Vol. X, No. 2
Privacy Protection Under the Supreme Court's Reporters Committee Decision
In the administration of the Freedom of Information Act, few decisions can be as complex and challenging as those involving the possible protection of personal privacy. Such decisions necessarily require careful consideration of both the privacy interest and the "public interest" involved in a requested disclosure. Over the years, federal agencies have reached difficult privacy-protection determinations under Exemptions 6 and 7(C) of the Act according to a traditional "balancing process" employed since the FOIA was first enacted. See FOIA Update, Sept. 1982, at 1, 3, 6.
Two years ago, however, in the case of Reporters Committee for Freedom of the Press v. Department of Justice, 816 F.2d 730 (D.C. Cir.), modified on denial of panel reh'g, 831 F.2d 1124 (D.C. Cir. 1987), reh'g en banc denied, Nos. 85-6020, 85-6144 (D.C. Cir. Dec. 4, 1987), the D.C. Circuit Court of Appeals severely questioned the mechanics of this basic balancing process, doing so in a fashion that left great confusion and uncertainty over the proper approach to be employed. In response to this, the Solicitor General sought review of the matter by the United States Supreme Court and the Office of Information and Privacy formally advised all agencies to continue the traditional balancing approach, despite the D.C. Circuit's pronouncements, pending Supreme Court resolution. See FOIA Update, Spring 1988, at 3-5.
Now the Supreme Court has issued a landmark FOIA decision in the Reporters Committee case, setting forth new privacy-protection principles that alter the traditional balancing process employed under Exemptions 6 and 7(C). Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989). A full understanding of the Supreme Court's Reporters Committee decision is now essential to the proper application of the Act's two privacy exemptions.The Reporters Committee Case
The Reporters Committee case involved FOIA requests from members of the news media for access to any criminal history records -- known as "rap sheets" -- maintained by the FBI regarding certain persons alleged to have been involved in organized crime and improper dealings with a corrupt congressman. 109 S. Ct. at 1473. Such records show any "history of arrests, charges, convictions, and incarcerations" on named individuals at the state and local (as well as federal) levels. Id. at 1470. In accordance with its general policy of not disclosing such compilations of raw arrest information, the FBI refused to disclose any such records on the one surviving individual involved in the case, relying upon Exemption 7(C). Id. at 1473. Exemption 7(C) protection was rejected by the D.C. Circuit, however, based upon the fact that the items of information contained in rap sheets are available to the general public at some points in local criminal justice systems and based also upon a confused notion of "public interest" balancing. See FOIA Update, Spring 1988, 3-4.
Thus, the Supreme Court in Reporters Committee was required to determine the FOIA significance of the limited public availability of rap-sheet information. Most significantly, it also had to address the basic mechanics and operation of Exemption 7(C)'s balancing process in order to consider its applicability to rap sheets in general. In the course of reaching its decision as to the rap sheet issue presented in the case, the Court articulated five new principles, drawn from the Act and its underlying policies, that should guide future privacy-protection decisionmaking.New Guiding Principles
First, the Supreme Court stated that substantial privacy interests can exist in personal information such as is contained in rap sheets, even though the information has been made available to the general public at some place and point in time. Applying a "practical obscurity" standard, 109 S. Ct. at 1476, 1485, the Court observed that if such items of information actually "were 'freely available,' there would be no reason to invoke the FOIA to obtain access to" them. Id. at 1477.
Second, the Court articulated, as a controlling principle, the rule that the identity of a FOIA requester cannot be taken into consideration in determining what should be released under the Act. With the single exception that of course an agency will not invoke an exemption where the particular interest to be protected is the requester's own interest, the Court declared, "the identity of the requesting party has no bearing on the merits of his or her FOIA request." 109 S. Ct. at 1480.
Third, the Court ruled that in determining whether any "public interest" would be served by a requested disclosure, as required under a privacy exemption, one should no longer consider "the purposes for which the request for information is made." 109 S. Ct. at 1480. Rather than turn on a requester's "particular purpose," circumstances, or proposed use, the Court ruled, such determinations "must turn on the nature of the requested document and its relationship to" the public interest generally. Id. at 1481.
