews by State Department personnel of Haitian nationals who had been returned to Haiti following unsuccessful attempts to enter the United States without documentation. The interviews were conducted to determine whether the individuals had been mistreated by Haitian authorities upon their return. Id. Paragraphs 8, 10. Respondents alleged that they needed the information for use in ongoing deportation and asylum proceedings, in order to assist them in showing that they would be subject to persecution if returned to Haiti. App., infra, 3a-4a. Mr. Eaves explained that the State Department had released the substance of the reports in their entirety and that the names and other identifying information were withheld "to protect the privacy of Haitians who consented to interviews by Embassy officers" (Eaves Decl. Paragraph 8): While no evidence of harassment or other ill treatment of the returned Haitians was reported, those who were interviewed consented to the procedures with the understanding that their conversations with Embassy officers would be conducted under conditions of privacy and confidentiality. To disclose the identities of these individuals would not only betray their trust in our discretion, it would also subject them or their families to possible embarrassment in their social and community relationships. This would be a clearly unwarranted invasion of the privacy of the individuals concerned. b. On March 3, 1989, the district court issued a memorandum order on pending motions. That order, inter alia, rejected the State Department's submission that the identities of the interviewees were properly withheld under FOIA Exemption 6. App., infra, 25a-30a. The court noted that in determining whether disclosure would result in a clearly unwarranted invasion of personal privacy, it was required to "employ a balancing test, weighing an individual's right of privacy against the public right to disclosure of government information." Id. at 28a. Treating "(t)he promise of confidentiality by the State (Department)" as "only one factor to be considered," the court found the privacy interests at stake in this case to be "de minimis and little more than speculation." Id. at 29a. On the other side of the balance, the court found that "this country's immigration policy supports a finding that the public has a legitimate interest in the safe relocation of returned Haitians." Ibid. Without explaining how this supports public disclosure of information obtained on a confidential basis to assure a candid assessment of Haiti's conduct, the court concluded that the balance "tilts" in favor of public disclosure of the names and other information identifying the individual Haitians who had consented to be interviewed. Ibid. The court therefore ordered the State Department to release that information within 15 days, although it withheld entry of final judgment until after expiration of the 15-day period. Ibid. /2/ 2.a. After the district court ordered release of the names, the State Department immediately instituted a review of the sensitive nature of that information and the consequences of public disclosure. See page 26, infra. On March 17, 1989, the State Department moved for reconsideration, /3/ arguing that the identities of the Haitian nationals are protected not only by FOIA Exemption 6, but also by Exemptions 1, 7(C) and 7(D), 5 U.S.C. 552(b)(1), (7)(C) and 7(D). Those exemptions provide that FOIA does not apply, respectively, to matters that are properly classified pursuant to Executive Order of the President or to law enforcement information the release of which could reasonably be expected to constitute an unwarranted invasion of personal privacy or to disclose a confidential source. The motion for reconsideration was supported by the declaration of Richard H. Melton, the Deputy Assistant Secretary of State for Inter-American Affairs. R4:88. He stated that on September 23, 1981, the United States, pursuant to Executive Order of the President, had entered into an agreement with the Government of Haiti to reduce illegal migration of Haitians to the United States. Id. Paragraphs 3, 4; see Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (1981). He continued (Melton Decl. Paragraph 3): That agreement provided for various cooperative law enforcement measures, including the interdiction by U.S. Government authorities of Haitian flag vessels on the high seas, inquiries regarding the status of those on board, and the return of the vessels and persons aboard to Haiti if a violation of U.S. or Haitian law is discovered. The agreement included an undertaking by the Government of Haiti not to prosecute for illegal departure any of the returnees who are not traffickers. The U.S. Government stated its intention in the agreement not to return any Haitian migrants "whom the United States authorities determine to qualify for refugee status." /4/ Mr. Melton also explained why the interviews "were conducted with the clear understanding that they would be held confidential" (Melton Decl. Paragraph 7; see id. Paragraph 10): If Haitians had been aware that their names and interview statements could be made public and might be used in political asylum proceedings, either on behalf of or against fellow Haitians, the interviewees might have been far less candid in nature. Had the U.S. government not been able to assure confidentiality of the names of interviewees, the United States would have been severely handicapped in its ability to obtain the information necessary to assess the success of its agreement with Haiti and the interdiction program. More generally, Mr. Melton explained that without the "essential trust" that the United States will "protect the identity of sources of information, * * * (o)ther Haitians or third country nationals on whom the United States relies for candid and frank assessments of internal conditions would be reluctant to believe in a U.S. promise of confidentiality." Id., Paragraph 8. For this reason, he stated (id. Paragraph 9), the documents were being reviewed for classification pursuant to Executive Order No. 12,356, 47 Fed. Reg. 14,874 (1982). See id Section 1.1(c) (documents protected pending classification review). b. On March 27, 1989, the State Department informed the court in a supplemental memorandum that, following the review instituted by Deputy Assistant Secretary Melton, the identities of the Haitian nationals had been classified. R4:93. That memorandum was accompanied by the declaration of Pratt Byrd, the Acting Deputy Director of the Office of Mandatory Review in the State Department's Classification and Declassification Center. R4:95. Mr. Byrd explained that the interview reports are proper subjects of classification because they constitute information concerning "foreign relations or foreign activities of the United States" and "confidential source(s)," and that the names had been classified because their release "reasonably could be expected to cause damage to the national security of the United States." Id. Paragraph 