Exemption 6
https://ecf.dcd.uscourts.gov/doc1/04514897930
Department of Justice Guide to the Freedom of Information Act 417
Exemption 6
Personal privacy interests are protected by two provisions of the Freedom of
Information Act, Exemptions 6 and 7(C).1 Under the FOIA, "privacy encompass[es] the
individual's control of information concerning his or her person."2 Exemption 6 protects
information about individuals in "personnel and medical files and similar files" when the
disclosure of such information "would constitute a clearly unwarranted invasion of personal
privacy."3 Exemption 7(C), discussed below, is limited to information compiled for law
enforcement purposes, and protects personal information when disclosure "could reasonably
be expected to constitute an unwarranted invasion of personal privacy."4
Introduction
In order to determine whether Exemption 6 protects against disclosure, an agency
should engage in the following two lines of inquiry: first, determine whether the information
at issue is contained in a personnel, medical, or "similar" file covered by Exemption 6; and, if
so, determine whether disclosure "would constitute a clearly unwarranted invasion of personal
privacy" by balancing the privacy interest that would be compromised by disclosure against
any public interest in the requested information. 5
When engaging in this analysis, it is
important to remember that the Court of Appeals for the District of Columbia Circuit has
declared that "'under Exemption 6, the presumption in favor of disclosure is as strong as can
1
5 U.S.C. § 552(b)(6), (7)(C) (2006), amended by OPEN Government Act of 2007, Pub. L. No.
110-175, 121 Stat. 2524; see also Presidential Memorandum for Heads of Executive
Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683
(Jan. 21, 2009) (emphasizing that the Freedom of Information Act reflects a "profound national
commitment to ensuring an open Government" and directing agencies to "adopt a
presumption in favor of disclosure"); accord Attorney General Holder's Memorandum for Heads
of Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19,
2009), available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf; FOIA Post, "OIP
Guidance: President Obama's FOIA Memorandum and Attorney General Holder's FOIA
Guidelines - Creating a New Era of Open Government" (posted 4/17/09).
2
DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989).
3
5 U.S.C. § 552(b)(6).
4
5 U.S.C. § 552(b)(7)(C).
5
See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.
DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007). 418 Exemption 6
be found anywhere in the Act.'"6 Additionally, it is important to keep in mind that Exemption
6 cannot be invoked to withhold from a requester information pertaining only to himself.7
To warrant protection under Exemption 6, information must first meet its threshold
requirement; in other words, it must fall within the category of "personnel and medical files
and similar files."8 Once it has been established that information meets the threshold
requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records
at issue "would constitute a clearly unwarranted invasion of personal privacy."9 This requires
a balancing of the public's right to disclosure against the individual's right to privacy.10 First,
it must be ascertained whether a protectible privacy interest exists that would be threatened
by disclosure.11 If no privacy interest is found, further analysis is unnecessary and the
6 Multi Ag, 515 F.3d at 1227 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,
32 (D.C. Cir. 2002)); see also Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554
F.3d 1046, 1057 (D.C. Cir. 2009) (stating that FOIA's "presumption favoring disclosure . . . is at
its zenith under Exemption 6”); Lawyers' Comm. for Civil Rights of S.F. Bay Area v. Dep't of
the Treasury, No. 07-2590, 2008 WL 4482855, at *20 (N.D. Cal. Sept. 30, 2008) ("The burden
remains on the agency to justify any withholdings under Exemption 6 since the presumption
in favor of disclosure under this exemption is as strong as that with other exemptions.").
7 See Reporters Comm., 489 U.S. at 771 (citing DOJ v. Julian, 486 U.S. 1, 13-14 (1988)); Dean
v. FDIC, 389 F. Supp. 2d 780, 794 (E.D. Ky. 2005) (stating that "to the extent that the
defendants have redacted the 'name, address, and other identifying information' of the plaintiff
himself in these documents . . . reliance on Exemption 6 or 7(C) would be improper"); H.R. Rep.
No. 93-1380, at 13 (1974); see also FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Under
the Supreme Court's Reporters Committee Decision") (advising that, as a matter of sound
administrative practice, "[a]n agency will not invoke an exemption to protect a requester from
himself").
8
5 U.S.C. § 552(b)(6).
9
Id.
10 See Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Berger v. IRS, 288 F. App'x 829,
832 (3d Cir. 2008) ("To determine whether the exemption applies, courts balance the public
interest in disclosure against the privacy interest protected by the exemption."); Fund for
Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981); see
also Seized Prop. Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 56
(D.D.C. 2007) ("In determining whether the release of requested information constitutes a
'clearly unwarranted invasion of personal privacy,' the court must balance the individual's right
to privacy against the public's interest in disclosure.") (Exemptions 6 and 7(C)), appeal
dismissed, No. 07-5287, 2007 WL 2910069 (D.C. Cir. Oct. 5, 2007).
11 Multi Ag, 515 F.3d at 1229 ("The balancing analysis for FOIA Exemption 6 requires that
we first determine whether disclosure of the files 'would compromise a substantial, as
opposed to de minimis, privacy interest[.]''' (quoting Nat'l Ass'n of Retired Fed. Employees v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))).
Introduction 419
information at issue must be disclosed.12
On the other hand, if a privacy interest is found to exist, the public interest in
disclosure, if any, must be weighed against the privacy interest in nondisclosure.13 If no
public interest exists, the information should be protected; as the D.C. Circuit has observed,
"something, even a modest privacy interest, outweighs nothing every time."14 If there is a
public interest in disclosure that outweighs the privacy interest, the information should be
disclosed; if the opposite is found to be the case, the information should be withheld.15
12 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest is
implicated . . . FOIA demands disclosure'" (quoting Nat'l Ass'n of Retired Fed. Employees v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984);
Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)
(concluding that no balancing analysis was required "due to the Court's determination that
the [defendant] has failed to meet its heavy burden on the issue of whether disclosure will
invade the inspectors' privacy"); Trentadue v. President's Council on Integrity & Efficiency, No.
03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that agency made no showing of
privacy interest, so names of government employees should be released) (Exemptions 6 and
7(C)); Holland v. CIA, No. 91-1233, 1992 WL 233820, at *16 (D.D.C. Aug. 31, 1992) (stating that
information must be disclosed when there is no significant privacy interest, even if public
interest is also de minimis).
13 See Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009) ("'Only where a privacy
interest is implicated does the public interest for which the information will serve become
relevant and require a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d
503, 509 (2d Cir. 1992))); see also NARA v. Favish, 541 U.S. 157, 171 (2004) ("The term
'unwarranted' requires us to balance the family's privacy interest against the public interest
in disclosure.") (Exemption 7(C)); see also Ripskis, 746 F.2d at 3.
14 Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); see
also Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (perceiving
no public interest in disclosure and therefore protecting employees' social security numbers);
Schoenman v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Carter, Fullerton & Hayes LLC v.
FTC, 520 F. Supp. 2d 134, 144-45 (D.D.C. 2007); Seized Prop. Recovery, 502 F. Supp. 2d at 56
("If no public interest is found, then withholding the information is proper, even if the privacy
interest is only modest.") (Exemptions 6 and 7(C)).
15 See DOD v. FLRA, 510 U.S. 487, 497 (1994) ("We must weigh the privacy interest . . . in
nondisclosure . . . against the only relevant public interest in the FOIA balancing analysis –
the extent to which disclosure of the information sought would 'she[d] light on an agency's
performance of its statutory duties' or otherwise let citizens 'know what their government is
up to.'" (quoting Reporters Comm., 489 U.S. at 773); Multi Ag, 515 F.3d at 1228 (noting that if
requested information falls within Exemption 6, the next step in the analysis is to determine
whether "disclosure would constitute a clearly unwarranted invasion of personal privacy . . .
[by] balanc[ing] the privacy interest that would be compromised by disclosure against any
public interest in the requested information"); News-Press, 489 F.3d at 1205 ("In order to affirm
withholding the addresses, we would have to find that the privacy interests against
disclosure are greater than the public interest in disclosure."); see also FOIA Update, Vol. X,
(continued...) 420 Exemption 6
Threshold: Personnel, Medical and Similar Files
Information meets the threshold requirement of Exemption 6 if it falls within the
category of "personnel and medical files and similar files."16 Personnel and medical files are
easily identified, but what constitutes a "similar file" warrants more analysis. In United States
Department of State v. Washington Post Co.,17 the United States Supreme Court held, based
upon a review of the legislative history of the FOIA, that Congress intended the term "similar
files" to be interpreted broadly, rather than narrowly. 18 The Court stated that the protection
of an individual's privacy "surely was not intended to turn upon the label of the file which
contains the damaging information." 19 Rather, the Court made clear that all information that
"applies to a particular individual" meets the threshold requirement for Exemption 6
protection.20 Conversely, the threshold of Exemption 6 has been found not to be met when the
15(...continued)
No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking")
(outlining mechanics of balancing process).
16 5 U.S.C. § 552(b)(6).
17 456 U.S. 595 (1982).
18 Id. at 599-603 (citing H.R. Rep. No. 89-1497, at 11 (1966); S. Rep. No. 89-813, at 9 (1965);
S. Rep. No. 88-1219, at 14 (1964)).
19 Id. at 601 (citing H.R. Rep. No. 89-1497, at 11 (1966)); see Judicial Watch, Inc. v. FDA, 449
F.3d 141, 152 (D.C. Cir. 2006) ("The Supreme Court has read Exemption 6 broadly, concluding
the propriety of an agency's decision to withhold information does not 'turn upon the label of
the file which contains the damaging information.'" (quoting Wash. Post, 456 U.S. at 601)).
20 456 U.S. at 602; see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554
F.3d 1046, 1050 (D.C. Cir. 2009) ("It is undisputed that the requested Medicare records are
personnel, medical, or 'similar files.'"); Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir.
2009) (finding that records applying to detainees whose family members seek protection are
"similar files," explaining that "[t]he phrase 'similar files' has a broad meaning and
encompasses the government's records on an individual which can be identified as applying
to that individual"); Berger v. IRS, 288 F. App'x 829 (3d Cir. Aug. 11, 2008) ("[Revenue Officer's]
time records are a personal recording of the time expended as an employee and therefore can
be identified as applying to her."); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1024 (9th Cir. 2008) (stating that the threshold test of Exemption 6 is satisfied
when government records contain information applying to particular individuals); Pierce v.
U.S. Air Force, 512 F.3d 184, 191 (5th Cir. 2007) ("To qualify as a 'similar file' under Exemption
6 . . . the information need only 'appl[y]' to the individual."), cert. denied, 128 S. Ct. 2092 (2008);
Wood v. FBI, 432 F.3d 78, 86-87 (2d Cir. 2005) (recognizing that personal information about
government investigators appearing in investigative records are "similar files"); Lakin Law
Firm, P.C. v. FTC, 352 F.3d 1122, 1123 (7th Cir. 2003) (finding that consumer complaints filed
with the FTC "clearly fall[] within the exemption"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy,
584 F. Supp. 2d 94, 96 (D.D.C. 2008) (finding that patient admission records clearly qualify as
"similar files"); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d at 144-45 (D.D.C. 2007)
(continued...)