Fourth, the Court sharply delimited the scope of the "public interest" to be considered under the Act's privacy exemptions, declaring for the first time that it is limited to "the kind of public interest for which Congress enacted the FOIA." 109 S. Ct. at 1482. This "core purpose of the FOIA," as the Court termed it, id. at 1483, is to "shed light on an agency's performance of its statutory duties," id. at 1481. Information that does not directly reveal government operations or activities, the Court stressed, "falls outside the ambit of the public interest that the FOIA was enacted to serve." Id. at 1482.
Fifth, the Court established the proposition, under Exemption 7(C), that agencies may engage in "categorical balancing" in favor of nondisclosure. 109 S. Ct. at 1483-85 & n.22. Under this new approach, which builds upon the above principles, it may be determined, "as a categorical matter," that a certain type of information always is protectible under Exemption 7(C), "without regard to individual circumstances." Id. at 1485.Exemption 7(C) Protection for "Rap Sheets"
Applying these privacy-protection principles to the rap sheets before it, the Supreme Court decided in Reporters Committee that such records are "categorically" withholdable under Exemption 7(C). 109 S. Ct. at 1485. The Court had little difficulty with the limited public availability of the items contained in rap sheets, deeming them "compilation[s] of otherwise hard-to-obtain information." Id. at 1477. It concluded that "a strong privacy interest inheres in the nondisclosure of compiled computerized information," id. at 1478, and that "[t]he privacy interest in maintaining the practical obscurity of rap-sheet information will always be high." Id. at 1485.
On the "public interest" side of the balance, the Court firmly applied the rule that the news media requesters before the Court were entitled to no greater access to a rap sheet than "any other third party" who might seek such a record. 109 S. Ct. at 1480. Consistent with that, it did not consider the "particular purpose" for which the FOIA request was made in the case and instead looked only at the "nature" of a rap sheet and its contents in order to analyze whether any countervailing "public interest" would be served by disclosure. Id. at 1481.
The Court conducted this analysis for rap sheets according to its new "public interest" standard, limited to whether disclosure would serve the "core purpose" of the Act. 109 S. Ct. at 1481-83. It recognized that the disclosure of rap-sheet information might provide "details to include in a news story" and that "[t]here is, unquestionably, some public interest" in the criminal history of a person alleged to have had improper dealings with government officials, but it pointedly concluded that that simply is "not the type" of public interest properly factored into the balance under the FOIA. Id. at 1482 (emphasis in original). In so doing, the Court emphasized that rap sheets contain information "about a particular private citizen" and that they disclose "nothing directly" about the performance of governmental duties. Id. See also id. at 1478 n.18.
Based upon this assessment of the respective interests implicated in any FOIA request for a rap sheet, and upon its new principle of "categorical balancing" under Exemption 7(C), the Court concluded, "as a categorical matter," that such law enforcement records are properly withheld under Exemption 7(C). 109 S. Ct. at 1485.
Reporters Committee's Ramifications
The Supreme Court's decision in Reporters Committee will have ramifications extending far beyond the realm of the rap sheets at issue there. The five new privacy-protection principles employed by the Court to determine the Exemption 7(C) status of rap sheets all logically apply under Exemptions 6 and 7(C) alike, and together they transform the basic balancing process by which decisions are made under both of these privacy exemptions. See FOIA Update, Spring 1989, at 7.