8 (quoting Exec. Order No. 12,356, Sections 1.3(a)(5) and (9), 1.3(b)). In elaborating upon the foreign relations considerations supporting classification, Mr. Byrd explained that release of the identities of the Haitian nationals who cooperated with the United States would make other foreign nationals in similar circumstances reluctant to speak with U.S. Embassy officials, and he identified a number of adverse consequences that would follow. First, the most effective way of ensuring that foreign governments abide by their agreements not to persecute persons who are interdicted and returned by the United States would be undermined. Byrd Decl. Paragraph 11. Second, the United States monitors the treatment of persons who attempt to leave their country in order to assure humanitarian treatment of migrants and refugees, and "(o)ur inability to preserve confidentiality of sources who provide information on human rights conditions would jeopardize the government's ability to monitor human rights conditions under the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2151n, 2304)." Id. Paragraphs 12, 13. Third, a loss of confidentiality would undermine the usefulness of such interviews in enforcing United States laws, including Sections 207 and 208 of the Immigration and Nationality Act, 8 U.S.C. 1157 and 1158, which require the United States to assess claims or fears of persecution in connection with applications for political asylum and refugee admission. Byrd Decl. Paragraph 13. Finally, the overall credibility of the United States in maintaining confidentiality would be damaged by release of the names, thereby "impairing the government's ability to obtain information about conditions and events in foreign countries generally, and * * * inhibiting the government's ability to anticipate and evaluate accurately changes in the local political scene which may have international ramifications." Id. Paragraph 14. c. The district court chose not to address the merits of the State Department's submission. Instead, in a brief order, the court held that the State Department had waived its Exemption 1 and 7 claims by failing to raise them until after the court had ordered disclosure. App., infra, 31a-33a. 3.a. The court of appeals affirmed. App., infra, 1a-24a. In addressing the Exemption 6 issue, id. at 6a-13a, the court thought it "important to candidly acknowledge that it appears that (respondents) seek the redacted information so that they can contact directly the Haitians who were interviewed by American officials and question them about how they are treated by the Haitian government since attempting to flee to the United States." Id. at 7a. "In light of that fact," the court found it "difficult to characterize this invasion of the Haitian returnees' privacy to be no more than de minimis," as the district court had done. Ibid. The court also noted that "the returnees were promised confidentiality before they talked with U.S. government officials," a factor that, although it does not compel withholding, "adds weight to the privacy interests at stake." Id. at 7a. For these reasons, the court of appeals "beg(a)n the balancing process by acknowledging that there are significant privacy interests at stake here. Id. at 8a. Nevertheless, while regarding it as a "close question," the court held that disclosure was mandated, because it believed the significant privacy interests were outweighed by a legitimate public interest in disclosure. The court agreed with the State Department that respondents' desire to use the information in resisting deportation did not justify disclosure, because the goal of FOIA is "'to open agency action to the light of public scrutiny,'" not to further "private purposes." App., infra, 8a-9a (quoting Department of Air Force v. Rose, 425 U.S. 352, 361 (1976)). But the court noted that respondents "also seek the information in order to learn whether the United States government is adequately monitoring Haiti's compliance with its obligation not to persecute returnees and to learn whether our government is honest to the public about Haiti's treatment of returnees." App., infra, 9a. In particular, it noted that respondents "dispute the view expressed publicly by some government officials that Haiti is adhering to its promise not to punish returnees, and they seek information that will assist them in testing the accuracy of that information." Ibid. The court acknowledged that "the disclosure of the Haitians' names and addresses, in and of itself, will not tell (respondents) anything about Haiti's treatment of its returnees or the U.S. government's honesty about the matter." Ibid. But the court found it sufficient that release of the names "will give (respondents) a means to obtain 'public interest' information in that they can then locate the Haitian returnees and inquire about how they were treated after they were returned to Haiti." Ibid. The court rejected the government's contention that requiring disclosure in this case would be inconsistent with Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989). App., infra, 10a-12a. It observed that in Reporters Committee, this Court had concluded that disclosure of criminal history information about an individual in a "rap sheet" maintained by the Federal Bureau of Investigation would reveal little about the conduct of the government. The court of appeals believed this case to be different because respondents "seek information about individuals that will help them to scrutinize what our government is doing and saying regarding Haitians who unsuccessfully attempt to flee to this country." Id. at 11a-12a. b. The court of appeals also affirmed the district court's ruling that the State Department had waived its right to rely on Exemptions 1, 7(C) and 7(D) by failing to raise those arguments prior to the district court's rejection of its Exemption 6 claim. App., infra, 13a-15a. The court recited the government's representations that its failure to invoke Exemptions 1 and 7 was the result of pure mistake and that those claims "involve grave concerns of national security and foreign policy." Id. at 14a. And it recognized that under Jordan v. Department of Justice, 591 F.2d 753, 780 (D.C. Cir. 1978) (en banc), an appellate court may consider a claim of exemption that was not raised at all before the district court, if the omission was due to pure mistake, the value of the material is very high, and it appears highly likely that the exemption does apply. But the court declined to follow that approach. Without discussing the State Department's declarations that explained the national security reasons for the classification decision, the court simply observed that it found it "difficult to believe that the redacted information implicates compelling national security concerns" in light of the government's failure to raise those concerns during the two-year period that the case was pending in the district court. Ibid. /5/ REASONS FOR GRANTING THE PETITION In a highly sensitive