Vol. IX, No. 2
Privacy Protection in the Wake of the Reporters Committee Decision
One of the most difficult decisions required to be made in the processing of records for disclosure under the Freedom of Information Act is the determination of exactly which information can and cannot properly be withheld from disclosure on personal privacy grounds. Day after day, all federal agencies implementing the FOIA are faced with the challenging responsibility of making such delicate delineations. Recently, though, there has arisen some question about the basic analytical process by which these privacy-protection decisions regularly are made.Proper Privacy Protection
The proper protection of personal privacy interests is a fundamental matter of sound public policy and has always been a major part of FOIA administration -- so much so that the Act contains two separate exemptions, Exemptions 6 and 7(C), to afford protection against disclosures that would constitute "unwarranted invasions of personal privacy." See 5 U.S.C. § 552(b)(6) (establishing "clearly unwarranted" standard regarding personal information in general); 5 U.S.C. § 552(b)(7)(C) (establishing lessened standard regarding personal information compiled for law enforcement purposes). Further, much federal information on individuals is covered by the Privacy Act of 1974, 5 U.S.C. § 552a, which affirmatively prohibits public disclosure of personal information unless, for example, it is required to be disclosed under the FOIA because it is not protected by the FOIA's privacy exemptions. See 5 U.S.C. § 552a(b)(2).
The process by which agency FOIA analysts make these privacy determinations is essentially the same under both Exemption 6 and Exemption 7(C). Threshold considerations aside, the application of each of these exemptions requires a multi-step "balancing process," which starts with "the identification of the privacy interests at stake," and next requires one "to identify the public interest in disclosure." Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984). Then, as one court has put it, the decisionmaker "must undertake a balancing of the public interest in disclosure on the one side and the individual's interest in privacy on the other." Fund for Constitutional Gov't v. National Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981).
Phrased another way, this means that one "must decide whether disclosure would harm [privacy] interests more than it would benefit the public." Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984). This very delicate balance "must be struck in each particular case, weighing the specific privacy invasion against the value of disclosing a given document." Bast v. Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981). Thus, in reaching privacy-protection judgments under the FOIA, agencies are "called upon to balance the conflicting interests and values involved" in each case. Lesar v. Department of Justice, 636 F.2d 472, 486 n.80 (D.C. Cir. 1980).The Reporters Committee Case
This basic process by which personal privacy and public interests are balanced under the FOIA has been greatly called into question during the past year by the D.C. Circuit Court of Appeals' decisions in 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), cert. granted, 108 S. Ct. 1467 (1988). The two panel opinions issued in that case have sought to alter the mechanics of this balancing process, particularly regarding the "public interest" side of the balance, in a way that has left agencies confused over how they should proceed under both of the FOIA's privacy exemptions.
The Reporters Committee case involves FOIA requests for any FBI "rap sheets," or criminal history records, on certain persons who may have been arrested and/or convicted for criminal offenses more than 30 years ago. It presents the novel legal question under Exemption 7(C) of whether such records that might have been publicly available at some place and point in time can be withheld to protect personal privacy interests under the FOIA. See 816 F.2d at 738. The D.C. Circuit in Reporters Committee ruled against Exemption 7(C) protection for such records, based largely upon the view that if they were ever made a matter of public record "any privacy interest in those records seems insignificant." Id. at 740.
Beyond this highly questionable view of this particular privacy-interest issue, though, the two panel opinions issued in Reporters Committee went much further regarding the "public interest" side of the balance. Initially, it was held that a proper "public interest" analysis should consider "only the interest of the general public in release of the records," not any particular public interest related to "the specific purpose of the request." 816 F.2d at 742. This initial departure from established "public interest" balancing under the FOIA drew a sharp dissent. See id. at 743-46 (Starr, J., dissenting in part).
Then, while denying rehearing in the case, the divided panel issued a supplemental opinion in which it "modif[ied its] rationale" on the "public interest" balancing issue. 831 F.2d at 1125. The panel majority proceeded to hold that the "public interest" to be considered in the balancing process is only a general, unvarying one that does not depend upon the circumstances of each case: It should not include any "appraisal of the public's need to know particular information." Id. at 1127. Rather, the court declared, the "public interest" to be factored into the balance "means [nothing] more or less than the general disclosure policies of the statute." Id. at 1126. The court thus concluded that "public interest" balancing under Exemption 7(C) should no longer involve any assessment of "the public interest in disclosure of [the] particular information" in question. Id.
