Vol. II, No. 2
Similar Files: A Concept in Peril
Three recent decisions of the D.C. Circuit have raised concern about government agencies' ability to withhold personal information under Exemption 6 of the Freedom of Information Act (FOIA). The court ordered release of records in situations where the information on its face appeared relatively harmless, despite government assertions that release was likely to have an adverse impact on the individuals. The decisions were not based on a finding that release would not harm the individuals, or that the public interest in disclosure outweighed the harm to the individuals. The D.C. Circuit reasoned that the information was not within its definition of "similar files" which includes only "intimate" or "highly personal" material.OILP STATES POSITION
The Office of Information Law and Policy (OILP) believes these three decisions constitute a radical departure from the accepted interpretation of the phrase "similar files" in 5 U.S.C. § 552(b)(6). This departure could severely weaken federal agencies' ability to protect personal information in their files. Even when personal information is relatively harmless on its face, there are sometimes circumstances in which release may harm individuals. The OILP position is that any recorded information of a personal nature which can be identified to a particular individual, even though not in a "personnel file" or a "medical file," is within Exemption 6's threshold requirement of being a "similar file."
This view is supported by the broad definition given the term "record" in the Privacy Act, 5 U.S.C. § 552a(a)(4), and the explanation of that definition provided by the Office of Management and Budget, the lead agency for Privacy Act matters, in its Privacy Act Guidelines. 40 Fed. Reg. 28951-52 (July 9, 1975).
The question of withholding should turn on whether the release would constitute "a clearly unwarranted invasion of personal privacy." The answer to this question should depend on the nature of the information and all relevant circumstances rather than on the file it was in. OILP believes that the D.C. Circuit's new line of decisions is erroneous as a matter of law and highly undesirable as a matter of policy. Privacy interests have constitutional elements. To release government held information about individuals that may adversely affect them without notice to them and without weighing their interests against those which might be served by a release is a questionable practice. We believe this view is shared by Congress and most courts.TRADE SOURCES NOT "SIMILAR FILES"
The first of the D.C. Circuit's decisions, Bd. of Trade, Etc. v. Commodities Futures Trading Comm'n, 637 F.2d 392 (D.C. Cir. 1980) involved "the identities of 'trade sources' who have supplied information to the Commission concerning the Board's plywood futures contract."
The Commission had solicited information from these "trade sources" under express or implied promises of confidentiality. It released the substance of the comments, but argued that the sources' identities were covered by Exemption 6 since release might well subject them to harassment.
Since all parties agreed that the records were not personnel or medical files, the issue on appeal was whether the records were "similar files." The D.C. Circuit held that they were not. It admitted that there is "some apparent inconsistency in our earlier decisions as to the precise manner of approach to the problem" and then set forth its test for determining whether a given record was a "similar file."
First, to meet the "similar file" test, release of the information must "infringe on some privacy interest." In addition to this reasonable requirement, it added a further test that the interest must be "of the same magnitude--as highly personal or as intimate in nature--as that at stake in personnel and medical records." On the basis of this new requirement, the court concluded that the records were not "similar files" and thus not withholdable under b(6):
To be sure, there may be some slight privacy interest involved here insofar as release of identifying details would expose the occupations of these sources, their relationship to the Board, and how they perceive the workings of the market enterprise from which they derive at least part of their livelihood. But the fact remains that the withheld information associates these individuals with business of the Board, and not with any aspect of their personal lives. The interest in nondisclosure thus asserted is not in continued privacy of personal matters, but in anonymity of criticism on purely commercial matters. Certainly, no fact of an intimate nature is likely to be revealed by providing the Board of Trade with access to the names of those who censured the shipping provisions or proposed alternatives. 627 F.2d at 399-400.The notion that information about an individual's occupational activities is not personal, or not intimate, and thus cannot be protected, of course raises the question why Congress mentioned "personnel files." No immediate release was involved, however, since the court reversed the district court, and held that the records were not within Exemption 4 and remanded for further consideration of that issue. (1)
In September, 1980, the D.C. Circuit handed down two additional decisions which made clear its determination to interpret "similar files" very narrowly. In the first of these, Simpson v. Vance, No. 79-1889 (D.C. Cir. Sept. 25, 1980), the request was for the State Department's Biographic Register. This publication "lists employees of the Department and other federal agencies in the field of foreign relations with their educational backgrounds, employment experience, and essential biographical facts . . . ."