setting involving the foreign relations of the United States, the court of appeals' decision seriously misconstrues Exemption 6 of the Freedom of Information Act, abrogates a clear governmental pledge of confidentiality, and conflicts with the analytical framework prescribed by Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989). The decision below greatly undervalues the substantial privacy interests at stake for the Haitian nationals whose names the court of appeals has ordered the State Department to make public: it eviscerates both the State Department's promise of confidentiality and the Haitians' expectations of privacy that rested on that promise; it exposes the Haitians to the stigma of public identification as persons who cooperated with U.S. officials; it orders the release of unredacted copies of interview summaries that reveal much private information about the cooperating Haitians; and it expressly contemplates (indeed applauds) the prospect that respondents will track down the individual Haitians and challenge the veracity of what they said (or were reported to have said) about their own government. Each of these invasions of privacy is unprecedented in FOIA caselaw and is alone sufficient to preclude disclosure here. The fact that the court of appeals nevertheless ordered public disclosure of the Haitians' names in the face of the combined force of these privacy interests demonstrates the degree to which its holding departs from the central purposes of Exemption 6. The court countenanced these invasions of privacy by adopting a view of the countervailing "public interest" in disclosure that cannot be reconciled with the text or purposes of FOIA or with this Court's decision in Reporters Committee. The court of appeals did not find respondents entitled to obtain the names of the Haitian nationals based on the intrinsic informational value of those records, because, as the court acknowledged, the names reveal nothing about the operation of the government. Rather, it justified disclosure on the basis of respondents' plans to use those names as leads in their own investigation of conditions in Haiti, which they believed might in turn shed light on the State Department's performance of its responsibilities with respect to refugees. Under this derivative-use rationale, virtually any private information in government files -- for example, the names deleted from the disciplinary summaries in Department of Air Force v. Rose, 425 U.S. 352 (1976), or the rap sheet in Reporters Committee -- might be subject to disclosure to anyone who represents that he or she needs the information to investigate the particular government program. This vision of FOIA, and of Exemption 6, is inconsistent with the teaching of Reporters Committee that information is protected against mandatory disclosure if it would, in itself, "tell us nothing directly about" the conduct of government. 109 S. Ct. at 1482 (emphasis added). These rulings below conflict with decisions of other courts of appeals and threaten to eviscerate FOIA's protections for personal privacy. Review by this Court therefore is warranted. The courts below also erred in refusing to entertain the State Department's submission that the identities of the Haitian nationals are protected by Exemptions 1 and 7 because those claims were not raised at an earlier stage in the district court proceedings. As a result, the judgment below requires the disclosure of sensitive information that has been classified by the State Department in the interest of national security and jeopardizes efforts by the United States to assure humanitarian treatment of refugees and respect for human rights. Review of this issue is warranted both to prevent the substantial public and private injuries that will be sustained if the classified information at issue here cannot be protected, and, more generally, to prescribe standards for addressing the government's invocation of exemptions in similar circumstances. A. Although FOIA enacted a "broad philosophy of 'freedom of information,'" Congress found it "'necessary to protect certain equally important rights of privacy with respect to certain information in government files.'" Department of Air Force v. Rose, 425 U.S. at 372-373 n.9 (quoting S. Rep. No. 813, 89th Cong., 2d Sess. 3 (1965)). FOIA addresses these privacy concerns most broadly through Exemption 6, which provides that the Act "does not apply" to information "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6). This standard "'exclude(es) those kinds of files the disclosure of which might harm the individual,'" and, more generally, "'enunciates a policy that will involve a balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information.'" Rose, 425 U.S. at 372 (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966), and S. Rep. No. 813, supra, at 9); Reporters Committee, 109 S. Ct. at 1483. /6/ In light of FOIA's special respect for personal privacy, "it should come as no surprise that in none of (its) cases construing the FOIA (has the Court) found it appropriate to order a Government agency to honor a FOIA request for information about a particular private citizen." Reporters Committee, 109 S. Ct. at 1482. The court of appeals' decision in this case, however, does just that, seriously eroding the important protection afforded to personal privacy by Exemption 6 and substantially departing from the principles announced by this Court in Reporters Committee and other cases, and followed by other courts of appeals. The court's errors affect both the privacy and public-interest sides of the balance. 1. Although the court of appeals recognized that there are "significant privacy interests at stake" in this case, App., infra, 8a, it undervalued those interests in every critical respect. The cumulative nature of the court's errors suggests the need for guidance from this Court in formulating a structured rather than an ad hoc approach to identifying and assessing the relevant privacy considerations. a. It is important at the outset to emphasize the context in which the particular privacy interests arise. In this case, as the court of appeals pointed out, the Haitian returnees "were promised confidentiality before they talked with U.S. government officials." App., infra, 7a. The court acknowledged that such a promise "adds weight to the privacy interests at stake here," but it did not believe that withholding was "compel(led)" on this ground. Id. at 7a-8a. Having said this much, the court gave no indication that it then took this factor into account in any meaningful way, even though the consequence of its ruling is that the United States will not be able to keep its word. In fact, established principles furnish guidance on the relevance of such a promise. Assurances of confidentiality heighten an individual's expectation of privacy; in consequence, the release of information provided under such a pledge "involves a greater invasion of privacy than release of information provided without such a