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FOIA Update: FOIA Counselor: Factoring in the "Public Interest"

FOIA Update
Vol. III, No. 4

FOIA Counselor

Factoring in the "Public Interest"

Two of the most difficult exemptions of the Freedom of Information Act to work with are its privacy exemptions, 6 and 7(C), the application of which involves a delicate balancing process. As the Supreme Court has put it, they "require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny.'" Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976). See also Lesar v. Department of Justice, 636 F.2d 472, 486 & n.80 (D.C. Cir. 1980).

This process requires agencies to be familiar with the various protectable privacy interests to be taken into consideration on one side of the balance, as well as the types of public interest considerations which properly factor into the other side of the balance. Occasionally, agency personnel are uncertain about whether an asserted "public interest" in requested disclosure should be given significant weight, or even any weight at all, in the balancing process.

Some public interest factors are properly taken into consideration and accorded great weight. For example, the courts have found the public interest in disclosure to be strong when requested information would inform the public about proven violations of public trust. See, e.g., Columbia Packing Co., Inc. v. Department of Agriculture, 563 F.2d 495, 499 (1st Cir. 1977) (federal employees found guilty of accepting bribes); Congressional News Syndicate v. Department of Justice, 438 F. Supp, 538, 544 (D.D.C. 1977) (misconduct by White House staffers). As one court has observed, there is an "obvious public interest in a full and thorough airing of . . . serious abuses that did in fact occur, in the hope that such abuses will not occur in the future." Tax Reform Research Group v. IRS, 419 F. Supp. 415, 418 (D.D.C. 1976).

Apart from proven government wrongdoing, the courts have recognized a variety of other public interest factors entitled to heavy, often dispositive, weight. See, e.g., Ferri v. Bell, 645 F.2d 1213, 1218 (3d Cir. 1981), vacated & reinstated in part on rehearing, 671 F.2d 769 (3d Cir. 1982) (attempt to expose alleged deal between prosecutor and witness found to be in public interest); Getman v. NLRB, 450 F.2d 670, 675-76 (D.C. Cir. 1971) (public interest need for study of union elections held sufficient to warrant release of names and addresses of employee voters); Disabled Officers Ass'n v. Rumsfeld, 428 F. Supp. 454, 458 (D.D.C. 1977) (nonprofit organization serving needs of disabled Air Force personnel held entitled to data on such personnel).

It must be remembered, however, that not all assertions of "public interest" under Exemptions 6 and 7(C) are legitimately entitled to any real weight in the balancing process. See, e.g., Church of Scientology v. Department of the Army, 611 F.2d 738, 747 (9th Cir. 1980) ("There could be no legitimate public purpose served by disclosure of this information."). For example, an allegation of "public interest" that is nothing more than "a general public curiosity" in the subject matter of requested records is legally insufficient. Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 1981). Similarly, requesters who assert "no particular interests other than their own personal curiosity" actually assert nothing that properly weighs in favor of disclosure. Tarnopol v. FBI, 442 F. Supp. 5, 8 (D.D.C. 1977).

Of course, even when a requester identifies a specific and tangible disclosure interest, but one which is peculiar to the requester, there is no "public interest" compelling disclosure. See, e.g., Committee on Masonic Homes v. NLRB, 556 F.2d 214, 220 (3d Cir. 1977) ("we are not interested in the [requester's] benefit"); cf. Aviation Data Service v. FAA, 3 GDS ¶ 82,428 (10th Cir. August 4, 1982) ("self-interest was the primary factor . . . the public benefit, if any, [was] almost nil") (attorney's fees context). By the same token, requesters who have a clear personal interest in obtaining disclosure, such as for use in private litigation, should expect to have their assertions of "public interest" scrutinized very carefully. See, e.g., Lloyd & Henniger v. Marshall, 526 F. Supp. 485, 487 (M.D. Fla. 1981) (assertion of vague "public interest" found to be "of no weight in the balance"). See also Stauss v. IRS, 516 F. Supp. 1218, 1222 n.7 (D.D.C. 1981) ("public interest" in identifying tax protesters in hopes of discouraging such activities or encouraging public debate found to be "somewhat specious").

Nor is there necessarily any legitimate "public interest" served by individual requesters who are self-appointed to provide generalized "services" to the public through access to information. See, e.g., Harbolt v. Department of State, 616 F.2d 772, 775 (5th Cir.) (federal prisoner's intention to contact and provide "services" to U.S. citizens imprisoned overseas furthers no public interest), cert. denied, 449 U.S. 856 (1980). One such requester attempted to make a "public interest" showing based upon the bare assertion that he would use the requested information "to serve as a watchdog over the adequacy and completeness of an FBI investigation," but that assertion was found to have "little weight" in the balancing process. Miller v. Bell, 661 F.2d 623, 630 (7th Cir. 1981). Indeed, many such assertions of "public interest" benefits flowing from disclosure are "too uncertain, indirect and remote" to properly factor into the balance. Brown v. FBI, 658 F.2d 71, 76 (2d Cir. 1981) (possibility of winning new trial through collateral attack of Government witness held "too uncertain" to serve public interest in fair administration of justice). See also, e.g., Plain Dealer Publishing Co. v. Department of Labor, 471 F. Supp. 1023, 1029-30 (D.D.C. 1979) (asserted "public interest" in monitoring operation of federal agency found to be "speculative").

In sum, while agencies making determinations under Exemptions 6 and 7(C) should give careful consideration to any true public interest which would be served by disclosure, some of the assertions of "public interest" factors advanced by requesters are entitled to little weight, if any, in the balancing process. Given the enormous importance and responsibility of protecting individual privacy rights -- rights regarded as no less than "fundamental" in our jurisprudence, e.g., Griswold v. Connecticut, 381 U.S. 479, 485 (1965) -- agency personnel applying the FOIA's privacy exemptions should always give penetrating scrutiny to assertions by requesters that disclosure of personal privacy information would somehow serve the "public interest."

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Updated August 13, 2014