Threshold: Personnel, Medical and Similar Files 421
information cannot be linked to a particular individual,21 or when the information pertains to
federal government employees but is not personal in nature.22
20(...continued)
(concluding that the FTC met the threshold requirement for Exemption 6 protection regarding
the names, addresses, and phone numbers of consumers who filed complaints "[s]ince each
piece of information withheld by defendants applies to specific individuals"); Yonemoto v. VA,
No 06-328, 2007 WL 1310165, at *2 (D. Haw. May 2, 2007) (stating that "[i]ntra-agency emails
often qualify as 'similar files' under Exemption 6," but concluding that records are not "similar
files" when they have "an essentially business nature" or pertain to business relationships),
appeal dismissed and remanded, 305 F. App'x 333 (9th Cir. 2008); Bigwood v. USAID, 484 F.
Supp. 2d 68, 76 (D.D.C. 2007) ("[T]he organizational identity of USAID grantees is information
which the Court concludes in this case 'applies to a particular individual,' and thus the records
requested are 'similar files' which may be protected from disclosure by Exemption 6 of the
FOIA."); Associated Press v. DOJ, No. 06-1758, 2007 WL 737476, at *6 (S.D.N.Y. Mar. 7, 2007)
(finding that petition for reduction in sentence "contains personal information in which
[Requester] has a privacy interest under the 'similar files' requirement of Exemption 6"), order
aff'd, 549 F.3d 62 (2d Cir. 2008) (Exemptions 6 and 7(C)); MacLean v. U.S. Dep't of Army, No.
05-1519, 2007 WL 935604, at *14 (S.D. Cal. Mar. 6, 2007) ("The phrase, 'similar files,' is to be
given a broad meaning, and it may apply even if the files at issue 'are likely to contain much
information about a particular individual that is not intimate.'" (quoting Wash. Post, 456 U.S.
at 598-600)); In Def. of Animals v. HHS, No. 99-3024, 2001 WL 34871354, at *4 (D.D.C. Sept. 28,
2001) (recognizing that names of research foundation members are "similar files"); Hecht v.
USAID, No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) ("We do not think that
Congress meant to limit Exemption 6 to a narrow class of files containing only a discrete kind
of personal information.").
21 See, e.g., Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding
no protection under Exemption 6 for list of drugs ordered for use by some members of large
group); In Def. of Animals v. NIH, 543 F. Supp. 2d 70, 80 (D.D.C. 2008) (concluding that
information related to a primate facility building does not meet the threshold of Exemption 6
because it "is not associated with any particular individual"); Na Iwi O Na Kupuna v. Dalton,
894 F. Supp. 1397, 1413 (D. Haw. 1995) (same for records pertaining to large group of Native
Hawaiian human remains) (reverse FOIA case).
22 Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008) ("Correspondence does not become
personal solely because it identifies government employees."); Leadership Conference on Civil
Rights v. Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005) (finding that the names and work
telephone numbers of Justice Department paralegals do not meet the threshold for Exemption
6 on the basis that information is not "similar to a 'personnel' or 'medical' file"), motion to amend
denied, 421 F. Supp. 2d 104, 107-10 (D.D.C. 2006), appeal dismissed voluntarily, No. 06-5055,
2006 WL 1214937 (D.C. Cir. Apr. 28, 2006); Gordon v. FBI, 390 F. Supp. 2d 897, 902 (N.D. Cal.
2004) (deciding that names of agency employees are not personal information about those
employees that meets Exemption 6 threshold), summary judgment granted, 388 F. Supp. 2d
1028, 1040-42 (N.D. Cal. 2005) (concluding that Exemption 6 does not apply to the names of
agency's "lower-level" employees, and likewise opining that "[t]he [agency] still has not
demonstrated that an employee's name alone makes a document a personnel, medical or
'similar file'"); Darby v. U.S. Dep't of the Air Force, No. 00-0661, slip op. at 10-11 (D. Nev. Mar.
(continued...) The D.C. Circuit, sitting en banc, subsequently reinforced the Supreme Court's broad
interpretation of this term by holding that a tape recording of the last words of the Space
Shuttle Challenger crew, which "reveal[ed] the sound and inflection of the crew's voices
during the last seconds of their lives . . . contains personal information the release of which
is subject to the balancing of the public gain against the private harm at which it is
purchased."23 Not only did the D.C. Circuit determine that "lexical" and "non-lexical"
information are subject to identical treatment under the FOIA,24 it also concluded that
Exemption 6 is equally applicable to the "author" and the "subject" of a file.25
Once it has been established that information meets the threshold requirement of
Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue
"would constitute a clearly unwarranted invasion of personal privacy" which requires a
balancing of the privacy interest that would be compromised by disclosure against any public
interest in the requested information.26 Thus, the next step in the Exemption 6 analysis is
determining the privacy interests at issue.27
22(...continued)
1, 2002) (rejecting redaction of names in IG report on basis that such documents "are not
'personnel or medical files[,]' nor are they 'similar' to such files"), aff'd on other grounds sub
nom. Darby v. DOD, 74 F. App'x 813 (9th Cir. 2003); Providence Journal Co. v. U.S. Dep't of the
Army, 781 F. Supp. 878, 883 (D.R.I. 1991) (finding investigative report of criminal charges not
to be "similar file," on basis that it was "created in response to specific criminal allegations"
rather than as "regularly compiled administrative record"), modified & aff'd on other grounds,
981 F.2d 552 (1st Cir. 1992); Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 14 (D.D.C. 1990)
(opining that information pertaining to an employee's compliance with agency regulations
regarding outside employment "does not go to personal information . . . [e]ven in view of the
broad interpretation [of Exemption 6] enunciated by the Supreme Court").
23 N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); see Forest
Guardians v. FEMA, 410 F.3d 1214, 1218 (10th Cir. 2005) (finding that electronic Geographic
Information System files containing "specific geographic location" of structures are "similar
files"); Judicial Watch, Inc. v. USPS, No. 03-655, slip op. at 6 (D.D.C. Feb. 23, 2004) (assuming
that audio portions of videotape are "similar files"), appeal dismissed voluntarily, No. 04-5153
(D.C. Cir. Aug. 25, 2004); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003)
(finding that requested videotapes "contain identifiable audio and video images of individual
residents," and concluding that they are "similar files").
24 N.Y. Times Co., 920 F.2d at 1005; see also Webster's II New Riverside University
Dictionary 689 (1994) (defining the term lexical as "[o]f or pertaining to the vocabulary, words,
or morphemes of a language").
25 Id. at 1007-08.
26 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.
DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007).
27 See FOIA Update, Vol. X, No. 2, at 7 ("Exemption 6 and Exemption 7(C): Step by Step
Decisionmaking").
422 Exemption 6 Privacy Interest 423
Privacy Interest
The relevant inquiry regarding the assessment of privacy interests at issue is whether
public access to the information at issue would violate a viable privacy interest of the subject
of such information.28 It is important to note at the outset that the Supreme Court has declared
that the privacy interest inherent in Exemption 6 "belongs to the individual, not the agency
holding the information."29 In the landmark FOIA decision in United States Department of
Justice v. Reporters Committee for Freedom of the Press, which governs all privacy-protection
Decision making under the FOIA, the Supreme Court stressed that "both the common law and
the literal understandings of privacy encompass the individual's control of information
concerning his or her person." 30 In NARA v. Favish the Court likewise drew upon the common
law to find the principle of "survivor privacy" encompassed within the Act's privacy
exemptions.31 Indeed, in Reporters Committee the Court found a "strong privacy interest" in
the nondisclosure of records of a private citizen's criminal history, "even where the information
may have been at one time public." 32 The Supreme Court has also held that information need
28 See Schell v. HHS, 843 F.2d 933, 938 (6th Cir. 1988); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir.
1984).
29 See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989)
(emphasizing that privacy interest belongs to individual, not agency holding information
pertaining to individual); Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v. FAA, 218 F. App'x
479, 482 (6th Cir. 2007) ("[S]ome courts have concluded that where personal privacy interests
are implicated, only the individual who owns such interest may validly waive it."); Sherman
v. U.S. Dep't of the Army, 244 F.3d 357, 363-64 (5th Cir. 2001) (protecting social security
numbers of soldiers even though Army publicly disclosed SSNs in some circumstances,
because individuals rather than government hold privacy interest in that information); Amuso
v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("The privacy interest at stake belongs to the
individual, not the agency."); Cozen O'Connor v. Dep't of Treasury, 570 F. Supp. 2d 749, 781
(E.D. Pa. 2008) ("The focus of the exemption is the individual's interest, not the government's.").
30 489 U.S. at 763 (holding "rap sheets" are entitled to protection under Exemption 7(C) and
setting forth five guiding principles that govern the process by which determinations are
made under both Exemptions 6 and 7(C)).
31 541 U.S. 157, 165-70 (2004) ([T]he concept of personal privacy . . . is not some limited or
'cramped notion' of that idea.") (Exemption 7(C)); see also FOIA Post, "Supreme Court Rules for
'Survivor Privacy' in Favish" (posted 4/9/04) (highlighting breadth of privacy protection
principles in Supreme Court's decision).
32 489 U.S. at 762, 764, 767, 780 (establishing a "practical obscurity" standard, observing that
if such items of information actually "were 'freely available,' there would be no reason to invoke
the FOIA to obtain access to" them); see also DOD v. FLRA, 510 U.S. 487, 500 (1994) (finding
privacy interest in federal employees' home addresses even though they "often are publicly
available through sources such as telephone directories and voter registration lists"); FOIA
Update, Vol. X, No. 2, at 4 ("OIP Guidance: Privacy Protection Under the Supreme Court's
Reporters Committee Decision"). 424 Exemption 6
not be intimate or embarrassing to qualify for Exemption 6 protection.33 Generally, privacy
interests cognizable under the FOIA are found to exist in such personally identifying
information as a person's name, address, phone number, date of birth, criminal history,
medical history, and social security number.34
In some circumstances a FOIA request can be narrowly targeted so that by its very
terms it is limited to privacy-sensitive information pertaining to an identified or identifiable
individual. In such circumstances, redaction would not be adequate to protect the personal
privacy interests at risk,35 and an agency may have to invoke the "Glomar" response, i.e.,
33 See Dep't of State v. Wash. Post Co., 456 U.S. 595, 600 (1982); Horowitz v. Peace Corps,
428 F.3d 271, 279 (D.C. Cir. 2005) ("Even seemingly innocuous information can be enough to
trigger the protections of Exemption 6."); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879
F.2d 873, 875 (D.C. Cir. 1989) [hereinafter NARFE]; People for the Am. Way Found. v. Nat'l Park
Serv., 503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("The privacy interest in nondisclosure
encompasses an individual's control of personal information and is not limited to that of an
embarrassing or intimate nature."); Knight v. NASA, No. 2:04-2054, 2006 WL 3780901, at *5
(E.D. Cal. Dec. 21, 2006) ("Information need not be intimate or embarrassing to qualify for
exemption under subdivision (b)(6)."); Appleton v. FDA, 451 F. Supp. 2d 129, 145 (D.D.C. 2006)
("Individuals have a privacy interest in personal information even if it is not of an embarrassing
or intimate nature.").
34 See Wash. Post Co., 456 U.S. at 600 (finding that "[i]nformation such as place of birth, date
of birth, date of marriage, employment history, and comparable data is not normally regarded
as highly personal, and yet . . . such information . . . would be exempt from any disclosure that
would constitute a clearly unwarranted invasion of personal privacy"); Associated Press v.