pledge." Washington Post Co. v. HHS, 690 F.2d 252, 263 (D.C. Cir. 1982). For this reason, "a government pledge of confidentiality, made in good faith and consistently honored, should generally be given weight on the privacy side of the scale in accord with its effect on expectations of privacy." Ibid. In Washington Post and Robles v. EPA, 484 F.2d 843, 846 (4th Cir. 1973), which were cited by the court of appeals for the proposition that a promise of confidentiality is not controlling (App., infra, 7a-8a), the pledge of confidentiality was limited and uneven, and there was correspondingly less reason to believe that it had led to a heightened expectation of privacy. In this case, by contrast, the interviews "were conducted with the clear understanding that they would be held confidential," and the uncontradicted record establishes that this understanding was important in causing the Haitian nationals to confide in U.S. officials. Melton Decl. Paragraphs 7-8, 10, 12; Byrd Decl. Paragraphs 10-12, 15. Thus, contrary to the court of appeals' belief, the test announced in the D.C. Circuit's Washington Post decision strongly supports withholding here. Reporters Committee likewise supports the conclusion that expectations of privacy induced by this sort of understanding should be respected. The Court stressed in Reporters Committee that an important aspect of the privacy protected by FOIA is "the individual's control of information concerning his or her person," because "information may be classified as 'private' if it is 'intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.'" 109 S. Ct. at 1476 (quoting Webster's Third New International Dictionary 1804 (1976)). Where an individual voluntarily furnishes personal information to the government in reliance on a promise that it will be "restricted" to government use and not be "freely available to the public," a due regard for the individual's right not to have given that information in the first place should ordinarily allow the government to honor its promise. "Great nations, like great men, should keep their word." Heckler v. Mathews, 465 U.S. 728, 748 (1984); cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1010-1012 (1984). /7/ b. The privacy interests are enhanced in this case because of the nature of the information to which the expectation of privacy attaches. In the first place, disclosure of the individual Haitians' names would immediately and publicly identify them as persons who cooperated with the United States Government on a confidential basis by furnishing it with information about the Haitian Government and their treatment by it. As the Eaves Declaration points out (at Paragraph 8), this "would * * * subject them or their families to possible embarrassment in their social and community relationships." Mr. Eaves' guarded diplomatic understatement cannot obsecure the basic point: cooperation with United States officials by foreigners is not always greeted with equanimity by the foreigners' government or countrymen -- particularly when the cooperation concerns the conduct of that government. Compare Department of State v. Washington Post Co., 456 U.S. 595, 597 n.2 (1982) (quoting State Department affidavit) (certain Iranian leaders "have been strongly criticized in the press for their alleged ties to the United States," and "(a)ny individual in Iran * * * having American connections is looked upon with mistrust"). Furthermore, the redacted versions of the interview reports that have already been released to respondents contain private information about many of the persons who were interviewed: e.g., marital status and number of children, employment status or history, living conditions, the circumstances of past attempts to enter the United States, or the receipt of Red Cross aid upon return. /8/ If unredacted versions of the reports now must be made available under FOIA, as the courts below have ordered, the reports would reveal much information about the subjects of the reports that would unquestionably constitute a "clearly unwarranted" invasion of privacy under this Court's cases. Compare Rose, 425 U.S. at 375-377; Washington Post, 456 U.S. at 600-601; Reporters Committee, 109 S. Ct. at 1476-1480. In no FOIA case of which we are aware has a requester obtained personal information of this sort. c. The decision below will also result in the invasion of an important aspect of privacy in addition to the right to control dissemination of information about one's self -- namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). As the court of appeals recognized, respondents seek to identify the Haitian citizens who were interviewed on a confidential basis for the specific purpose of enabling respondents to contact those individuals personally and question them about how they have been treated by the Haitian Government since their return. App., infra, 7a. In several recent decisions involving FOIA requests for lists of names and addresses of present or former federal employees, the D.C. Circuit has found a significant invasion of personal privacy solely by virtue of the potential that disclosure would lead to "'an unwanted barrage of mailings and personal solicitations'" of a commercial or charitable nature. /9/ The invasion of privacy in this case would be far more serious, because respondents intend to conduct in-depth interviews of the individual Haitians on subjects they heretofore have discussed with representatives from the United States only in confidence, and to challenge the veracity of what those individuals previously said (or were reported to have said). Cf. Rowan v. Post Office Dept., 397 U.S. 728, 737 (1970). The court of appeals failed to appreciate the magnitude of this further invasion of privacy, which, contrary to that court's holding, is sufficient in itself to preclude disclosure of the names respondents seek. See Heights Community Congress v. Veterans Administration, 732 F.2d 526 (6th Cir.), cert. denied, 469 U.S. 1034 (1984), discussed at page 23, infra. Combined with the other invasions of privacy discussed above, the interests on the privacy side of the balance are compelling. 2.a. The court of appeals plainly erred in its assessment of the other side of the balance as well. Reporters Committee makes clear that any public interest supporting disclosure in this setting must rest on "the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny,' * * * rather than on the particular purpose for which the document is being requested." 