Vol. VII, No. 1
All federal agencies realize that the processing of third-party requests under the Freedom of Information Act -- requests for records on other named individuals -- can involve sensitive personal privacy considerations. But when such requests are made to a federal law enforcement agency, or to any agency which maintains investigatory files, the special privacy consideration involved can call for the careful utilization of a special FOIA response.
Specifically, a FOIA request seeking records which would indicate that a particular political figure, prominent businessman or even just an ordinary citizen has been the subject of a law enforcement investigation may require an agency to flatly refuse to confirm or deny whether such records exist. Such an extraordinary response can be justified only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. See FOIA Update, Spring 1983, at 5. This response, colloquially known as a "Glomar denial" or "Glomarization," was first judicially recognized in the national security context, see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes' submarine retrieval ship, the Glomar Explorer), but it surely is applicable elsewhere.STIGMATIZING CONNOTATION
The application of "Glomarization" in the privacy context is appropriate because disclosure of the mere fact that an individual is mentioned in an agency's law enforcement files carries a stigmatizing connotation, one certainly cognizable under FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C).See, e.g., Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 (D.C. Cir. 1981) ("The disclosure of [the fact that specific individuals were the subjects of a criminal investigation] would produce the unwarranted result of placing the named individuals in the position of having to defend their conduct in the public forum outside of the procedural protections normally afforded the accused in criminal proceedings."); Baez v. Department of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980) ("There can be no clearer example an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation."); see also Miller v. Bell, 661 F.2d 623, 631 32 (7th Cir. 1981) (identities of individuals merely mentioned in law enforcement records protected), cert. denied sub nom. Miller v. Webster, 456 U.S. 960 (1982); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977) (same).
Indeed, only through the consistent application of this masked response to third-party requests, regardless of whether responsive records do actually exist, can the privacy of those who are in fact mentioned in law enforcement files be protected. For example, if an agency provided a "no records" response to its first nine requests for third-party investigatory files, it could not then respond to the tenth request -- where records in fact do exist by "refusing to confirm or deny" without, in effect, disclosing the very fact sought to be protected. See, e.g., Antonelli v. FBI, 721 F.2d 615, 616-19 (7th Cir. 1983), cert. denied, 104 S. Ct. 2399 (1984); Rushford v. Civiletti, 485 F. Supp. 477, 478-80 (D.D.C. 1980), aff'd mem. sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981); see also Gardels v. CIA, 689 F.2d 1100, 1104-06 (D.C. Cir. 1982) (operation of "Glomarization" in national security context).COGNIZABLE PRIVACY INTEREST
Analytically, though, use of the "Glomarization" approach under Exemption 7(C) is justified only when it is determined that there is a cognizable privacy interest at stake and that there is insufficient public interest in disclosure to outweigh it. See, e.g., Common Cause v. National Archives & Records Service, 628 F.2d 179, 184-86 (D.C. Cir. 1980) (balancing required by Exemption 7(C) even for identities of uncharged subjects of law enforcement investigation). In this regard, it should be remembered that there are three circumstances in which the fact that an individual is mentioned in a law enforcement file does not give rise to a privacy interest cognizable under Exemption 7(C).
First, there is the principle that deceased persons are possessed of no protectible privacy interests under the FOIA; therefore, when an agency is aware of the record subject's death, either because the requester has provided proof of this fact or because it is reflected in the responsive records, neither of the FOIA's privacy exemptions may be invoked. See, e.g., Tigar & Buffone v. United States Department of Justice, Civil No. 80-2382, slip op. at 9-10 (D.D.C. Sept. 30, 1983); Diamond v. FBI, 532 F. Supp. 216, 227 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983), cert. denied, 465 U.S. 1004 (1984); Rabbitt v. Department of the Air Force, 383 F. Supp. 1065, 1070 (S.D.N.Y. 1974), on motion for reconsideration, 401 F. Supp. 1206, 1210 (S.D.N.Y. 1975); see also FOIA Update, Sept. 1982, at 5. But see also Kiraly v. FBI, 728 F.2d 273, 277-79 (6th Cir. 1984). Note, however, that information about a decedent may, in some very unusual cases, also directly implicate the privacy interests of a relative or close personal associate who does qualify for FOIA exemption protection. See, e.g., Price v. United States Department of Justice, Civil No. 84-330-A, slip op. at 6-7 (M.D. La. June 25, 1985).
Second, if the third-party subject of a request has provided the requester with a waiver of his privacy rights, then privacy exemptions cannot be invoked on his behalf as regards that requester. Because of the strict nondisclosure requirements of the Privacy Act of 1974, 5 U.S.C. § 552a(b), it is essential that such authorizations be set out specifically in writing. See Perry v. FBI, 759 F.2d 1271, 1276 (7th Cir. 1985); Taylor v. Orr, Civil No. 83-0389, slip op. at 5 n.6 (D.D.C. Dec. 5, 1983).