DOJ, 549 F.3d 62, 65 (2d Cir. 2008) ("Personal information, including a citizen's name, address,
and criminal history, has been found to implicate a privacy interest cognizable under the FOIA
exemptions.") (Exemptions 6 and 7(C)); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584 F. Supp.
2d 94, 96 (D.D.C. 2008) ("Records . . . indicating that individuals sought medical treatment at
a hospital are particularly sensitive."); Yelder v. DOD, 577 F. Supp. 2d 342, 346 (D.D.C. 2008)
(noting that information such as names, addresses, and other personally identifying
information creates a palpable threat to privacy); People for the Am. Way Found., 503 F. Supp.
2d at 304, 306 (stating that "[f]ederal courts have previously recognized a privacy interest in
a person's name and address" and concluding that "[g]enerally, there is a stronger case to be
made for the applicability of Exemption 6 to phone numbers and addresses"); Seized Prop.
Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 58 (D.D.C. 2007) (finding
that individuals have a privacy interest in the nondisclosure of their names and addresses
when release "would automatically associate the individuals" with seizures conducted by
Customs and the information is linked to financial information) (Exemptions 6 and 7(C)).
35 See, e.g., Hunt v. FBI, 972 F.2d 286, 288 (9th Cir. 1992) (holding that "public availability"
of an accused FBI agent's name does not defeat privacy protection and "would make
redactions of [the agent's name in] the file a pointless exercise"); MacLean v. DOD, No. 04
2425, slip op. at 18 (S.D. Cal. June 2, 2005) (pointing out that deletion of identity of named
subject of request from professional responsibility file "would be pointless") (Exemptions 6 and
7(C)); Buckley v. Schaul, No. 03-03233, slip op. at 9 (W.D. Wash. Mar. 8, 2004) (finding that
even with redactions, the "disclosure of investigative files coupled with the public availability
(continued...) Privacy Interest 425
neither confirm nor deny the existence of any responsive records.36 (For a detailed explanation
of the Glomar response and its use in protecting privacy interests in law enforcement records,
see the discussion under Exemption 7(C), below.)
Initially, it must be determined "whether disclosure of the files 'would compromise a
substantial, as opposed to de minimis, privacy interest,' because 'if no significant privacy
interest is implicated . . . FOIA demands disclosure.'"37 The Court of Appeals for the District
of Columbia Circuit has explained that, in the FOIA context, when assessing the weight of a
protectible privacy interest, "[a] substantial privacy interest is anything greater than a de
minimis privacy interest." 38 When a substantial privacy interest is found, the inquiry under
the privacy exemptions is not finished, it is only advanced to "'address the question whether
35(...continued)
of Plaintiff's FOIA request naming [regional counsel]" would not adequately protect privacy
interests) (Exemptions 6 and 7(C)); Claudio v. SSA, No. H-98-1911, 2000 WL 33379041, at *8
(S.D. Tex. May 24, 2000) (observing that redaction of documents concerning named subject
"would prove meaningless"); Mueller v. U.S. Dep't of the Air Force, 63 F. Supp. 2d 738, 744 (E.D.
Va. 1999) (noting that when requested documents relate to a specific individual, "deleting
[her] name from the disclosed documents, when it is known that she was the subject of the
investigation, would be pointless"); Chin v. U.S. Dep't of the Air Force, No. 97-2176, slip op. at
5 (W.D. La. June 24, 1999) (observing that deletion of identifying information "fails to protect
the identity of [the individual] who is named in the FOIA request"), aff'd per curiam, No. 99
31237 (5th Cir. June 15, 2000); Cotton v. Adams, 798 F. Supp. 22, 27 (D.D.C. 1992) (determining
that releasing any portion of the documents would "abrogate the privacy interests" when the
request is for documents pertaining to two named individuals); Schonberger v. Nat'l Transp.
Safety Bd., 508 F. Supp. 941, 945 (D.D.C. 1981) (stating that no segregation was possible when
request was for one employee's file), aff'd, 672 F.2d 896 (D.C. Cir. 1981) (unpublished table
decision).
36 See Claudio, 2000 WL 33379041, at *8-9 (affirming agency's refusal to confirm or deny
existence of any record reflecting any investigation of administrative law judge) (Exemption
6).
37 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008) (quoting NARFE, 879
F.2d at 874); see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d
1046, 1050 (D.C. Cir. 2009) ("[W]e must determine whether 'disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest.'" (quoting NARFE, 879 F.2d at 874));
Associated Press v. DOD, 554 F.3d 274, 285 (2d Cir. 2009) ("Thus, 'once a more than de minimis
privacy interest is implicated the competing interests at stake must be balanced in order to
decide whether disclosure is permitted under FOIA.'" (quoting FLRA v. VA, 958 F.2d 503, 510
(2d Cir. 1992))).
38 Multi Ag, 515 F.3d at 1229-30; see, e.g., Barnard v. DHS, 598 F. Supp. 2d 1, 11 (D.D.C.
2009); Schoenman v. FBI, 576 F. Supp. 2d 3, 9 (D.D.C. 2008); Unidad Latina En Accion v. DHS,
253 F.R.D. 44, 48 (D. Conn. 2008); Schoenman v. FBI, 573 F. Supp. 2d 119, 148 (D.D.C. 2008);
Schoenman v. FBI, 575 F. Supp. 2d 136, 160 (D.D.C. 2008). 426 Exemption 6
the public interest in disclosure outweighs the individual privacy concerns.'"39 Thus, as the
D.C. Circuit has held, "a privacy interest may be substantial -- more than de minimis -- and yet
be insufficient to overcome the public interest in disclosure."40
The D.C. Circuit has also emphasized the practical analytical point that under the
FOIA's privacy-protection exemptions, "[t]he threat to privacy . . . need not be patent or
obvious to be relevant." 41 At the same time, courts have found that the threat to privacy must
be real rather than speculative.42 In National Ass'n of Retired Federal Employees v. Horner
[hereinafter NARFE], the D.C. Circuit explained that the "relevant point" of its prior holding in
Arieff v. United States Department of the Navy was that "mere speculation" of an invasion of
privacy "is not itself part of the invasion of privacy contemplated by Exemption 6."43 The
39 Multi Ag, 515 F.3d at 1230 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,
35 (D.C. Cir. 2002)); see, e.g., Consumers' Checkbook, 554 F.3d at 1050 ("If a substantial privacy
interest is at stake, then we must balance the privacy interest in nondisclosure against the
public interest."); Associated Press v. DOJ, 549 F.3d at 66 ("Notwithstanding a document's
private nature, FOIA may nevertheless require disclosure if the requester can show that
revelation of the contents of the requested document would serve the public interest."); Scales
v. EOUSA, 594 F. Supp. 2d 87, 90 (D.D.C. 2009) ("Given the significant individual privacy
interest, disclosure of 7(C) material is warranted only when the individual's interest in privacy
is outweighed by the public's interest in disclosure.") (Exemption 7(C)).
40 Multi Ag, 515 F.3d at 1230-33 (finding that the significant public interest in disclosure of
the databases outweighs the "greater than de minimis" privacy interest of individual farmers).
41 Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808, 809 (D.C. Cir.
1978) (per curiam) (ruling that district court improperly refused to look beyond face of
document at issue (i.e., to proffered in camera explanation of harm), which led it to fail to
recognize underlying sensitivity).
42 See Dep't of the Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976) ("The legislative history
is clear that Exemption 6 was directed at threats to privacy interests more palpable than mere
possibilities."); ACLU v. DOD, 543 F.3d 59, 85-86 (2d Cir. 2008) ("Even accepting [defendants']
argument that it may be 'possible' to identify the detainees in spite of the district court's
redactions, or that there remains a 'chance' that the detainees could identify themselves . . .
such speculation does not establish a privacy interest that surpasses a de minimis level for
the purposes of a FOIA inquiry.") (Exemptions 6 and 7(C)), application to extend time to file
petition for cert. granted, No. 08A1068 (J. Ginsburg, May 29, 2009); Carter v. U.S. Dep't of
Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987) (stating that "[w]ithholding information to
prevent speculative harm" is contrary to the FOIA's pro-disclosure policy); Arieff v. U.S. Dep't
of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding that Exemption 6 did not apply
when there was only a "'mere possibility'" that the medical condition of a particular individual
would be disclosed by releasing a list of pharmaceuticals supplied to a congressional doctor
(quoting Rose, 425 U.S. at 380 n.19)); Cawthon v. DOJ, No. 05-0567, 2006 WL 581250, at *3
(D.D.C. Mar. 9, 2006) ("To justify its exemption 6 withholdings, the defendant must show that
the threat to employees' privacy is real rather than speculative.").
43 879 F.2d at 878 (citing Arieff, 712 F.2d at 1468); see also ACLU v. DOD, 543 F.3d at 86
(continued...)
Privacy Interest 427
NARFE court went on to explain that "[f]or the Exemption 6 balance to be implicated, there
must, of course, be a causal relationship between the disclosure and the threatened invasion
of privacy."44
In Favish, the Supreme Court unanimously found that the surviving family members of
a former Deputy White House Counsel had a protectible privacy interest in his death-scene
photographs, based in part on the family's fears of "intense scrutiny by the media."45 Pointing
out that the surviving relatives invoked their own "right and interest to personal privacy,"46 the
Court held "that FOIA recognizes surviving family members' right to personal privacy with
respect to their close relative's death-scene images."47 Relying upon case law and cultural
traditions, the Court concentrated on "the right of family members to direct and control
disposition of the body of the deceased" and noted the right of family members "to limit
43(...continued)
(stating that "because the district court has redacted the Army photos to remove all
identifying features, there is no cognizable privacy interest at issue in the release of the Army
photos"); Hall v. DOJ, 552 F. Supp. 2d 23, 30 (D.D.C. 2008) (finding that DOJ failed to
demonstrate that there is a real threat to employees' privacy, concluding that "DOJ merely
asserts, in vague and conclusory fashion, that the redacted information relates to a small
group of employees and that release of the redacted information will lead to identification and
harassment"); United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 47 (D.D.C. 2008) ("A 'bare
conclusory assessment' that public disclosure of an employee's name would constitute an
invasion of personal privacy is insufficient to support the existence of a privacy interest.");
Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)
(concluding that defendant failed to meet its burden of showing that release of inspectors'
"coded ID numbers" would constitute a clearly unwarranted invasion of privacy because
defendant "has 'established no more than a mere possibility that the medical condition of a
particular individual might be disclosed - which the Supreme Court has told us is not enough'"
(quoting Arieff, 712 F.2d at 1467)); Fortson v. Harvey, 407 F. Supp. 2d 13, 17 (D.D.C. 2005)
(deciding that potential harm to witnesses of unfavorable personnel evaluations and
workplace harassment was "pure speculation"); Dayton Newspapers, Inc. v. Dep't of the Air
Force, 107 F. Supp. 2d 912, 919 (S.D. Ohio 1999) (declining to protect medical malpractice
settlement figures based upon "mere possibility that factual information might be pieced
together to supply 'missing link' and lead to personal identification" of claimants); Chi. Tribune
Co. v. HHS, No. 95-3917, 1997 WL 1137641, at *10-11 (N.D. Ill. Feb. 26, 1997) (magistrate's
recommendation) (finding "speculative at best" agency's argument that release of breast
cancer patient data forms that identify patients only by nine-digit encoded "Study Numbers"
could result in identification of individual patients), adopted, (N.D. Ill. Mar. 28, 1997).
