FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. III, No. 4
1982

To what extent are "public figures" entitled to the privacy protections of the Freedom of Information Act?

The fact that persons have placed themselves in the public eye may indeed lessen their expectations of privacy. See Common Cause v. National Archives & Records Service, 628 F.2d 179, 184 (D.C. Cir. 1980); Lamont v. Department of Justice, 475 F. Supp. 761, 778 (S.D.N.Y. 1979). However, the Court of Appeals for the D.C. Circuit has made it clear that "public figures" are certainly entitled to privacy protection under the FOIA and that disclosure of particularly sensitive information about such persons is appropriate "only where exceptional interests militate in favor of disclosure." Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 1981). Indeed, it must be remembered in gauging the severity of potential privacy invasions under Exemptions 6 and 7(C) that "[t]he degree of intrusion is indeed potentially augmented by the fact that the individual is a well known figure." Fund for Constitutional Government, supra, 656 F.2d at 865. See also Rushford v. Civiletti, 485 F. Supp. 477, 479-80 (D.D.C. 1980), aff'd mem., 656 F.2d 900 (D.C. Cir. 1981). Thus, while it remains possible "under appropriate circumstances that an individual's status as a 'public figure' would tip the 7(C) balance in favor of disclosure," Fund for Constitutional Government, supra, 656 F.2d at 865, such persons surely do not forfeit all rights to privacy by virtue of that status. See also Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978); Ouellette v. Department of the Army, 2 GDS ¶ 82,214 (D.D.C. March 5, 1982).

In balancing personal privacy interests against the public interest under Exemptions 6 and 7(C), can there ever be a public interest compelling nondisclosure?

Yes. Many courts have implicitly recognized a public interest favoring the nondisclosure of personal privacy information, particularly the public interest in avoiding the impairment of ongoing and future law enforcement investigations. See, e.g., Miller v. Bell, 661 F.2d 623, 631 (7th Cir. 1981 ); Church of Scientology v. Department of State, 493 F. Supp. 418, 421 (D.D.C. 1980); Flower v. FBI, 448 F. Supp. 567, 571-72 (W. D. Tex. 1978). More explicitly, the Court of Appeals for the D.C. Circuit in Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 n.22 (D.C. Cir. 1981), specifically recognized that "public interest properly factors into both sides of the balance." See also Martorano v. Department of Justice, 3 GDS ¶ 82,344 (D.D.C. 1982); Holy Spirit Ass'n v. Department of State, 526 F. Supp. 1022, 1034 (S.D.N.Y. 1981). Thus, there is a sound basis in both logic and law for agencies to focus on any public interest served by nondisclosure, to determine the "net" public interest involved, and to determine whether perhaps any public interest factors favoring disclosure "are outweighed by the very significant and tangible public interest" factors favoring nondisclosure. Rushford v. Civiletti, 485 F. Supp. 477, 480 (D.D.C. 1980), aff'd mem., 656 F.2d 900 (D.C. Cir. 1981).

Can the FOIA's privacy exemptions ever be invoked to protect a corporation?

It is well settled that the FOIA's privacy exemptions provide personal privacy protection and cannot be invoked to protect the interests of a corporation or association. See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); National Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976). The only possible exception to this rule is that when a business is actually a closely-held corporation, or some other similarly-constituted business entity, Exemptions 6 and 7(C) may be invoked if disclosure would in effect invade an individual's privacy: "While corporations have no privacy, personal financial information is protected, including information about small businesses when the individual and corporation are identical." Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978), rev'd on other grounds, 602 F.2d 1010 (1st Cir. 1979), cert. denied, 444 U.S. 1071 (1980). See also National Parks, supra, 547 F.2d at 686; cf. Zeller v. United States, 467 F. Supp. 487, 496-99 (E.D.N.Y. 1979).

Can Exemptions 6 and 7(C) be applied to protect the privacy of deceased persons?

No, not directly, but careful consideration should be given to whether such protection can be extended to others. After death, a person no longer possesses privacy rights. See Diamond v. FBI, 532 F. Supp. 216, 227 (S D.N.Y. 1981); but see Kiraly v. FBI, 3 GDS ¶ 82,466 (N.D. Ohio Mar. 15, 1982). However, it is important to note that while privacy rights cannot be inherited by one's heirs, the disclosure of particularly sensitive personal information pertaining to a deceased person may well threaten the privacy interests of surviving family members or other close associates. See, e.g., Lesar v. Department of Justice, 636 F.2d 472, 486-88 (D.C. Cir. 1980); see also Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act at 36 (1967).

Must an agency disclose "mailing list" information to a FOIA requester, even one who evidently intends to use it for commercial purposes?

Although the purpose for which a requester seeks information under the FOIA is generally irrelevant to agency disclosure determinations, it may properly be considered by an agency under Exemptions 6 and 7(C). This is particularly appropriate in connection with requests for lists of names and addresses which can be used for commercial "mailing list" purposes. Unless disclosure of the information sought would invade no privacy interest at all, see, e.g., National Western Life Ins. Co. v. United States, 512 F. Supp. 454, 460-61 (N.D. Tex. 1980) (names and duty stations of postal employees), Exemption 6 case law strongly supports nondisclosure when the information is sought merely for commercial purposes. See Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 137 (3d Cir. 1974); HMG Marketing Associates v. Freeman, 523 F. Supp. 11, 14-15 (S.D.N.Y. 1980). On the other hand, where the request is for a purpose other than commercial exploitation, and there exists a demonstrable public interest in disclosure, the balance may be struck in favor of disclosing "mailing list" information. See, e.g., Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971); Disabled Officers Ass'n v. Rumsfeld, 428 F. Supp. 454, 458 (D.D.C. 1977). The FOIA reform bill approved by the Senate Judiciary Committee would provide express protection under Exemption 6 for "compilations or lists of names and addresses that could be used for solicitation purposes."

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