This opinion drew an even sharper dissent on this critical issue, in which it was observed that "the public interest in any particular case can vary beyond the 'general disclosure policies of the statute'" and that the court "should abandon right now [this] unfortunate departure from traditional FOIA analysis . . . [and] should then conduct an old-fashioned Exemption 7(C) balancing." Id. at 1129-30 (Starr, J., dissenting) (emphasis in original). Although the Government strenuously argued likewise, the full D.C. Circuit denied rehearing en banc by a 7-4 vote.The Wake of Reporters Committee
The D.C. Circuit's actions in Reporters Committee have caused great uncertainty about the proper balancing of interests to be undertaken under Exemption 7(C) and, by logical implication, Exemption 6 as well. Even apart from the fact that the supplemental opinion's view of "public interest" balancing is such a departure from the traditional mode of analysis, it leaves FOIA analysts at the administrative level with virtually no practical means of determining the magnitude of the general "public interest" contemplated by the opinion -- or of applying it dispositively when striking the balance in any particular case. Indeed, the opinion contains no clear guidance on how its new conception of "public interest" balancing would be implemented. See 831 F.2d at 1126 (cryptically suggesting that generalized public interest "might well" be outweighed even by privacy interest in publicly available information in this case).Supreme Court Review
Fortunately, further clarification on this vital issue -- and most likely a comprehensive review of the entire subject of privacy protection under the FOIA -- should be forthcoming from the United States Supreme Court when it considers the Reporters Committee case on certiorari during its upcoming 1988-1989 Term. In agreeing to review both the privacy and "public interest" issues presented in Reporters Committee, the Supreme Court has apparently decided to confront these difficult issues and, it is anticipated, to resolve them dispositively.
In its briefs before the Supreme Court in Reporters Committee, the Government has taken the position that the D.C. Circuit's application of the Exemption 7(C) balancing process was flawed on both sides of the balance. It argues that there can exist a strong privacy interest in criminal arrest records and even conviction records after the passage of many years, notwithstanding their possible public availability; that the "public interest" in disclosure should be considered, and can vary, on a case-by-case basis; and that such "public interest" determinations should be made with reference to both the content of the particular records in question and the "core purposes" sought to be served by the FOIA. See, e.g., Department of Justice v. Reporters Committee for Freedom of the Press, No. 87-1379, Brief For The Petitioners at 34, 45-47.
It reasonably can be expected that when the Supreme Court considers Reporters Committee later this year it will, at a minimum, review the D.C. Circuit's decisions toward the end of providing necessary clarification on the "public interest" balancing issue, if not a complete rejection of the D.C. Circuit's novel conception. It is quite significant that several organizations have obtained leave to participate in the case as amici curiae and that they uniformly have joined the Government in urging such rejection of the D.C. Circuit's decisions.Traditional Balancing Should Continue
Therefore, and particularly in light of the impracticability of applying the Reporters Committee "public interest" formulation as it has been set forth, agencies are best advised to continue their traditional balancing processes under both Exemptions 6 and 7(C) pending imminent guidance on this issue from the Supreme Court. See, e.g., FOIA Update, Sept. 1982, at 6 ("FOIA Counselor: Factoring in the 'Public Interest'"). As a practical matter, even though the D.C. Circuit is the judicial circuit of "universal venue" under the FOIA (which means that any FOIA request can proceed to litigation there if the requester so chooses), see 5 U.S.C. § 552(a)(4)(B), this is the only sensible course under the circumstances.
Indeed, such an administrative approach is entirely consistent with the approach chosen by the D.C. Circuit itself in a number of FOIA cases now before it that involve privacy issues, each of which it recently ordered to "be held in abeyance" pending the Supreme Court's decision in Reporters Committee. See Painting & Drywall Work Preservation Fund, Inc. v. HUD, No. 88-5076 (D.C. Cir. June 6, 1988); NARFE v. Horner, No. 86-5446 (D.C. Cir. May 27, 1988); NTEU v. FDIC, No. 88-5029 (D.C. Cir. May 19, 1988); FLRA v. Department of the Treasury, No. 87-1107 (D.C. Cir. May 11, 1988). Accord Landis v. North American Co., 299 U.S. 248, 254-55 (1936) (when controlling issues are soon to be decided, related matters should be coordinated "efficiently and sensibly").Conclusion
In sum, agency FOIA officers making personal privacy determinations under Exemptions 6 and 7(C) should be mindful of the fact that the D.C. Circuit's novel Reporters Committee decisions have ostensibly altered the fundamental balancing process by which those determinations are made. However, the Supreme Court can be expected to provide necessary clarification of this vital area of FOIA law when it reviews those decisions within the next year. Until then, agencies should not try to apply the D.C. Circuit's new formulation, but rather should continue to make all balancing judgments under Exemptions 6 and 7(C) in the manner in which they traditionally have been made.
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