44 879 F.2d at 878.
45 541 U.S. at 167.
46 Id. at 166.
47 Id. at 170. 428 Exemption 6
attempts to exploit pictures of the deceased family member's remains for public purposes."48
Analyzing what recipients of the death scene photos may do with them, the Court found that
the surviving family members had a protectible privacy interest in seeking to limit the
attempts by the requester, as well as the public and media, to exploit the deceased's photos.49
As the D.C. Circuit has held, "[w]here there is a substantial probability that disclosure will
cause an interference with personal privacy, it matters not that there may be two or three
links in the causal chain."50 One court has pragmatically observed that to distinguish between
48 Id. at 168.
49 Id. at 167.
50 NARFE, 879 F.2d at 878; see, e.g., Favish, 541 U.S. at 167-70 (specifically taking into
account "the consequences" of FOIA disclosure, including "public exploitation" of the records
by either the requester or others); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1026 (9th Cir. 2008) (finding that "the public association of the employees with
[the Cramer Fire] would subject them to the risk of embarrassment in their official capacities
and in their personal lives"); Moore v. Bush, 601 F. Supp. 2d 2, 14 (D.D.C. 2009) (concluding
that release of name and phone number of an FBI support employee and the name of a Special
Agent "could subject the Agent and employee to harassment") (Exemptions 6 and 7(C)); Hall,
552 F. Supp. 2d at 30 ("Pursuant to Exemption 6, individuals have a privacy interest in avoiding
disclosure of identifying information if disclosure would subject them to harassment."); Reilly
v. DOE, No. 07-995, 2007 WL 4548300, at *6 (N.D. Ill. Dec. 18, 2007) ("If the names of the [Merit
Review Committee] members were disclosed to the public, they would be subject to
harassment from disgruntled applicants whose proposals were denied."); George v. IRS, No.
05-955, 2007 WL 1450309, at *11 (N.D. Cal. May 14, 2007) ("IRS employees have a strong right
to privacy in order to fulfill their obligations without fear that taxpayers will attempt to harass
or contact employees directly instead of using the administrative and judicial processes for
appeal."); Bigwood v. USAID, 484 F. Supp. 2d 68, 77 (D.D.C. 2007) ("Defendant has presented
declarations that detail the potential harm to the employees if the identities of the grantee
organizations at issue in this case are released."); Long v. OPM, No. 05-1522, 2007 WL 2903924,
at *15 (N.D.N.Y. Sept. 30, 2007) ("[W]hether the disclosure of names of government employees
threatens a significant privacy interest depends on the consequences likely to ensue from
disclosure."); O'Keefe v. DOD, 463 F. Supp. 2d 317, 324 (E.D.N.Y. 2006) ("Government
employees, and specifically law enforcement personnel, have a significant privacy interest in
their identities, as the release of their identities may subject them to embarrassment and
harassment.") (Exemption 7(C)); Judicial Watch, Inc. v. Dep't of the Army, 402 F. Supp. 2d 241,
251 (D.D.C. 2005) (granting defendant's motion for summary judgment as to information
withheld pursuant to Exemption 6; finding that it is "likely" that the documents would be
published on the Internet and that media reporters would seek out employees, and stating
"[t]his contact is the very type of privacy invasion that Exemption 6 is designed to prevent").
But see U.S. Dep't of State v. Ray, 502 U.S. 164, 179-82 (1991) (Scalia, J., concurring in part)
(suggesting that "derivative" privacy harm should not be relied upon in evaluating privacy
interests); Associated Press v. DOD, 410 F. Supp. 2d 147, 151 (D.D.C. 2006) (suggesting that
"derivative" harms might not be cognizable under Exemption 6, based on Justice Scalia's
concurring opinion in Ray); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003, 2004 WL
3426434, at *16-17 (D.N.M. Feb. 28, 2004) (deciding that agency did not meet its burden of
establishing that names of financial institutions and amounts of individual loans in lienholder
(continued...) Privacy Interest 429
the initial disclosure and unwanted intrusions as a result of that disclosure would be "to honor
form over substance."51
Along this line of reasoning, the D.C. Circuit in Multi Ag Media LLC v. USDA concluded
that the disclosure of two databases containing information on crops and field acreage, and
farm data on a digitized aerial photograph, would compromise a greater than de minimis
privacy interest of individual farmers.52 Although "not persuaded that the privacy interest that
may exist is particularly strong," the court found that "[t]elling the public how many crops are
on how much land or letting the public look at photographs of farmland with accompanying
data will in some cases allow for an inference to be drawn about the financial situation of an
individual farmer."53
Similarly, the Court of Appeals for the Tenth Circuit, in Forest Guardians v. FEMA,
decided that the release of "electronic mapping files" would invade the privacy interest of
homeowners.54 The files contained the specific locations of insured structures that "could
easily lead to the discovery of an individual's name and home address," as well as "unwanted
and unsolicited mail, if not more."55
In some instances, the disclosure of information might involve no invasion of privacy
because, fundamentally, the information is of such a nature that no expectation of privacy
exists.56 For example, FOIA requesters (except those making requests for records on
50(...continued)
agreements could be used to trace individual permittees); Dayton Newspapers, Inc. v. VA, 257
F. Supp. 2d 988, 1001-05 (S.D. Ohio 2003) (rejecting argument based upon agency's concern
that names of judges and attorneys could be used to search through databases to identify
claimants and thereby invade privacy of claimants).
51 Hudson v. Dep't of the Army, No. 86-1114, 1987 WL 46755, at *3 (D.D.C. Jan. 29, 1987)
(protecting personal identifying information on the basis that its disclosure under the FOIA
could ultimately lead to physical harm), aff'd, 926 F.2d 1215 (D.C. Cir. 1991) (unpublished table
decision); see also, e.g., Hemenway v. Hughes, 601 F. Supp. 1002, 1006-07 (D.D.C. 1985)
(same).
52 515 F.3d at 1230.
53 Id. (concluding, ultimately, that despite this privacy interest, information should be
disclosed due to strong public interest); see, e.g., Seized Prop. Recovery., 502 F. Supp. 2d at
58 ("[I]ndividuals have a privacy interest in the nondisclosure of their names and addresses
when linked to financial information, especially when this information could be used for
solicitation purposes.") (Exemption 6 and 7(C)).
54 410 F.3d 1214, 1220-21 (10th Cir. 2005).
55 Id. (finding that additional information, such as individual's decision to buy flood
insurance, could be revealed through disclosure of requested files and thus also invade
privacy).
56 See, e.g., People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere
(continued...) 430 Exemption 6
themselves) do not ordinarily expect that their names will be kept private; therefore, release
of their names would not cause even the minimal invasion of privacy necessary to trigger the
balancing test.57
Similarly, civilian federal employees who are not involved in law enforcement generally
have no expectation of privacy regarding their names, titles, grades, salaries, and duty
stations as employees58 or regarding the parts of their successful employment applications
56(...continued)
identity of individuals who voluntarily submitted comments regarding the Lincoln video does
not raise the kind of privacy concerns protected by Exemption 6."); Fuller v. CIA, No. 04-253,
2007 WL 666586, at *4 (D.D.C. Feb. 28, 2007) (finding that information reflecting only
professional and business judgments and relationships "cannot fairly be characterized as
personal information that exemption (b)(6) was meant to protect"); Alliance for the Wild
Rockies v. Dep't of the Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999) (finding that commenters
to proposed rulemaking could have no expectation of privacy when agency made clear that
their identities would not be concealed).
57 See Holland v. CIA, No. 91-1233, 1992 WL 233820, at *15-16 (D.D.C. Aug. 31, 1992)
(holding that researcher who sought assistance of presidential advisor in obtaining CIA files
he had requested is comparable to FOIA requester whose identity is not protected by
Exemption 6); Martinez v. FBI, No. 82-1547, slip op. at 7 (D.D.C. Dec. 19, 1985) (denying
protection for identities of news reporters seeking information concerning criminal
investigation) (Exemption 7(C)); see also FOIA Update, Vol. VI, No. 1, at 6 (advising agencies
that the identities of first-party requesters under the Privacy Act of 1974, 5 U.S.C. § 552a
(2006), should be protected because, unlike under the FOIA, an expectation of privacy can
fairly be inferred from the personal nature of the records involved in those requests). But see
Silets v. DOJ, 945 F.2d 227, 230 (7th Cir. 1991) (en banc) (protecting name of high school
student who requested information about wiretaps on Jimmy Hoffa).
58 See OPM Regulation, 5 C.F.R. § 293.311 (2009) (specifying that certain information
contained in federal employee personnel files is available to public); see also FLRA v. U.S.
Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (noting that performance awards
"have traditionally been subject to disclosure"); Core v. USPS, 730 F.2d 946, 948 (4th Cir. 1984)
(finding no substantial invasion of privacy in information identifying successful federal job
applicants); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 257
(D.D.C. 2005) (noting that Justice Department paralegals' names and work numbers "are
already publicly available from [OPM]"), appeal dismissed voluntarily, No. 06-5055, 2006 WL
1214937 (D.C. Cir. Apr. 28, 2006); Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552,
569 (S.D.N.Y. 1989) (stating that "disclosure [of names of State Department's officers and staff
members involved in highly publicized case] merely establishes State [Department]
employees' professional relationships or associates these employees with agency business");
Nat'l W. Life Ins. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (discerning no
expectation of privacy in names and duty stations of Postal Service employees); FOIA Update,
Vol. III, No. 4, at 3 ("Privacy Protection Considerations") (discussing extent to which privacy
of federal employees can be protected); cf. Tomscha v. GSA, No. 03-6755, 2004 WL 1234043,
at *4-5 (S.D.N.Y. June 3, 2004) (deciding without discussion that amount of performance
award was properly redacted when agency showed that there could be "mathematical
(continued...) Privacy Interest 431
that show their qualifications for their positions.59 However, federal civilian employees do
have a protectible privacy interest in purely personal details that do not shed light on agency
functions. 60 Indeed, courts generally have recognized the sensitivity of information contained
58(...continued)
linkage" between award and performance evaluation), aff'd, 158 F. App'x 329, 329 (2d Cir.
2005) (agreeing with the district court's finding that "the release of the justifications for [lowranking
GSA employee's] awards would constitute more than a de minimis invasion of
privacy"). But see Rogers v. Davis, No. 08-177, 2009 WL 213034, at *3 (E.D. Mo. Jan. 28, 2009)
("Government employees have a privacy interest in their names and phone numbers,
especially when associated with a complaint of misconduct."); United Am. Fin., Inc., 531 F.
Supp. 2d at 42-43 (concluding that Exemption 6 protects against disclosure of names of USPS
employees regarding information pertaining to their financial choices).