109 S. Ct. at 1481 (quoting Rose, 425 U.S. at 372). FOIA "create(s) a broad right of access to 'official information,'" so that the people may be "informed about 'what their government is up to.'" Ibid. (quoting EPA v. Mink, 410 U.S. 73, 80 (1973), and id. at 105 (Douglas, J., dissenting)). "That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various government files but that reveals little or nothing about an agency's own conduct." Ibid. It follows that the public-interest inquiry under FOIA's privacy exemptions is an objective one, based upon the intrinsic value of the requested material in conveying information about the conduct of government. Consistent with this understanding, the Court explained in Reporters Committee that redacted versions of the Air Force Academy disciplinary-hearing summaries at issue in Rose were an appropriate subject of a FOIA request, because they showed how the disciplinary procedures actually functioned. By contrast, the Court explained that deletion of information that "would identify the particular cadets to whom the summaries related" was "unquestionably appropriate," because the names were irrelevant to the inquiry into the way the Academy administered its honor code. 109 S. Ct. at 1481-1482. The Court similarly concluded in Reporters Committee that the purposes of FOIA would not be furthered by release of a rap sheet containing the criminal history of an individual, even though the requesters sought that information because the individual allegedly had improper dealings with a corrupt Congressman and was an officer of a corporation having defense contracts. The Court pointed out that the requested information "would tell us nothing directly about the character of the Congressman's behavior" or "about the conduct of the Department of Defense" in awarding contracts to the corporation. Reporters Committee, 109 S.Ct. at 1482 (first emphasis added). The State Department's treatment of respondents' FOIA request in this case directly parallels the course approved by the Court in Rose and Reporters Committee. It was "unquestionably appropriate" for the State Department to delete the names of the individual Haitians from the interview summaries released to respondents, because the names were "irrelevant" to the public's assessment of the interview process summarized in the reports; as in Rose, "leaving the identifying material in the summaries would therefore have been a 'clearly unwarranted' invasion of individual privacy." Reporters Committee, 109 S. Ct. at 1482. Accord, Halloran v. Veterans Administration, 874 F.2d 315, 324 (5th Cir. 1989); Miller v. Bell, 661 F.2d 623, 630-631 (7th Cir. 1981), cert. denied, 456 U.S. 960 (1982). And as in Reporters Committee, disclosure of the Haitians' names "would (not) tell us anything about the conduct of the Department of (State)." 109 S. Ct. at 1482. In fact, the court of appeals acknowledged that "the disclosure of the Haitians' names and addresses, in and of itself, will not tell (respondents) anything about Haiti's treatment of its returnees or the U.S. government's honesty about the matter." App., infra, 9a. That should have been the end of the case. b. The court of appeals sought to avoid this result by reasoning that "the identifying information will give (respondents) a means to obtain 'public interest' information in that they can then locate the Haitian returnees and inquire about how they were treated after they were returned to Haiti" -- which the court apparently believed would then shed light on the State Department's performance. App., infra, 9a. There are a number of flaws in this analysis. First, it invites wholesale circumvention of the important protection afforded to personal privacy under FOIA. In Rose, for example, the court of appeals' reasoning presumably would have required the Air Force to disclose the names it had deleted from the disciplinary-hearing summaries if the requesters had represented that they planned to contact the current and former cadets involved and ask them about the truth of the summaries and the fairness of the proceedings. Similarly, in Reporters Committee, the requesters might have obtained the rap sheet simply by expressing their intention to use it to investigate whether the FBI maintained accurate rap sheets or pursued all allegations of criminal activity they contain. Indeed, under the court of appeals' rationale, a requester could obtain access to a broad range of otherwise confidential files maintained in the health, welfare, selective service and veterans programs that FOIA's legislative history identifies as deserving of protection under Exemption 6 (see Rose, 425 U.S. at 375-376), so long as he planned to contact the individuals involved and interview them as part of an investigation into the administration of those governmental programs. That result would conflict with Congress's determination when it enacted FOIA that "these files should not be opened to the public." S. Rep. No. 813, supra, at 9. Second, the court of appeals' derivative-use rationale cannot be squared with the holding in Reporters Committee that disclosure is not required if the requested information itself "would tell us nothing directly" about the conduct of the government. 109 S. Ct. at 1482 (emphasis added). This important limiting principle is rooted in FOIA's text and purposes. FOIA regulates the public availability of "agency records" (5 U.S.C. 552(a)(4)(B) -- i.e., "official information" that is already in the possession of the agency and that documents or governs the conduct of its official business. Reporters Committee, 109 S. Ct. at 1481 & n.20. FOIA is not intended to facilitate access to information outside a federal agency, even where it has some relation to that agency's work. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-154 (1980). For this reason, Exemption 6 requires "a balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information." Rose, 425 U.S. at 372 (quoting H.R. Rep. No. 1497, supra, at 11) (emphasis added). Respondents' desire to obtain nongovernmental information from private sources in Haiti that might shed light on the conduct of the Haitian Government -- and, in turn, on the State Department's conduct in response -- bears too indirect and attenuated a relationship to the purposes of FOIA to justify an invasion of the important privacy interests of the Haitian nationals that are protected by Exemption 6. Third, the court of appeals' reliance on respondents' asserted plan to contact the Haitian nationals conflicts with the holding in Reporters Committee that "whether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made." 109 S. Ct. 1480; see 5 U.S.C. 552(a)(3) (emphasis added) ("each agency, upon any request for records * * * shall make the records promptly available to any person"). Furthermore, an approach that turned on the derivative use that requesters intended to make of government records, rather than on their intrinsic informational value, would introduce undue speculation and complexity into the application of Exemption 6. In this case, for example, an accurate weighing of the asserted public interest in respondents' endeavor would require an assessment of the likelihood that some number of the Haitian nationals would consent to be interviewed by respondents and would change their stories, and that respondents would be able to show that State Department officials were aware or should have been aware of the true circumstances. Congress did not intend the protection of privacy interests under Exemption 6 to depend upon such vague calculations. Thus, when the respective elements of the private and public interests are brought more sharply into focus, the insubstantial and attenuated nature of the supposed public interest in identifying private Haitian citizens becomes apparent. Indeed, as explained above, that supposed interest is different in kind, not merely in degree, from the "public's right to governmental information," on which FOIA is based. H.R. Rep. No. 1497, at 11 (emphasis added). 