Of threshold importance to the process of privacy-protection decisionmaking under the FOIA is the fact that the Court in Reporters Committee rejected the "public availability" element of the case in finding a protectible privacy interest in the first place. In doing so, it firmly recognized "the privacy interest in keeping personal facts away from the public eye," 109 S. Ct. at 1480, especially where they appear in a "federal compilation," id. at 1478, despite their public availability elsewhere. Accord Department of State v. Washington Post Co., 456 U.S. 595, 603 n.5 (1982). Under the approach adopted by the Court, the limited public availability of an item of personal information does not disqualify it from privacy protection under the FOIA where there exists a "privacy interest in maintaining [its] practical obscurity." 109 S. Ct. at 1485. This new "practical obscurity" standard should apply to all such issues of public availability under the Act.Treating Requesters Alike
A more subtle yet highly significant aspect of the Court's opinion in Reporters Committee is its pronouncement that a FOIA requester's identity can have "no bearing on the merits of his or her FOIA request." 109 S. Ct. at 1480. In so declaring, the Court made it unmistakably clear, once and for all, that agencies should treat all requesters alike in making FOIA disclosure decisions. The only exception to this, as the Court specifically noted, is that of course an agency should not withhold from a requester any information that implicates that requester's own interest only; making a disclosure to a "first-party" requester in such a circumstance "is consistent with . . . denying access to all other members of the general public." Id. Put more colloquially, an agency will not invoke an exemption to protect a requester from himself.
What this means is that the only basis for ever treating requesters differently in making FOIA disclosures is according to the protectible interests that some requesters have in their own personal information. With this single exception, FOIA disclosures should now firmly follow the axiom that "disclosure to one is disclosure to all." Where an agency considers a FOIA request for information about a third party, it should treat the requester as any member of the general public, disclosing no more or less information than would be released to anyone (with the exception of the party to whom the information pertains). This means that a requester's particular knowledge of the information in question or its underlying circumstances (perhaps due to his relationship with the interested party, for example) should not be taken into account; rather, FOIA-exemption decisions should be regarded as settling the matter of public access to the information generally. See 109 S. Ct. at 1481 & n.19. Therefore, agencies should be especially careful not to disclose personal information to any third-party requester that they would withhold as exempt from any member of the general public.
A related principle under the Act's privacy exemptions is the Court's teaching in Reporters Committee that the "public interest" balancing required under those exemptions should not include consideration of the requester's "particular purpose" in making the request. 109 S. Ct. at 1481. With this instruction, the Court has resolved a lingering point of uncertainty over the proper treatment of sequential FOIA requesters for the same information who seek to serve varying "public interest" purposes through disclosure. Compare Ditlow v. Shultz, 517 F.2d 166, 171-72 & nn.18-21 (D.C. Cir. 1975) with Getman v. NLRB, 450 F.2d 670, 677 & n.24 (D.C. Cir. 1971). This previously troublesome question -- which likely was the root cause of the D.C. Circuit's strained "public interest" analysis below, see 831 F.2d at 1125-26 -- has now been firmly put to rest by the Supreme Court's clear rule: "Public interest" balancing should be conducted without regard to "the particular purpose for which the document is being requested." 109 S. Ct. at 1481.
Thus, the Supreme Court in Reporters Committee effectively overruled the longstanding "Getman public interest" approach by which a requester's particular circumstances and intention to serve a public interest through his use of the information was considered in the balancing process and often was dispositive. See 450 F.2d at 675-77 (holding that labor law professor would serve overriding public interest if given access to employee name-and-address list for proposed empirical study of union election process); see also, e.g., NARFE v. Horner, 633 F. Supp. 1241, 1244 (D.D.C. 1986) (finding overriding public interest in disclosure of names and addresses of federal annuitants to organization that promotes their interests), supplemental appellate briefing ordered in light of Reporters Committee decision, No. 86-5446 (D.C. Cir. Apr. 13, 1989); Disabled Officer's Ass'n v. Rumsfeld, 428 F. Supp. 454, 458 (D.D.C. 1977) (organization serving needs of retired military officers held entitled to names and addresses of such personnel), aff'd mem., 574 F.2d 636 (D.C. Cir. 1979). This "use" approach to determining whether any "public interest" would be served by a requested disclosure should be followed no longer.