59 See Habeas Corpus Resource Ctr. v. DOJ, No. 08-2649, 2008 WL 5000224, at *4 (N.D. Cal.
Nov. 21, 2008) (ordering release of email chains regarding the decision to hire a DOJ attorney
because "[p]laintiff's interest - and the public's interest - in determining whether [attorney's]
hiring was improper is sufficient to outweigh any minimal privacy interest [the attorney] may
have in keeping these opinions from the public"); Cowdery, Ecker & Murphy, LLC v. Dep't of
Interior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007) ("Because exemption 6 seeks to protect
government employees from unwarranted invasions of privacy, it makes sense that FOIA
should protect an employee's personal information, but not information related to job
function."); Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that the
agency had "released information pertaining to the successful candidates' educational and
professional qualifications, including letters of commendation and awards, as well as their
prior work history, including federal positions, grades, salaries, and duty stations"); Samble
v. U.S. Dep't of Commerce, No. 1:92-225, slip op. at 11 (S.D. Ga. Sept. 22, 1994) (requiring
disclosure of successful job applicant's "undergraduate grades; private sector performance
awards; foreign language abilities; and his answers to questions concerning prior firings, etc.,
convictions, delinquencies on federal debt, and pending charges against him"); Associated
Gen. Contractors, Inc. v. EPA, 488 F. Supp. 861, 863 (D. Nev. 1980) (education, former
employment, academic achievements, and employee qualifications). But see People for
Ethical Treatment of Animals v. USDA, No. 06-930, 2007 WL 1720136, at *4 (D.D.C. June 11,
2007) ("'[A]n employee has at least a minimal privacy interest in his or her employment history
and job performance evaluations. That privacy interest arises in part from the presumed
embarrassment or stigma wrought by negative disclosures.'" (quoting Stern v. FBI, 737 F.2d
84, 91 (D.C. Cir. 1984))) (Exemption 7(C)).
60 See, e.g., DOD v. FLRA, 510 U.S. at 500 (federal employees' home addresses); Kidd v. DOJ,
362 F. Supp. 2d 291, 296-97 (D.D.C. 2005) (home telephone number); Barvick, 941 F. Supp. at
1020-21 (personal information such as home addresses and telephone numbers, social security
numbers, dates of birth, insurance and retirement information, reasons for leaving prior
employment, and performance appraisals); Stabasefski v. United States, 919 F. Supp. 1570,
1575 (M.D. Ga. 1996) (names of FAA employees who received Hurricane Andrew assistance
payments); Plain Dealer Publ'g Co. v. U.S. Dep't of Labor, 471 F. Supp. 1023, 1028-30 (D.D.C.
1979) (medical, personnel, and related documents of employees filing claims under Federal
Employees Compensation Act); Info. Acquisition Corp. v. DOJ, 444 F. Supp. 458, 463-64 (D.D.C.
1978) ("core" personal information such as marital status and college grades). But see Wash.
(continued...) 432 Exemption 6
in personnel-related files and have accorded protection to the personal details of a federal
employee's service.61 In addition, the identities of persons who apply but are not selected for
federal government employment may be protected.62 Even suggestions submitted to an
60(...continued)
Post Co. v. HHS, 690 F.2d 252, 258-65 (D.C. Cir. 1982) (holding personal financial information
required for appointment as HHS scientific consultant not exempt when balanced against
need for oversight of awarding of government grants); Trupei v. DEA, No. 04-1481, slip op. at
3-5 (D.D.C. Sept. 27, 2005) (ordering disclosure of signature where name of retired DEA agent
was already released, because "speculative" possibility of misuse of signature did not
establish cognizable privacy interest); Husek v. IRS, No. 90-CV-923, 1991 U.S. Dist. LEXIS
20971, at *1 (N.D.N.Y. Aug. 16, 1991) (holding citizenship, date of birth, educational
background, and veteran's preference of federal employees not exempt), aff'd, 956 F.2d 1161
(2d Cir. 1992) (unpublished table decision).
61 See, e.g., Ripskis, 746 F.2d at 3-4 (names and identifying data contained on evaluation
forms of HUD employees who received outstanding performance ratings); Warren v. Soc. Sec.
Admin., No. 98-CV-0116E, 2000 WL 1209383, at *4 (W.D.N.Y. Aug. 22, 2000) (award
nomination forms for specific employees), aff'd, 10 F. App'x 20 (2d Cir. 2001); Rothman v.
USDA, No. 94-8151, slip op. at 6 (C.D. Cal. June 17, 1996) (settlement agreement related to
charge of employment discrimination that "could conceivably lead to embarrassment or
friction with fellow employees or supervisors"); Resendez v. Runyon, No. 94-434F, slip op. at
6-7 (W.D. Tex. Aug. 11, 1995) (names of applicants for supervisory training who have not yet
been accepted or rejected); McLeod v. U.S. Coast Guard, No. 94-1924, slip op. at 8-10 (D.D.C.
July 25, 1995) (Coast Guard officer's evaluation report), summary affirmance granted, No. 96
5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997); Putnam v. DOJ, 873 F. Supp. 705, 712-13
(D.D.C. 1995) (names of FBI employees mentioned in "circumstances outside of their official
duties," such as attending training classes and as job applicants); Ferri v. DOJ, 573 F. Supp.
852, 862-63 (W.D. Pa. 1983) (FBI background investigation of Assistant United States
Attorney); Dubin v. Dep't of the Treasury, 555 F. Supp. 408, 412 (N.D. Ga. 1981) (studies of
supervisors' performance and recommendations for performance awards), aff'd, 697 F.2d 1093
(11th Cir. 1983) (unpublished table decision); see also FLRA v. U.S. Dep't of Commerce, 962
F.2d at 1060 (distinguishing personnel "ratings," which traditionally have not been disclosed,
from "performance awards," which ordinarily are disclosed); cf. Prof'l Review Org., Inc. v. HHS,
607 F. Supp. 423, 427 (D.D.C. 1985) (résumé data of proposed staff of government contract
bidder).
62 See Core, 730 F.2d at 948-49 (protecting identities and qualifications of unsuccessful
applicants for federal employment); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.
Supp. 2d 146, 177 (D.D.C. 2004) (holding that résumé of individual interested in project that
never "got out of the embryonic stages" was properly withheld); Warren, 2000 WL 1209383,
at *4 (protecting identities of unsuccessful job applicants); Judicial Watch, Inc. v. Exp.-Imp.
Bank, 108 F. Supp. 2d 19, 38 (D.D.C. 2000) (protecting résumés of individuals whose
applications for insurance were withdrawn or denied); Judicial Watch, Inc. v. Comm'n on U.S.
Pac. Trade & Inv. Policy, No. 97-0099, 1999 WL 33944413, at *11-12 (D.D.C. Sept. 30, 1999)
(protecting identities of individuals considered for but not appointed to Commission);
Rothman, No. 94-8151, slip op. at 8-9 (C.D. Cal. June 17, 1996) ("Disclosure of information in the
applications of persons who failed to get a job may 'embarrass or harm' them."); Barvick, 941
(continued...) Privacy Interest 433
Employee Suggestion Program have been withheld to protect employees with whom the
suggestions are identifiable from the embarrassment that might occur from disclosure.63
Federal employees involved in law enforcement, as well as military personnel and
Internal Revenue Service employees, do possess, by virtue of the nature of their work,
protectible privacy interests in their identities and work addresses.64 In light of this privacy
62(...continued)
F. Supp. at 1021-22 (protecting all information about unsuccessful federal job applicants
because any information about members of "select group" that applies for such jobs could
identify them); Voinche v. FBI, 940 F. Supp. 323, 329-30 (D.D.C. 1996) (protecting identities of
possible candidates for Supreme Court vacancies), aff'd per curiam, No. 96-5304, 1997 WL
411685 (D.C. Cir. June 19, 1997); Putnam, 873 F. Supp. at 712-13 (protecting identities of FBI
personnel who were job candidates); Holland,1992 WL 233820, at *13-15 (protecting identity
of person not selected as CIA general counsel).
63 See Matthews v. USPS, No. 92-1208-CV-W-8, slip op. at 5 (W.D. Mo. Apr. 15, 1994).
64 See Lahr v. NTSB, No. 06-56717, 2009 WL 1740752, at *9-10 (9th Cir. June 22, 2009)
(reversing district court and holding that FBI agents have cognizable privacy interest in
withholding their names because release of FBI agents' identity would most likely subject
agents "to unwanted contact by the media and others, including [plaintiff], who are skeptical
of the government's conclusion" in investigation of crash of TWA Flight 800); Wood v. FBI, 432
F.3d 78, 87-89 (2d Cir. 2005) (protecting investigative personnel of FBI's Office of Professional
Responsibility); Judicial Watch, Inc. v. United States, 84 F. App'x 335, 338-39 (4th Cir. 2004)
(protecting names of lower-level clerical workers at IRS); New England Apple Council v.
Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984) (protecting identities of nonsupervisory Inspector
General investigators who participated in grand jury investigation of requester) (Exemption
7(C)); Moore, 601 F. Supp. 2d at 14 (protecting the name and phone number of an FBI support
employee and the name of a Special Agent because release "could subject the Agent and
employee to harassment") (Exemptions 6 and 7(C)); Cal-Trim Inc. v. IRS, 484 F. Supp. 2d 1021,
1027 (D. Ariz. 2007) (protecting names of lower-level IRS employees in internal IRS
correspondence so as not to expose them to unreasonable annoyance or harassment)
(Exemptions 6 and 7(C)); Clemmons v. U.S. Army Crime Records Ctr., No. 05-02353, 2007 WL
1020827, at *6 (D.D.C. Mar. 30, 2007) (withholding the identities of U.S. Army Criminal
Investigation Division special agents and military police (Exemptions 6 and 7(C)); Elec.
Privacy Info. Ctr. v. DHS, No. 04-1625, 2006 U.S. Dist. LEXIS 94615, at *30 (D.D.C. Dec. 22, 2006)
(protecting names of employees from United States Customs and Border Protection and DHS
involved in anti-terrorism efforts); Van Mechelen v. U.S. Dep't of the Interior, No. 05-5393, 2005
WL 3007121, at *4-5 (W.D. Wash. Nov. 9, 2005) (protecting identifying information of lowerlevel
Office of Inspector General and Bureau of Indian Affairs employees in report of
investigation) (Exemptions 6 and 7(C)), aff'd, 230 F. App'x 705 (9th Cir. 2007); Judicial Watch,
Inc. v. FDA, 407 F. Supp. 2d 70, 76-77 (D.D.C. 2005) (finding that HHS employees named in
records concerning abortion drug testing of mifepristone (also referred to as Mifeprex or RU
486) were properly protected pursuant to Exemption 6 in order to ensure employees' safety),
aff'd in pertinent part, 449 F.3d 141, 152-54 (D.C. Cir. 2006); Davy v. CIA, 357 F. Supp. 2d 76,
87-88 (D.D.C. 2004) (protecting CIA employee names). But see Stonehill v. IRS, 534 F. Supp.
2d 1, 12 (D.D.C. 2008) (ordering release of an IRS agent's name because defendant did not
(continued...) 434 Exemption 6
interest, the Department of Defense now regularly withholds personally identifying
information about all military and civilian employees with respect to whom disclosure would
"raise security or privacy concerns."65 For law enforcement personnel in particular, these
privacy interests are generally protected under Exemption 7(C).66 (For a more detailed
64(...continued)
provide satisfactory response to plaintiff's argument that names of other IRS agents involved
in underlying case had been released in thousands of documents and there was no reason
identified by defendant as to why redacted agent's name should be withheld) (Exemptions
6 and 7(C)).