The D.C. Circuit, relying on Board of Trade, held that the Register was not a "similar file":
Although there is no dispute that the information which the Department is withholding relates to the employees' private lives, and therefore some privacy interest is present, that interest is not of the "magnitude" such as those warranting protection in personnel and medical files. Slip op. at 8-9.
It reached this conclusion despite the fact that the information in question was derived primarily from the subjects' personnel files and that the Department had filed affidavits claiming that the reason for withholding the information was to protect the individuals at foreign posts.
Four days later, the D.C. Circuit reached a similar conclusion in Sims v. Central Intelligence Agency, Nos. 79-2203 & 79-2554 (D.C. Cir. Sept. 29, 1980). The CIA had asserted Exemption 6 for the identities of private persons who had unknowingly served as researchers in its MKULTRA program. Again relying on Board of Trade, the court held that this information was not sufficiently intimate to be a "similar file" despite the assertions that release might subject these individuals to risks of ostracism and career detriment. Because there are other issues to be resolved in both Simpson and Sims, e.g. protecting this information under Exemption 3, those decisions have not yet resulted in release.CONGRESS SAW "SIMILAR FILES" AS CATCH-ALL
The sparse legislative history on "similar files" supports a broad interpretation rather than the narrow one now advanced by the D.C. Circuit. The Senate report said "that the scope of the exemption is held within bounds by use of 'clearly unwarranted invasion of personal privacy."'(2) There is no mention of any intent that the phrase "similar files" be interpreted as an additional limitation. It seems clear that Congress intended this phrase as a catch-all since it was not possible to list all the kinds of records the exemption was intended to cover.
These conclusions are reinforced by the House Report which states that Exemption 6 was intended to protect "those files the disclosure of which might harm the individual."(3)ATTORNEY GENERAL'S MEMORANDA
In his initial guidance to federal agencies on the way in which FOIA was to be interpreted, the Attorney General described Exemption 6 as "intended to exclude from the disclosure requirements all personnel and medical files, and all private and personal information contained in other files which, if disclosed to the public, would amount to a clearly unwarranted invasion to the privacy of any person . . . ." (Emphasis added.)(4)
Seven years later, the Attorney General declared that the privacy interest under Exemption 6 "does not extend only to types of information that people generally do not make public. Rather, in the present context it must be deemed generally to include information about an individual which he could reasonably assert an option to withhold from the public at large because of its intimacy or its possible adverse effects upon himself or his family." (Emphasis added.)(5)CASE LAW SUPPORTS BROAD VIEW
Most earlier court decisions do not support the D.C. Circuit's interpretation of "similar files." The majority view was expressed by the Third Circuit in 1974:
We do not believe that the use of the term 'similar' was intended to narrow the Exemption . . . . and permit the release of files which would otherwise be exempt because of the resultant invasion of privacy.(6)
The D.C. Circuit largely ignored this majority view and it focused instead on a group of decisions which can, in limited instances, be read as partially supporting its narrow interpretation. Space does not permit a discussion of all these decisions,(7) but two significant cases are discussed below.
Getman v. N.L.R.B., 450 F. 2d 670 (D.C. Cir. 1971), involved the names and home addresses of employees eligible to vote in certain union elections. The court assumed that these records were similar files but nevertheless ordered release because of its determination that, as a result of counterbalancing public interest factors, release would not be a clearly unwarranted invasion of the employees' personal privacy. In a footnote it indicated that withholding might be justified in response to "[a] request by less well qualified applicants, or applicants with a less carefully designed or more disruptive study . . . ." 450 F. 2d at 677 n.24 This 1971 statement directly contradicts the D.C. Circuit's 1980 view that Getman had "strongly suggested that the requested list of names and addresses failed to qualify as 'similar files.'" Sims, slip op. at 27.