Instead, the Court has instructed, the proper approach to the balancing process is to focus on "the nature of the requested document" and to consider "its relationship to" the "public interest." 109 S. Ct. at 1481. This approach thus does not permit attention to the special circumstances of any particular FOIA requester. See id. at 1480-81 & n.20. Rather, it necessarily involves a more general "public interest" assessment based upon the contents and context of the records sought and their connection to any "public interest" that would be served by disclosure. In making such assessments, agencies should look to the possible effects of disclosure to the public in general.Narrowed "Public Interest" Concept
Perhaps the most significant of the alterations made by the Supreme Court in Reporters Committee is its narrowing of the very concept of "public interest" under the Act. The Court's sharp limitation of that concept to "the public interest that the FOIA was enacted to serve," 109 S. Ct. at 1482, referred to as the Act's "core purpose," id. at 1483, can be expected to have a large effect on FOIA decisionmaking.
This new "core purpose" public interest standard -- which is satisfied where requested information "sheds light on an agency's performance of its statutory duties," 109 S. Ct. at 1481 -- should govern the process of balancing interests under Exemptions 6 and 7(C). Before that balancing of interests is undertaken in any instance, it now must first be determined that an identified "public interest" to be served by disclosure qualifies for balancing under the "core purpose" standard. See id. at 1482.
In making such "core purpose" determinations, agencies should bear in mind that a touchstone of this new standard is the "operations or activities of the government." 109 S. Ct. at 1483 (employing language of 5 U.S.C. § 552(a)(4)(A)(iii)). Certainly, the information maintained by the federal government tends to relate to exactly that. But the many items of personal information about private citizens that the government maintains -- the very information likely to be considered for Exemption 6 or 7(C) protection -- tend to, as the Supreme Court said of rap sheets, "reveal little or nothing about an agency's own conduct." 109 S. Ct. at 1481; see also id. at 1478 n.18 ("[Rap sheets] tell us nothing about matters of substantive law-enforcement policy that are properly the subject of public concern."). Such information will not easily meet this narrowed "public interest" standard. See, e.g., Halloran v. VA, No. 88-6180, slip op. at 4000-02 (5th Cir. June 6, 1989).
In applying this new FOIA standard, agencies also should not overlook the Supreme Court's final Reporters Committee innovation -- the "categorical balancing" of interests. The Court went to some lengths to conclude that rap sheets are "categorically" entitled to protection under Exemption 7(C). See 109 S. Ct. at 1483-85. In so doing, it provided a basis for the future identification of other categories of records that may likewise be entitled to such protection. As agencies apply Reporters Committee to their records, they should consider whether those records are so like rap sheets as to be candidates for like treatment.Significant Privacy Act Ramification
Finally, a significant and perhaps unexpected ramification of Reporters Committee results from the delicate interplay of the FOIA's newly broadened privacy exemptions and the general prohibition on information disclosure that is found in the Privacy Act of 1974, 5 U.S.C. § 552a(b). Any information covered by the Privacy Act can be disclosed only as permitted by the enumerated exceptions in 5 U.S.C. § 552a(b)(1)-(12); the one exception accommodating the FOIA, 5 U.S.C. § 552a(b)(2), permits disclosure only when it is "required" under the FOIA. See FOIA Update, Summer 1984, at 2.
Because of this interface between these two statutes and because, as the Supreme Court recognized in Reporters Committee, a disclosure may serve "some public interest" (such as "provid[ing] details to include in a news story") but nevertheless "fall outside the ambit of the public interest that the FOIA was enacted to serve," 109 S. Ct. at 1482 (emphasis in original), agencies will have to carefully reexamine their pre-Reporters Committee personal-information disclosure policies. Specifically, where an agency determines that the only "public interest" that would be furthered by a disclosure is now a nonqualifying one under Reporters Committee (even where it believes that disclosure would be in furtherance of good public policy generally), it no longer may balance in favor of disclosure under the FOIA and the disclosure therefore would be prohibited under the Privacy Act -- unless authorized by another of its exceptions, such as the "routine use" exception of 5 U.S.C. § 552a(b)(3). Agencies should review their Privacy Act practices in coordination with the Office of Management and Budget, which holds policy responsibility for that statute.
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