65 Department of Defense Director for Administration and Management Memorandum for
DOD FOIA Offices 1-2 (Nov. 9, 2001), available at www.defenselink.mil/pubs/ foi/withhold.pdf
(noting that certain personnel's names can be released due to "the nature of their positions
and duties," including public affairs officers and flag officers); see also Schoenman, 575 F.
Supp. 2d at 160 (stating that "since the attacks, as a matter of official policy, the DoD carefully
considers and limits the release of all names and other personal information concerning
military and civilian personnel, based on a conclusion that they are at increased risk
regardless of their duties or assignment to such a unit"); Los Angeles Times Commc'ns LLC
v. U.S. Dep't of Labor, 483 F. Supp. 2d 975, 985-86 (C.D. Cal. 2007) (concluding that defendant
properly withheld information revealing the identity of all civilian contractors supporting
Allied military operations in Iraq and Afghanistan because "the privacy life or death interest
of the individual whose records are requested" outweighs "the public interest in disclosure");
Long, 2007 WL 2903924, at *16 n.8 (finding that certain DOD and non-DOD government
employees "have a privacy interest in their names and duty stations" when revelation of their
identities could possibly make them subject to harassment or embarrassment in their
occupation or personal lives); Hiken v. DOD, 521 F. Supp. 2d 1047, 1065 (N.D. Cal. 2007)
(finding that redactions of names of military personnel proper because "defendants present
a strong argument that the privacy interests at stake are significant where the disclosure of
these names would risk harm or retaliation"); Clemmons, 2007 WL 1020827, at *6 ("The
identities of [U.S. Army Criminal Investigation Division] special agents, military police, other
government personnel and [third-party] witnesses were all properly withheld under
Exemptions (b)(6) and (b)(7)(C)."); O'Keefe, 463 F. Supp. 2d at 327 (upholding DOD's
withholding of personal information of investigators as well as subjects of investigation found
in United States Central Command Report); Ctr. for Pub. Integrity v. OPM, No. 04-1274, 2006
WL 3498089, at *6 (D.D.C. Dec. 12, 2006) (finding that OPM properly withheld the names and
duty stations of DOD and certain non-DOD federal personnel in sensitive occupations under
Exemption 6); Deichman v. United States, No. 05-680, 2006 WL 3000448, at *7 (E.D. Va. Oct.
20, 2006) (upholding United States Joint Forces Command's withholding of employee names
and discussions of personnel matters relating to other employees under Exemption 6);
MacLean v. DOD, No. 04-2425, slip op. at 18 (S.D. Cal. June 2, 2005) (protecting "names,
initials, and other personal information" about Defense Hotline Investigators and other DOD
personnel) (Exemptions 6 and 7(C)).
66 See Keys v. DHS, 570 F. Supp. 2d 59, 68 (D.D.C. 2008) (stating that "'[o]ne who serves his
state or nation as a career public servant is not thereby stripped of every vestige of personal
privacy, even with respect to the discharge of his official duties. Public identification of any
of these individuals could conceivably subject them to harassment and annoyance in the
(continued...) Privacy Interest 435
discussion of the privacy protection accorded law enforcement personnel, see Exemption 7(C),
below.)
Unless the information has become "practicably obscure," as discussed below, there is
generally no expectation of privacy regarding information that is particularly well known or
is widely available within the public domain.67 Likewise, an individual generally does not
have any expectation of privacy with respect to information that he or she has made public.68
The D.C. Circuit has held that under the public domain doctrine, information that would
otherwise be subject to a valid FOIA exemption must be disclosed if that information is
preserved in a permanent public record or is otherwise easily accessible by the public.69 In
66(...continued)
conduct of their official duties and in their private lives'" (quoting Nix v. United States, 572 F.2d
998, 1006 (4th Cir. 1978))) (Exemption 7(C)).
67 See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007) (concluding
that the Inspector General's substantive response to the Integrity Committee's questions
should be released because "those portions answer Trentadue's allegations with respect to
specific individuals" and Trentadue's complaint filed with the Integrity Committee is a public
document included in the record of the appeal; therefore, the "[Inspector General's] response
to these accusations, by necessity, mentions the names of these individuals" and "[d]isclosure
of these names, when the allegations made against the individuals are already part of the
public record, would not invade the accused's privacy at all"); Detroit Free Press, Inc. v. DOJ,
73 F.3d 93, 96-97 (6th Cir. 1996) (finding no privacy rights in mug shots of defendants in
ongoing criminal proceedings when names are public and defendants have appeared in open
court) (Exemption 7(C)); Blanton v. DOJ, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12
(W.D. Tenn. July 14, 1994) ("The fact of [requester's former counsel's] representation is a matter
of public record . . . . Whether an individual possesses a valid license to practice law is also
a matter of public record and cannot be protected by any privacy interest."). But see Times
Picayune Publ'g Corp. v. DOJ, 37 F. Supp. 2d 472, 477-82 (E.D. La. 1999) (protecting the mug
shot of a prominent individual despite wide publicity prior to his guilty plea, and observing
that a "mug is more than just another photograph of a person") (Exemption 7(C)).
68 See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (finding no
privacy interest in documents concerning presidential candidate's offer to aid federal
government in drug interdiction, a subject about which the candidate had made several public
statements); see also Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir 1998) (noting that
government lawyer investigated by DOJ's Office of Professional Responsibility diminished his
privacy interest by acknowledging existence of investigation but that he still retains privacy
interest in nondisclosure of any details of investigation) (Exemption 7(C)); Billington v. DOJ,
245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons contained
in a reporter's notes given to the State Department was not protected by Exemption 6,
because these persons "knew that they were speaking to a reporter on the record and
therefore could not expect to keep private the substance of the interview").
69 See Niagara Mohawk Power Corp. v. DOJ, 169 F.3d 16, 19 (D.C. Cir.1999); Davis v. DOJ,
968 F.2d 1276, 1279 (D.C. Cir. 1992) (Exemptions 7(C) & 7(D)); Avondale Indus. v. NLRB, 90
F.3d 955, 961 (5th Cir. 1996) (finding that names and addresses of voters in union election
(continued...)
436 Exemption 6
order for the public domain doctrine to apply, a requester must be able to point "to specific
information in the public domain that appears to duplicate that being withheld."70
While as a general rule individuals have no privacy interest in information that has been
previously disclosed, the Supreme Court's decision in Reporters Committee and its progeny
have recognized that individuals have a privacy interest in information that at one time may
have been disclosed or made publicly available, but is now difficult to obtain.71 That is, such
individuals may have a privacy interest in maintaining the information's "practical obscurity."72
69(...continued)
were already disclosed in voluminous public record and that there was no showing that public
record was compiled in such a way as to effectively obscure that information); Hall, 552 F.
Supp. 2d at 30-31 (stating that "[t]he court agrees that, to the extent that the non-redacted
portions specifically identify the names of individuals in specific redacted portions of the
documents, DOJ cannot redact these names" because "[t]he FOIA exemptions do not apply
once the information is in the public domain"); Aguirre v. SEC, 551 F. Supp. 2d 33, 58 (D.D.C.
2008) ("Given the extent to which plaintiff's allegations have been found to be credible by the
Senate Report, and the strong public interest in ferreting out possible improprieties at the
SEC, disclosure is clearly warranted in situations where the person has already been
identified in the Senate Report."); Hidalgo v. FBI, 541 F. Supp. 2d 250, 255 (D.D.C. 2008)
(finding government informant's personal privacy at stake, "but his interest is far more limited
than that of the typical confidential informant" because "status as a government informant is
open and notorious") (Exemptions 6 and 7(C)); O'Neill v. DOJ, No. 05-306, 2007 WL 983143, at
*9 (E.D. Wis. Mar. 26, 2007) ("Under the public domain doctrine, materials not normally
immunized from disclosure under FOIA lose their protective cloak once disclosed and
preserved in a permanent public record."); Nat'l W. Life Ins., 512 F. Supp. at 461 (noting that
names and duty stations of most federal employees are routinely published and available
through Government Printing Office).
70 Afshar v. U.S. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); see, e.g., Edwards v.
DOJ, No. 04-5044, 2004 WL 2905342, at *1 (D.C. Cir. Dec. 15, 2004) (per curiam) (summarily
affirming district court's decision to bar release of any responsive documents pursuant to
Exemption 7(C); finding that appellant's argument that release of the documents was required
because government officially acknowledged the information contained therein, fails because
appellant "has failed to point to 'specific information in the public domain that appears to
duplicate that being withheld'" (quoting Davis, 968 F.2d at 1279)); Grandison v. DOJ, 600 F.
Supp. 2d 103, 117 (D.D.C. 2009) (finding that plaintiff failed to show that requested information
is publicly available because he "does not show that complete copies of the depositions and
answers to interrogatories requested under the FOIA have been disclosed and are preserved
in a permanent public court record").
71 See Reporters Comm., 489 U.S. at 780.
72 Id. (recognizing privacy interest in maintaining "practical obscurity" of "rap sheets" and
observing that if such items of information actually "were 'freely available,' there would be no
reason to invoke the FOIA to obtain access to" them); see, e.g., Associated Press v. DOJ, 549
F.3d at 65 (applying "practical obscurity" concept and noting that "[t]his [privacy] protection
extends even to information previously made public") (Exemptions 6 and 7(C)); Isley v. EOUSA,
(continued...) Privacy Interest 437
As the Supreme Court found, individuals can have a cognizable privacy interest in
identifying information "that might be found after a diligent search of courthouse files, county
archives, [. . .] local police stations," and other publicly available sources of information, but
otherwise is not readily available to the public. 73
Similarly, courts have found that the mere fact that some of the information may be
known to some members of the public does not negate the individual's privacy interest in
preventing further dissemination to the public at large.74 For example, the Supreme Court in
72(...continued)
No. 98-5098, 1999 WL 1021934, at *4 (D.C. Cir. Oct. 21, 1999) (finding no evidence that
previously disclosed documents "continue to be 'freely available' in any 'permanent public
record'") (Exemption 7(C)); Fiduccia v. DOJ, 185 F.3d 1035, 1046-47 (9th Cir. 1999) (finding
privacy interest based on "practical obscurity" justified and protecting information about two
individuals whose homes were searched ten years previously despite publicity at that time
and fact that some information might be public in various courthouses) (Exemption 7(C));
Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (holding that
there may be privacy interest in personal information even if "available on publicly recorded
filings"); Lawyers' Comm. for Civil Rights v. Dep't of Transp., No. 07-2590, 2008 WL 4482855,
at *21 (N.D. Cal. Sept. 30, 2008) (noting, consistent with "practical obscurity" principles, that
"the Ninth Circuit has held that simply because certain documents that would normally be
subject to Exemptions 7(C) and Exemption 6 have already been publicized does not mean they
must be disclosed by the agency"); Jarvis v. ATF, No. 07-111, 2008 WL 2620741, at *12 (N.D.