3. The court of appeals' holding that the identities of the Haitian nationals are not protected from public disclosure by Exemption 6 warrants review for a number of reasons. First, its essentially ad hoc reasoning fails to accord the respect due the State Department's pledge of confidentiality, denigrates basic privacy values recognized by this Court in Rose, Washington Post and Reporters Committee, and minimizes the Haitians' privacy right under FOIA to be left alone. Second, the court of appeals' derivative-use rationale for mandating disclosure of private information fundamentally misconceives the relevant public interest under Exemption 6, as construed in Reporters Committee. Review by this Court could serve to furnish needed guidance to the lower courts on both aspects of the Exemption 6 analysis. The court of appeals' derivative-use rationale is of especially broad significance under FOIA, because -- if permitted to stand -- it would make substantial inroads on privacy protection and this Court's teaching in Reporters Committee. Furthermore, both of these aspects of the decision below conflict with rulings by other courts of appeals. The privacy ruling conflicts with the Sixth Circuit's pre-Reporters Committee decision in Heights Community Congress v. Veterans Administration, supra. There, the requester sought various documents utilized in VA loan guarantees in order "to determine if black veterans were receiving equal access to federal loan guarantees and to further investigate the possibility that lenders and realtors were manipulating the VA loan program so as to steer white and black veterans into specific areas." 732 F.2d at 527. The documents were released but, as here, all names and other identifying information were deleted. Id. at 528. The Sixth Circuit sustained the withholding, despite the acknowledged public importance of the racial steering issue. It was especially concerned that persons armed with the information could track down individual homeowners and interrogate them. In the court's view, "(h)olding a person's privacy hostage in this fashion is contrary * * * to the basic right * * * simply to be left alone." Id. at 530. Thus, the very sort of survey that was accepted by the court below as a justification for disclosure was found in Heights Community Congress to be antithetical to privacy interests protected by Exemption 6. On the public-interest point, the decision below squarely conflicts with the D.C. Circuit's post-Reporters Committee ruling in National Ass'n of Retired Federal Employees v. Horner, supra. In that case, NARFE requested a list of the names and addresses of recent government retirees. 879 F.2d at 874. The court found no public interest, under Reporters Committee, that would outweigh what it termed the "significant" privacy interest involved. In response to NARFE's argument "that disclosure of the annuitants' names and addresses would aid NARFE in its lobbying activities, and thus result in the passage of laws that would benefit the public in general and federal retirees in particular," the D.C. Circuit observed that those considerations involved not what the government is up to, "but only what it might be up to if NARFE had its druthers." Id. at 879. The court likewise rejected the asserted justification that disclosure of the names and addresses of federal annuitants would inform the public where its money is going, reasoning that under Reporters Committee, "unless the public would learn something directly about the workings of the Government by knowing the names and addresses of its annuitants, their disclosure is not affected with the public interest." Ibid. (first emphasis added). If the court below had followed NARFE, then once it concluded that disclosure of the Haitians' names would not tell respondents anything about "Haiti's treatment of its returnees or the U.S. government's honesty about it," App., infra, 9a, the public-interest inquiry would have been at an end. Just as NARFE could not learn the identities of federal annuitants in order to enlist them in an effort to change government policy by lobbying, respondents may not learn the identities of the Haitian nationals in order to enlist them, through interviews, in an effort to monitor and change the State Department's approach to securing fair treatment of returnees by the Haitian Government. Accord, Miller v. Bell, 661 F.2d at 630. /10/ These circuit conflicts warrant resolution. B. The courts below also plainly erred in their refusal to entertain the State Department's submission that the identities of the Haitian nationals are properly classified in the interest of national security and are protected by FOIA Exemptions 1, 7(C) and 7(D). The district court, affirmed by the court of appeals, held that the State Department had waived its right to rely on those Exemptions because it did not invoke them until after the district court rejected its Exemption 6 claim. App., infra, 13a-15a, 32a-33a. 1.a. We readily acknowledge that the government should ordinarily be expected to invoke the FOIA exemptions upon which it relies in a timely manner in the district court. But mistakes and oversights inevitably occur in the processing and litigation of the daunting volume of FOIA requests, and important public interests in the confidentiality of governmental information should not automatically be sacrificed when they do. Cf. OPM v. Richmond, 110 S. Ct. 2465, 2469 (1990). The court of appeals agreed that the courts do have "some discretion" to take account of these practical realities "where justice so requires." App., infra, 14a. In fact, as the court of appeals recognized, ibid., the en banc D.C. Circuit stated in the leading case in this area, Jordan v. Department of Justice, supra, that an appellate court has discretion to reach the merits of a FOIA exemption that (unlike those at issue here) was never even raised in the district court, if the failure to invoke the exemption was due to "pure mistake," if "the value of the material" is "obviously high, e.g., confidential information compromising the nation's foreign relations or national security," and if it appears "highly likely" that the material was intended to be covered by one of the exemptions. 