In Getman the D.C. Circuit did state Exemption 6's purpose as being to protect records "which would contain 'intimate details' of a 'highly personal' nature," but it did so in the context of deciding whether release would constitute a clearly unwarranted invasion of personal privacy, not in an interpretation of "similar files." Certainly nothing in that statement conflicts with a reading of "similar files" as encompassing all personal information in government files. Satisfying these threshold requirements does not automatically mean that the records can be withheld. The agency still must determine whether release would be a "clearly unwarranted invasion of personal privacy." As the Senate Report indicates, it is this latter analysis which should serve as the limiting factor on what is withheld.D.C. CIRCUIT RELIES ON ROSE
The D.C. Circuit also relied heavily on the Supreme Court's discussion in Dept. of Air Force v. Rose, 425 U.S. 352 (1976). The records requested were case summaries of Honor and Ethics Code adjudications at the Air Force Academy. The Supreme Court clearly did not reach a definitive holding as to what constitutes a similar file. Rather it concluded, with very little discussion, that:
[t]he attributes of the case summaries require that they be characterized as 'similar files.' First, they relate to the discipline of cadet personnel . . . . Second, and most significantly, the disclosure of these summaries implicates similar [presumably to a personnel file] privacy values . . . .It did not indicate that these attributes were the only ones which would meet the "similar files" requirement. Moreover, the decision as a whole seems to indicate that the "privacy values" which the Court was concerned with balancing were not those which were "intimate" or "highly personal" in the ordinary sense of such terms, but rather those which were rooted in the possible adverse effects on the cadets' future careers. IMPLICATIONS OF D.C. CIRCUIT RULINGS
The first implication of the D.C. Circuit's decisions is that they result in a paradox. Information, no matter how innocuous, which is contained in a personnel or medical file is eligible for possible withholding under Exemption 6 in that it meets the exemption's threshold requirement. The same information, however, will not meet this requirement if it is found in a file which does not qualify as "similar" under the narrow definition contained in these decisions.
More significantly, this narrow definition means that for much of the personal information in files, agencies will be prohibited from asserting Exemption 6 on the basis of the impact release might have on the individuals involved. For example, in Simpson the D.C. Circuit apparently considered it irrelevant whether the State Department was correct in its assertion that release of the Register would greatly increase the possibility of terrorist actions against some of the persons listed. In addition, the court's emphasis on the similarity of "files" is inconsistent with the clear shift of attention and emphasis by both Congress and other courts from "files" to "records" to "portions" of records.
The Congressional purpose in including Exemption 6 in FOIA was to protect individuals from clearly unwarranted invasions of personal privacy. Under the balancing test, the seriousness of the invasion is weighed against any public interest in the release. Congress also relied on this principle in its meshing of the Privacy Act and FOIA.(8)
In summary it should be reemphasized that the broad reading of "similar files" will not result in the withholding of all personal information in federal agencies' records. Agencies will still have to determine, first, that release would be an invasion of privacy, and, second, that any such invasion would be clearly unwarranted after the required balancing. But agencies would be able to protect the personal privacy of individuals about whom they have personal information from unjustified harm no matter what files the information is in.
The right to privacy is fundamental in American social, political, and legal history. Congress clearly meant to protect privacy in FOIA by Exemption 6 and that exemption should not be read so narrowly as to place this value in peril.
1. On remand there was a stipulated dismissal with prejudice. No. 77-0560 (D.D.C. 1980). Thus, no records were ever disclosed.
2. S. Rep. No. 813, 89th Cong., 1st Sess. (1965), reprinted in Freedom of Information Act Source Book: Legislative Materials, Cases, Articles. S. Doc. No. 93-82, 93rd Cong. 2d Sess. (1974) (subsequently referred to as Source Book). The quoted language appears at 44 of the Source Book.
3 H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966). Source Book at 32.
4. Attorney General's Memorandum on the Public Information Section of the Administrative Procedures Act (1967) at 36.
5. Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act (1975) at 9-10. The 1974 Amendments did not amend Exemption 6. This statement appears in a discussion of Exemption 7(C), which protects investigatory records compiled for law enforcement purposes when would constitute an unwarranted invasion of personal privacy.
6. Wine Hobby USA, Inc. v. United States Internal Rev. Serv., 502 F2d 133, 135 (3rd Cir. 1974). Accord, e.g., Madiera Nursing, Etc. v. N.L.R.B. Region No. 9, 615 F.2d 728 (6th Cir. 1980): Pacific Molasses Co. v. N.L.R.B., Etc., 577 F.2d 11172 (5th Cir. 1978); Committee on Masonic Homes, Etc. v. N.L.R.B., 566 F.2d 214 (3rd Cir. 1977); Campbell v. United States Civil Service Commission, 539 F.2d 58 (10th Cir. 1976).
7. The decisions not discussed at Ditlow v. Schultz, 517 F.2d 166 (D.C. Cir. 1976); Rural Housing Alliance v. Department of Ag., 498 F.2d 73 (D.C. Cir. 1974); and Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973).
8. See, e.g., 120 Cong. Rec. 40884 (remarks of Rep. Moorhead). The types of information with which the Privacy Act are concerned clearly are not limited to those files which would satisfy the D.C. Circuit's restrictive interpretation of similar files. See, 5 U.S.C. § 552a(a)(4).
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