Fla. June 30, 2008) (stating that "[a] document previously disclosed may have 'practical
obscurity' and might not again become public without a diligent search[;]" consequently, "the
individual privacy exemption in the FOIA is not necessarily vitiated by prior disclosures");
Canaday v. ICE, 545 F. Supp. 2d 113, 117 (D.D.C. 2008) (relying on "practical obscurity" and
recognizing "a privacy interest in the identifying information of the Federal employees even
though the information may have been public at one time."); Leadership Conference on Civil
Rights, 404 F. Supp. 2d at 257-59 (holding, under Exemption 6, that law enforcement records
that were previously given to symposium members fall within "practical obscurity" rule);
Dayton Newspapers, Inc., 257 F. Supp. 2d at 1010 (reasoning that although modern search
engines might make even otherwise obscure personal information more widely available, that
"does not mean that [individuals] have lost all traits of privacy" in that information); Linn v.
DOJ, No. 92-1406, 1995 WL 417810, at *31 (D.D.C. June 6, 1995) (declaring that even if "some
of the names at issue were at one time released to the general public, individuals are entitled
to maintaining the 'practical obscurity' of personal information that is developed through the
passage of time"). But see CNA Holdings, Inc. v. DOJ, No. 07-2084, 2008 WL 2002050, at *6
(N.D. Tex. May 9, 2008) (finding court documents to be in the public domain due to defendant's
failure to meet its "burden to show that the documents that were clearly public and should be
in the court's files, according to PACER and the common record retention practice of federal
courts, are for some reason not actually still publicly available").
73 Reporters Comm., 489 U.S. at 764.
74 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 n.3 ("As a preliminary
matter, we reject [plaintiff's] contention that the unauthorized leak of the unredacted Cramer
Fire Report or OSHA's decision to identify certain employees in its own report diminishes the
(continued...)
438 Exemption 6
Favish held that the fact that one photograph of the death scene had been leaked to the media
did not detract from the weighty privacy interests of the surviving relatives to be secure from
intrusions by a "sensation-seeking culture" and in limiting further disclosure of the death scene
images, "for their own piece of mind and tranquility."75
74(...continued)
Forest Service's ability to apply Exemption 6 to redact the identities from the Report.");
Horowitz, 428 F.3d at 280 ("Even though the student did reveal his allegation to two Peace
Corps workers . . . he still has an interest in avoiding further dissemination of his identity.");
Barnard, 598 F. Supp. 2d at 12 ("Plaintiff's argument is foreclosed by a long line of cases
recognizing that individuals maintain an interest in their privacy even where some information
is known about them publicly."); Lawyers' Comm. for Civil Rights, 2008 WL 4482855, at *21
(stating that "a person may still have a privacy interest in information that has already been
publicized" and explaining that "[n]or is one's privacy interest in potentially embarrassing
information lost by the possibility that someone could reconstruct that data from public files");
Schoenman, 573 F. Supp. 2d at 149 ("[E]ven if Plaintiff is correct that he can guess the
individual's identity, 'the fact that Plaintiff may deduce the identities of individuals through
other means . . . does not diminish their privacy interests.'" (quoting Shores v. FBI, 185 F. Supp.
2d 77, 83 (D.D.C. 2002))); Thomas v. DOJ, 531 F. Supp. 2d 102, 109 (D.D.C. 2008) ("Third parties'
privacy interests are not lost because a requester knows or can determine from a redacted
record their identities . . . . Nor do third parties lose their privacy interests because their
names already have been disclosed.") (Exemption 7(C)); Summers v. DOJ, 517 F. Supp. 2d 231,
240 (D.D.C. 2007) ("The possibility that plaintiff has determined the identity of the agent,
however, does not undermine that agent's privacy interests."); Lee v. DOJ, No. 05-1665, 2007
WL 744731, at *2 (D.D.C. Mar. 6, 2007) ("[A]lthough the documents may contain information
that has already been made public at one time, given that the information would disclose
incidents of prior criminal conduct by third parties, those individuals certainly have privacy
interests in keeping the information from renewed public scrutiny.") (Exemptions 6 and 7(C));
Pendergrass v. DOJ, No. 04-112, 2005 WL 1378724, at *4 (D.D.C. June 7, 2005) (reasoning that
individual does not lose all privacy interest in telephone conversation even if she knew of
potential for monitoring of such calls); Edmonds v. FBI, 272 F. Supp. 2d 35, 53 (D.D.C. 2003)
(finding that media identification of persons mentioned in a law enforcement file "does not
lessen their privacy interests or 'defeat the exemption,' for prior disclosure of personal
information does not eliminate an individual's privacy interest in avoiding subsequent
disclosure by the government") (Exemptions 6 and 7(C)), appeal dismissed voluntarily, No. 03
5364, 2004 WL 2806508 (D.C. Cir. Dec. 7, 2004); Mueller, 63 F. Supp. 2d at 743 (stating that
existence of publicity surrounding events does not eliminate privacy interest) (Exemptions 6
and 7(C)); Chin, No. 97-2176, slip op. at 5 (W.D. La. June 24, 1999) (concluding that although
"some of the events are known to certain members of the public . . . this fact is insufficient to
place this record for dissemination into the public domain"), aff'd per curiam, No. 99-31237 (5th
Cir. June 15, 2000); cf. Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996) (treating requester's
personal knowledge as irrelevant in assessing privacy interests).
75 541 U.S. at 166-71; see also Baltimore Sun v. U.S. Customs Serv., No. 97-1991, slip op. at
5 (D. Md. Nov. 21, 1997) (finding that subject of photograph introduced into court record
"retained at least some privacy interest in preventing the further dissemination of the
photographic image" when "[t]he photocopy in the Court record was of such poor quality as
to severely limit its dissemination") (Exemption 7(C)).
Privacy Interest 439
However, the District Court for the Southern District of New York decided that military
detainees at Guantanamo Bay had no privacy interest in their identifying information because
they provided the information at formal legal proceedings before a tribunal and there was no
evidence that the detainees "were informed that the proceedings would remain confidential
in any respect."76 Indeed, even though the tribunal records were not made available to the
general public and press attendees had to agree to confidentiality requirements, the court
concluded that the detainees had no privacy interest in stopping further dissemination of their
identifying information. 77 On reconsideration, the court went even further by stating, in dicta,
that third parties had "even less of an expectation" of privacy in the disclosure of their
identifying information by detainees at the tribunals.78
The District Court for the Southern District of New York has also held that height and
weight information concerning Guantanamo Bay detainees was not exempt from disclosure
under Exemption 6.79 Finding at best only a "modest" privacy interest in the nondisclosure of
the information, the court acknowledged that prior cases involving height and weight
information frequently resulted in decisions concluding that the privacy interest in the
nondisclosure of such information is "quite weak." 80 After analyzing the privacy interest at
issue, the court concluded that DOD had failed to make "any particularized showing that
disclosure of this information is likely to lead to retaliation, harassment, or embarrassment."81
Moreover, the court went further by suggesting that "at least some detainees would welcome
having this information disclosed" due to the fact that the "immediate impetus" for the FOIA
request concerned an investigation by the Associated Press of hunger strikes by detainees.82
As for the public interest in disclosure of the information, the court stated that "there is a clear
public interest in obtaining this information so as to assess, not only DOD's conduct with
respect to the hunger strikes at Guantanamo, but more generally DOD's care and (literally)
feeding of the detainees."83 Weighing this public interest in disclosure against the privacy
interest in nondisclosure, the court concluded that the height and weight information
contributes significantly to public understanding of the operations or activities of the
76 Associated Press, 410 F. Supp. 2d at 150 (distinguishing privacy interests involved with
Guantanamo Bay detainees from those involved in Ray, based upon express promises of
confidentiality that had been granted to Haitian "boat people").
77 Id. at 156 & n.2 (opining that the testifying detainees had no privacy interest in their
testimony before tribunals because they did not know of confidentiality requirements, nor did
government require such confidentiality in order to protect any privacy interest of detainees).
78 Id. at 154.
79 Associated Press v. DOD, 462 F. Supp. 2d 573, 577-78 (S.D.N.Y. 2006).
80 Id. at 577 (citing cases).
81 Id.
82 Id.
83 Id. (clarifying that information pertaining to both the height and weight of the detainees
is necessary because "weight information only takes on significance when paired with the
corresponding information on height").
440 Exemption 6
government and this public interest in disclosure "more than outweighs the modest privacy
interest, if any, here proffered by DOD."84
Recently, the Court of Appeals for the Second Circuit decided that Guantanamo Bay
detainees and their family members have a "measurable privacy interest" in the nondisclosure
of their names and identifying information contained in records regarding allegations of abuse
by military personnel and other detainees. 85 Relying upon Exemption 7(C), the Court
concluded that identifying information about detainees, including those detainees who
allegedly have been abused by military personnel and those detainees who are alleged to
have abused other detainees, is entitled to protection because "the privacy interest of the
detainees in nondisclosure of their names and identifying information is not outweighed by
any minimal public interest that might be served by such disclosure."86 Regarding the
identifying information of detainees' family members, the Second Circuit concluded that the
information was exempt from disclosure pursuant to Exemption 6.87 Analyzing the privacy
interest of the family members' identifying information, the Second Circuit found that "[i]f
disclosed, the information would also reveal that the family members are relatives of certain
Guantanamo Bay detainees who testified about the Taliban before the [Administrative Review
Boards]."88 After balancing the privacy interest and public interest in the identifying
information, the court concluded "that disclosing the names and addresses of the family
members would constitute a clearly unwarranted invasion of the family members' privacy
interest because such disclosure would not shed any light on DOD’s action in connection with
the detainees' claims at issue here."89
The majority of courts to have considered the issue have held that individuals who
write to the government expressing personal opinions generally do so with some expectation
of confidentiality unless they are advised to the contrary in advance;90 their identities, but not
84 Id. at 578.
85 Associated Press v. DOD, 554 F.3d at 286.
86 Id. at 290.
87 Id. at 293.
88 Id. at 292.
89 Id. at 293.
90 Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d at 36-37 (concluding
that the agency "made it abundantly clear in its notice that the individuals submitting
comments to its rulemaking would not have their identities concealed" when the rulemaking
notice "specified that '[t]he complete file for this proposed rule is available for inspection'"); see
also U.S. Government, Regulations.gov, The Privacy and Use Notice Regarding Comment
Submission, available at http://www.regulations.gov/search/footer/privacyanduse.jsp (last
visited Apr. 30, 2009) (establishing a government portal facilitating the location, review, and
submission of comments on federal regulations published in the Federal Register that are
open for public comment; and providing that "The comments you provide to a Federal
Department or Agency through Regulations.gov are collected voluntarily and may be publicly
(continued...)
Privacy Interest 441
necessarily the substance of their letters, ordinarily have been withheld.91 For instance, the
Court of Appeals for the Fourth Circuit protected under Exemption 7(C) the names and
addresses of people who wrote to the IRS expressing concerns about an organization's taxexempt
status.92 The District Court for the District of Columbia reached the same conclusion
as the Fourth Circuit for the names and addresses of people who wrote to the IRS to comment
on the same organization's tax-exempt status, both pro and con.93 The United States District
Court for the Northern District of California found that the names of persons who complained
to the TSA and FBI about the TSA "watch list" were properly protected, as long as those
individuals had not otherwise made their complaints public.94 Nevertheless, in some
circumstances courts have refused to accord privacy protection to such government
correspondents.95
90(...continued)
disclosed in a rulemaking docket or on the Internet.").