591 F.2d at 780. See also Ryan v. Department of Justice, 617 F.2d 781, 792 (D.C. Cir. 1980) (similar exception for "sensitive, personal private information"). Jordan further indicated that such discretion might be exercised to permit an agency to invoke an exemption for the first time on appeal where there has been a substantial change in the factual context or applicable legal doctrine. Ibid.; see Washington Post Co. v. HHS, 795 F.2d 205, 208 (D.C. Cir. 1986) (noting foregoing exceptions). These standards were satisfied here. First, the court of appeals noted, and did not dispute, the State Department's explanation that its failure to invoke Exemptions 1 and 7 at an earlier time "was the result of pure mistake." App., infra, 14a. As Mr. Byrd stated in his declaration filed in the district court to explain the classification decision, when respondents first filed their FOIA request in 1987, the documents were reviewed by staff in the State Department's FOIA office who had only limited knowledge of the Haitian returnee program. They withheld the names under Exemption 6 because of the obvious privacy interests in the interview setting. Byrd Decl. Paragraphs 3, 4. However, immediately after the court issued its March 1989 order requiring disclosure, the matter was presented to the Acting Assistant Secretary of State for Inter-American Affairs, who "examined the issue and strongly opposed the release of the names based upon the foreign policy implications that such release would have." Id. Paragraph 5. The matter was then referred to Deputy Assistant Secretary Melton, who promptly instituted a classification review and prepared a declaration to accompany the government's motion invoking Exemptions 1 and 7, which explained the foreign relations and law enforcement context of the Haitian returnee program. Ibid.; see pages 4-6, supra. Second, as to the "value" of the information, the record shows that if confidentiality is breached, the identities of confidential sources and other information that has been classified in the interest of national security will be compromised. Compare Jordan, 591 F.2d at 780; Washington Post, 795 F.2d at 208. As a result, persons in Haiti and other countries will be reluctant to cooperate with U.S. officials; the United States will be "severely handicapped in its ability to obtain the information necessary to assess the success of its agreement with Haiti and the interdiction program"; its ability to monitor human rights violations in other countries will be impaired; and persons who have been persecuted will be fearful of informing the State Department about their mistreatment. Melton Decl. Paragraphs 10-12; see pages 5-7, supra. In addition, the personal privacy of the many Haitian nationals who cooperated with U.S. officials will be seriously invaded. Third, Congress clearly did not intend to compel disclosure in this case. The information qualifies for withholding under Exemption 1 because its "unauthorized disclosure * * * reasonably could be expected to cause damage to the national security." Byrd Decl. Paragraph 10 (quoting Exec. Order No. 12356, Section 1.1(a)(3)). The information also is properly withheld under Exemptions 7(C) and 7(D). It was compiled for law enforcement purposes, in furtherance of the government's responsibilities under the federal statutes and international agreements regulating immigration and protecting refugees. Exemption 7(D) authorizes an agency to withhold information whenever disclosure "could reasonably be expected to disclose the identity of a confidential source," a prospect that cannot be seriously contested here. Moreover, given the court of appeals' view that this is a "close" case under Exemption 6, App., infra, 13a, there are firm grounds, even on that court's own terms, for withholding the names under Exemption 7(C)'s more lenient standard. b. The court below cited Jordan, but only for the limited proposition "that courts have some discretion to excuse untimeliness where justice so requires." App., infra, 14a. Like the district court, it declined to inform its discretion in the manner indicated by that decision. /11/ The sum total of its analysis was the observation that it was "difficult to believe that the redacted information implicates compelling national security concerns," in light of the State Department's failure to raise those concerns while the case was pending in the district court for almost two years. App., infra, 9a. The court completely ignored the explanation in the Byrd Declaration, which shows that the identities of the Haitian nationals were immediately classified when the matter was brought to the attention of an official in a position to make the requisite foreign policy judgment. The court also failed to address the detailed explanation in the Melton and Byrd Declarations of the national security considerations warranting classification. When Congress amended Exemption 1 in 1974, it made clear that courts must accord "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." H.R. Conf. Rep. No. 1380, 93d Cong. 2d Sess. 11 (1974). Compliance with that admonition is necessary to satisfy the constitutional requirement that courts accord the Executive the "utmost deference" in this area. United States v. Nixon, 418 U.S. 683, 710 (1974). The court of appeals failed to fulfill that responsibility, instead indulging its own view that it was "difficult to believe" that disclosure implicated national security concerns. 2. The Exemption 1 issue presents special considerations for an additional reason. That Exemption applies only to matters that are both "specifically authorized" under criteria in an Executive order to be kept secret in the interest of national defense or foreign policy, and "in fact properly classified pursuant to such Executive order." When the district court rejected the State Department's reliance on Exemption 6 and ordered it to disclose the identities of the Haitian nationals, that information had not "in fact" been classified pursuant to the Executive Order; the necessary predicate for invoking Exemption 1 therefore was lacking at that time. Under both Jordan and general equitable and constitutional principles, the subsequent classification of the material pursant to Presidential authority constituted an intervening change in the governing factual and legal context of the case that warranted modification of the district court's injunctive order requiring disclosure. See 591 F.2d at 789; Washington Post, 795 F.2d at 208; Fed. R. Civ. P. 60(b)(5) and (6); System Fed'n No. 91, Ry. Employees' Dep't v. Wright, 364 U.S. 642 (1961); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 430-432 (1855); Dames & Moore v. Regan, 453 U.S. 654, 684-685 (1981); United States v. Schooner Peggy, 5 U.S. (1 Cranch)) 103, 110 (1801). In short, the Department of State raised the Exemption 1 claim as soon as the claim was properly available to it, after the information was classified. 