Third, if the federal government has already officially confirmed that the third party was or is the subject of a federal investigation -- usually by indicting and prosecuting him -- then the very fact that an agency maintains a corresponding investigatory file cannot be regarded as a "private" fact about that person. See, e.g., Heimerle v. United States Department of Justice, Civil No. 83-1944-(MEL), slip op. at 5 (S.D.N.Y. Mar. 4, 1985) ("[I]ndividuals whose identities were withheld can no longer claim privacy interests with respect to the subject matter in question due to their public participation in criminal proceedings."); Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538, 544 (D.D.C. 1977) (no privacy protection for fact of "prior convictions"); Tennessean Newspapers, Inc. v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975) (ordering disclosure of records reflecting recent arrests and indictments). It is possible, though, that under some circumstances a lengthy passage of time may be found to have effectively removed such a fact from the "public domain." Cf. Roshto v. Herbert, 413 So. 2d 927, 931-33 (La. App. 1982) (common law cause of action for invasion of privacy recognized for recounting of circumstances of 25-year-old criminal conviction); Briscoe v. Reader's Digest Association, 93 Cal. Rptr. 866, 875, 483 P.2d 34, 43 (Cal. 1971) (same for 11-year-old criminal conviction). But cf. Montesano v. Donrey Media Group, 668 P.2d 1081, 1088 (Nev. 1983) (no such cause of action recognized regarding details of 14-year-old criminal conviction).BALANCING THE INTERESTS
Once a cognizable privacy interest is found to exist, the next analytical step in the "Glomarization" process is to review all responsive records to determine if there is any public interest in disclosure which might outweigh the individual's privacy interest. To be sure, the public interest in disclosure would have to be particularly acute in order to override the privacy considerations of an individual who would be exposed as a subject of a criminal law enforcement investigation under circumstances which he would not be afforded the benefit of a public trial to defend his reputation. See, e.g., Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d at 863-66 (identities of those investigated but not charged must be protected unless "exceptional interests militate in favor of disclosure"); Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. at 545.
Although it has sometimes been suggested that an individual's status as a public figure should diminish the extent to which his privacy is protected, see, e.g., Common Cause v. National Archives & Records Service, 628 F. 2d at 866; but see also FOIA Update, Sept. 1982, at 5, the FOIA case law firmly supports use of the "Glomar denial" for requests seeking investigatory records which would reflect uncharged criminal misconduct by even such prominent individuals. See, e.g., Knight Publishing Co. v. United States Department of Justice, Civil No. C-C-84-510-P, slip op. at 1-2 (W.D.N.C. Mar. 28, 1985) (governor, lieutenant governor and attorney general of North Carolina); Ray v. United States Department of Justice, Civil No. 3-84-1234, slip op. at 2-3 (M.D. Tenn. Nov. 30, 1984) (state senator); Rushford v. Civiletti, 485 F. Supp. at 479-81 (federal judges).
On the other hand, there is a weighty public interest compelling disclosure of records which reflect formal and final agency determinations of official misconduct by senior government employees. See, e.g., Cochran v. United States, 770 F. 2d 949, 957 (11th Cir. 1985) ("information relating to a misappropriation of government funds . . . by a high level government official qualifies as a textbook example of information the FOIA would require to be disclosed"); Stern v. FBI, 737 F.2d 84, 93 (D.C. Cir. 1984) (high-level FBI official censured for deliberate misrepresentation); Sullivan v. Veterans Administration, 617 F. Supp. 258, 260-61 (D.D.C. 1985) (senior official reprimanded for misuse of government vehicle and failure to report accident); see also Bast v. United States Department of Justice, 665 F.2d 1251, 1255-56 (D.C. Cir. 1981) ("public importance of judicial impartiality outweighs the privacy interest" of federal judge in particular case).RECORD SEARCH AND REVIEW
Thus, in order to properly respond to a FOIA request for law enforcement records pertaining to a third party, it is necessary that an agency search for and conduct a sufficient review of all responsive records to determine whether they reflect (1) the death of the subject, (2) an official acknowledgment of the investigation, or (3) a public interest in disclosure sufficient to override the subject's privacy interests. The cases which have expressly addressed the logical requisites of Exemption 7(C) "Glomarization" have made these agency requirements clear. See Gilday v. United States Department of Justice, Civil No. 85-292, slip op. at 5-10 (D.D.C. July 23, 1985) (agency must conduct record search and review even in "Glomarization" situation); Shaw v. FBI, 604 F. Supp. 342, 344-45 (D.D.C. 1985) (same); see also Ely v. FBI, 781 F. 2d 1487, 1491-94 (11th Cir. 1986) (public and in camera affidavit requirements).
Prior to commencing such a search and review, it is of course permissible for an agency to seek additional information from the requester to assist in resolving questions of waiver, the subject's death, official acknowledgment and any public interest in disclosure. In conducting its review, an agency may assess search fees for its efforts expended in locating the responsive files, but not for the document review necessary to make the required determinations. Obviously, any interim response soliciting a requester's promise to pay search fees (in those instances in which such fees exceed the agency's minimum fee threshold) should carefully explain the agency's "Glomarization" policy, including the fact that it is quite possible that the agency ultimately will be unable to acknowledge the existence of any records responsive to such a request.CONCLUSION
In sum, the legitimate personal privacy interests of individuals referenced in law enforcement files can be protected only through the uniform application of the "Glomarization" principle to third-party requests. Such a response is appropriate only after the agency has conducted a search and record review, together with a careful analysis and weighing of all personal privacy and public interest considerations. Where an agency follows this procedure, it will be able to defend its use of this extraordinary FOIA procedure.
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