3. It would be appropriate for this Court to grant review to afford guidance to the lower courts in addressing claims of exemption raised in circumstances such as these, rather than leaving the matter to the sort of unfettered discretion that the court of appeals appeared to invoke in this case. "(D)iscretionary choices are not left to a court's 'inclination, but to its judgment; and its judgment is to be guided by sound legal principles.'" Albemare Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (quoting United States v. Burr, 25 Fed. Cas. 30, 35 (C.C. Va. 1807) (Marshall, C.J.)). The question is especially appropriate for resolution here, because it arises in the sensitive context of inquiries conducted in confidence by U.S. officials concerning the treatment by a foreign government of its own nationals within its own territory. As we have explained (see page 7, supra), the State Department has broad responsibilities for monitoring human rights violations in other nations, and those efforts play an important role in the enforcement of our own laws as well, such as those governing refugee and asylum applications. If permitted to stand, the decision below will undermine the State Department's ability to assure the confidentiality of contacts with foreign nationals who furnish essential information on these and other subjects. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN G. ROBERTS, JR. Deputy Solicitor General STUART M. GERSON Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General LEONARD SCHAITMAN BRUCE G. FORREST Attorneys NOVEMBER 1990 /1/ "R1" refers to the first volume of the record certified by the district court to the court of appeals. "36" refers to the document number provided by the district court. /2/ Respondents also sought to obtain an alleged list of 600 individuals who had been returned to Haiti and had not been persecuted. The State Department and Immigration and Naturalization Service concluded that no such list existed, and both courts below found their searches adequate. Id. at 16a-20a, 26a-27a. In addition, respondents requested the district court to certify a class of all black Haitian citizens in exclusion and deportation proceedings who would present asylum claims and to enjoin those proceedings until six months after respondents obtained the information they sought under the FOIA. The district court, affirmed by the court of appeals, refused to certify a class and dismissed respondents' non-FOIA claims. App., infra, 5a, 15a-16a, 21a-24a, 29a n.3, 36a-37a. Those issues are not involved here. /3/ Although the district court had withheld entry of final judgment, App., infra, 29a, the motion was styled a Motion to Alter or Amend Judgment and was filed pursuant to Fed. R. Civ. P. 59(e). R4:86, at p. 1. /4/ The declaration (Paragraph 7) described the interview process: When a vessel was interdicted and it was ascertained that the persons on board did not have a bona fide claim to refugee status, the vessel and its passengers were returned to Haiti. Upon arrival at Portau-Prince, a U.S. Embassy official obtained the names and addresses of all returnees. State Department personnel then conducted a follow-up interview of a representative sample of the returnees, usually about six months later. Approximately 27% of the returnees were located and agreed to be interviewed. /5/ On October 12, 1990, the court of appeals denied the State Department's petition for rehearing and suggestion for rehearing en banc. App., infra, 34a-35a. The court thereafter granted the government's motion for a stay of the mandate pending the filing and disposition of a petition for a writ of certiorari, provided that the petition was filed by November 13, 1990. The court of appeals previously had granted the government's motion for a stay pending rehearing, conditioned upon the government's filing the deleted information with its clerk, to be held under seal. /6/ In the law enforcement context, Exemption 7(C) provides further protection of privacy interests by excluding from mandatory disclosure information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). Both Exemption 6 and Exemption 7(C) call for a determination of the impact of disclosure upon personal privacy, as evidenced by the Court's application of the analytical framework of Rose in Reporters Committee. See 109 S.Ct. at 1476, 1478. Although the relative weight given the respective interests may differ under Exemptions 6 and 7(C), the discussion in Reporters Committee of the types of private and public interests to be considered under Exemption 7(C) applies to Exemption 6 as well. /7/ A similar protection for information submitted on the understanding that it will be kept confidential is reflected in Exemption 4, which applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. 552(b)(4); see H.R. Rep. No. 1497, supra, at 10 (Exemption 4 applies to information obtained through "questionnaires" and to material that "would not customarily be made public by the person from whom it was obtained"; "a citizen must be able to confide in his Government," and "where the Government has obligated itself in good faith not to disclose documents or information which it receives, it should be able to honor such obligations"). The same policy is embodied in Exemption 7(D), which applies to information compiled for law enforcement purposes the disclosure of which could reveal a "confidential source," including a state, local or foreign agency or private entity "which furnished information on a confidential basis." 5 U.S.C. 552(b)(7)(D). /8/ Redacted copies of the 17 documents, some of which consist of a number of separate interview summaries, are included as attachments to the Eaves Declaration. /9/ National Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989) (quoting Minnis v. Department of Agriculture, 737 F.2d 784, 787 (9th Cir. 1984)), cert. denied, 110 S. Ct. 1805 (1990); FLRA v. Department of the Treasury, 884 F.2d 1446, 1452 (D.C. Cir. 1989), certs. denied, 110 S.Ct. 863 and 864 (1990); accord, Department of Agriculture v. FLRA, 836 F.2d 1139, 1143 (8th Cir. 1988), vacated on other grounds, 109 S. Ct. 831 (1989); AFGE v. HHS, 712 F.2d 931, 932 (4th Cir. 1983); Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 136-137 (3d Cir. 1974). /10/ The D.C. Circuit reached a similar result in FLRA v. Department of the Treasury, supra, in which the FLRA ordered several federal agencies to supply labor unions with the names and home addresses of federal employees in collective bargaining units. The lawfulness of the FLRA's orders depended upon whether disclosure was required under FOIA, and the court held that it was not. The court recognized that the names of federal employees might provide leads for an investigative reporter to "ferret out what 'government is up to,'" but it found the public interest in disclosure for that purpose to be both minimal and insufficient to outweigh the workers' "significant" interest in the privacy of their homes. 884 F.2d at 1452-1453. /11/ In this case, of course, the State Department did not invoke Exemptions 1 and 7 for the first time on appeal; it invoked them in the district court, after that court rejected the Exemption 6 claim but prior to final judgment. See page 4, supra. This therefore was an occasion for even greater flexibility than Jordan might otherwise provide. APPENDIX