91 See, e.g., Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1125 (7th Cir. 2003) (finding that
the "core purposes" of the FOIA would not be served by the release of the names and
addresses of persons who complained to the FTC about "cramming"); Strout v. U.S. Parole
Comm'n, 40 F.3d 136, 139 (6th Cir. 1994) (articulating public policy against disclosure of names
and addresses of people who write Parole Commission opposing convict's parole); Carter,
Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 145 n.4 (D.D.C. 2007) ("Consumers making
complaints with the FTC have an expectation that it will protect their personal information.");
Kidd v. DOJ, 362 F. Supp. 2d at 297 (protecting names and addresses of constituents in letters
written to their congressman); Butler v. SSA, No. 03-0810, slip op. at 5 (W.D. La. June 25, 2004)
(finding that persons making complaints against an administrative law judge "have a privacy
interest" in their complaints), aff'd on other grounds, 146 F. App'x 752 (5th Cir. 2005); Voinche,
940 F. Supp. at 329-30 ("There is no reason to believe that the public will obtain a better
understanding of the workings of various agencies by learning the identities of . . . private
citizens who wrote to government officials . . . ."), aff'd per curiam, No. 96-5304, 1997 WL
411685 (D.C. Cir. June 19, 1997); Holy Spirit Ass'n v. U.S. Dep't of State, 526 F. Supp. 1022,
1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens to
communicate their concerns regarding their communities" is fostered by protecting identities
of writers); see also Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (MacKinnon, J.,
concurring) (concurring with the nondisclosure of correspondence because communications
from citizens to their government "will frequently contain information of an intensely personal
sort") (Exemptions 6 and 7(C)).
92 Judicial Watch, Inc. v. United States, 84 F. App'x at 337.
93 Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 28 (D.D.C. 2003) (Exemption 7(C)).
94 Gordon v. FBI, 388 F. Supp. 2d 1028, 1041-42, 1045 (N.D. Cal. 2005) (Exemptions 6 and
7(C)).
95 See People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere identity
of individuals who voluntarily submitted comments regarding the Lincoln video does not raise
the kind of privacy concerns protected by Exemption 6 . . . . Moreover, the public interest in
knowing who may be exerting influence on [agency] officials sufficient to convince them to
(continued...) 442 Exemption 6
Since the privacy interest under Exemption 6 only pertains to individuals, neither
corporations nor business associations possess protectible privacy interests.96 The closely
held corporation or similar business entity, however, is an exception to this principle:
"Exemption 6 applies to financial information in business records when the business is
individually owned or closely held, and 'the records would necessarily reveal at least a portion
of the owner's personal finances.'"97 Moreover, when a record reflects personal details
95(...continued)
change the video outweighs any privacy interest in one's name."); Lardner, 2005 WL 758267,
at *17, *19 (requiring release of identities of unsuccessful pardon applicants, as well as
individuals mentioned in pardon documents, because they wrote letters in support of pardon
applications or were listed as character references on pardon applications); Landmark Legal
Found. v. IRS, 87 F. Supp. 2d 21, 27-28 (D.D.C. 2000) (granting Exemption 3 protection under
26 U.S.C. § 6103, but declining to grant Exemption 6 protection to citizens who wrote to IRS
to express opinions or provide information; noting that "IRS has suggested no reason why
existing laws are insufficient to deter any criminal or tortious conduct targeted at persons who
would be identified"), aff'd on Exemption 3 grounds, 267 F.3d 1132 (D.C. Cir. 2001); Judicial
Watch v. DOJ, 102 F. Supp. 2d 6, 17-18 (D.D.C. 2000) (allowing deletion of home addresses and
telephone numbers but ordering release of identities of individuals who wrote to Attorney
General about campaign finance or Independent Counsel issues); Cardona v. INS, No. 93-3912,
1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995) (finding only "de minimis invasion of privacy" in
release of name and address of individual who wrote letter to INS complaining about private
agency that offered assistance to immigrants).
96 See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980) ("Exemption 6 is applicable
only to individuals."); Nat'l Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673, 686 n.44
(D.C. Cir. 1976) ("The sixth exemption has not been extended to protect the privacy interests
of businesses or corporations."); Hodes v. HUD, 532 F. Supp. 2d 108, 119 (D.D.C. 2008) ("As a
threshold matter, both Parties fail . . . to acknowledge that only individuals (not commercial
entities) may possess protectible privacy interests under Exemption 6."); Maydak v. DOJ, 362
F. Supp. 2d 316, 324-25 (D.D.C. 2005) (stating that Exemption 6 applies "'only to individuals'"
(quoting Sims, 642 F.2d at 572 n.47)); cf. Iowa Citizens for Cmty. Improvement v. USDA, 256
F. Supp. 2d 946, 952 n.10 (S.D. Iowa 2002) (dictum) (noting that "[i]t is not clear to this Court
that a trust, any more than a corporation, has a privacy interest worthy of protection under the
FOIA").
97 Multi Ag, 515 F.3d at 1228-29 (quoting Nat'l Parks, 547 F.2d at 685); see, e.g., Consumers'
Checkbook, 554 F.3d at 1051 ("We have . . . recognized substantial privacy interests in
business-related financial information for individually owned or closely held businesses.");
Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978) ("While corporations have no
privacy, personal financial information is protected, including information about small
businesses when the individual and corporation are identical.") rev'd on other grounds, 602
F.2d 1010 (1st Cir. 1979); see also Beard v. Espy, No. 94-16748, 1995 WL 792071, at *1 (9th Cir.
Dec. 11, 1995); Nat'l Parks, 547 F.2d at 685-86; Okla. Publ'g Co. v. HUD, No. CIV-87-1935-P, 1988
U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June 17, 1988); FOIA Update, Vol. III, No. 4, at 5
("FOIA Counselor: Questions & Answers") (advising that corporations do not have privacy,
but that personal financial information is protectible when individual and corporation are
identical). But see Long v. DOJ, 450 F. Supp. 2d 42, 72 (D.D.C. 2006) ("At most, [the
(continued...) Privacy Interest 443
regarding an individual, albeit within the context of a business record, the individual's privacy
interest is not diminished and courts have permitted agency withholding of such
information.98 Courts have found, however, that such an individual's expectation of privacy
is diminished with regard to matters in which he or she is acting in a business capacity.99 In
Doe v. Veneman, on the other hand, the District Court for the Western District of Texas ruled
that the Department of Agriculture had erroneously labeled individuals (who were taking part
in a USDA program) as "businesses" based on either the number of livestock they owned or
the fact that they had a name for their ranch, and it found that personally identifying
information about those individuals was exempt from disclosure.100
When analyzing the privacy interest in nondisclosure under the FOIA, courts have
found that the privacy interest of an individual may be diminished if that individual is
97(...continued)
Department of Justice] ha[s] shown that disclosure of one record would reveal that an
individual is associated with a business that in turn is a party to a legal proceeding. That fact,
standing alone, does not implicate the FOIA's personal privacy concerns."), amended by 457
F. Supp. 2d 30 (D.D.C. 2006), amended further on reconsideration, 479 F. Supp. 2d 23 (D.D.C.
2007).
98 See Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-89 (8th Cir. 2000)
(protecting identities of pork producers who signed petition calling for abolishment of
mandatory contributions to fund for marketing and advertising pork, because release would
reveal position on referendum and "would vitiate petitioners' privacy interest in secret ballot")
(reverse FOIA suit); Forest Guardians v. U.S. Forest Serv., No. 99-0615, slip op. at 39-45
(D.N.M. Jan. 29, 2001) (finding "'substantial' privacy interest" in personal loan information
contained on escrow waiver forms that record ranchers' use of federal grazing permits as loan
collateral) (reverse FOIA suit); Hill v. USDA, 77 F. Supp. 2d 6, 8 (D.D.C. 1999) (finding privacy
interest in records of business transactions between borrowers and partly owned family
corporation relating to loans made by Farmers Home Administration to individual borrowers),
summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000).
99 See, e.g., Hersh & Hersh v. HHS, No. 06-4234, 2008 WL 901539, at *8 (N.D. Cal. Mar. 31,
2008) (finding that business addresses, phone numbers, and job titles of non-federal corporate
employees do not implicate the same type of heightened concerns as "private citizens'
identities, home addresses, home telephone numbers, social security numbers, medical
information, etc."); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp. 2d 1088,
1089 (D. Or. 1998) (concluding that cattle owners who violated federal grazing laws have
"diminished expectation of privacy" in their names when such information relates to
commercial interests) (Exemption 7(C)); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36
(D.D.C. Oct. 18, 1996) (finding that farmers who received subsidies under cotton price-support
program have only minimal privacy interests in home addresses from which they also operate
businesses), appeal dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson &
Bishop Chartered v. USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (concluding that
commercial mushroom growers operating under individual names have no expectation of
privacy).
100 Doe v. Veneman, 230 F. Supp. 2d 739, 748-51 (W.D. Tex. 2002), aff'd in pertinent part on
other grounds, 380 F.3d 807, 818 n.39 (5th Cir. 2004). 444 Exemption 6
deceased.101 While courts have not established a bright-line rule regarding the extent to
which an agency must go in determining whether an individual has died, the D.C. Circuit has
held that an agency must take certain "basic steps," which can vary depending on the specific
circumstances of a particular case, to investigate whether disclosure would violate a living
person's privacy interests. 102 An agency must take these basic steps to determine life status
before invoking a privacy interest under Exemptions 6 or 7(C).103 The D.C. Circuit has upheld
the use of the FBI's "100-year rule," in making its privacy protection determinations whereby
the FBI assumes that an individual is alive unless his or her birthdate is more than 100 years
101 See Davis v. DOJ, 460 F.3d 92, 97-98 (D.C. Cir. 2007) ("We have recognized 'that the
privacy interest in nondisclosure of identifying information may be diminished where the
individual is deceased.'" (quoting Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) ("The fact
of death, therefore, while not requiring the release of identifying information, is a relevant
factor to be taken into account in the balancing decision whether to release information.")))
(Exemption 7(C)); Grandison, 600 F. Supp. 2d at 114 ("However, 'the death of the subject of
personal information does diminish to some extent the privacy interest in that information,
though it by no means extinguishes that interest; one's own and one's relations' interests in
privacy ordinarily extend beyond one's death'" (quoting Schrecker v. DOJ, 254 F.3d 162, 166
(D.C. Cir. 2001))); Schoenman, 575 F. Supp. 2d at 176 ("Significantly, the D.C. Circuit also
recognizes 'that the privacy interest in nondisclosure of identifying information may be
diminished where the individual is deceased,' and has explained that '[t]he fact of death,
therefore, while not requiring the release of information, is a relevant factor to be taken into
account in the balancing decision whether to release information.'" (quoting Schrecker v. DOJ,
349 F.3d at 661)); Summers, 517 F. Supp. 2d at 241 ("This Circuit has 'recognized that the
privacy interest in nondisclosure of identifying information may be diminished where the
individual is deceased.'" (quoting Davis, 460 F.3d at 98)).
102 See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002) (finding that agency's efforts
to determine if individuals were alive or dead met "basic steps" necessary to determine
information that could affect privacy interests, and concluding that "[w]e will not attempt to
establish a brightline set of steps for agency to take" in determining whether an individual is
dead); see also, e.g., Manna v. DOJ, No. 92-1840, slip op. at 8 (D.N.J. Aug. 27, 1993) (finding
government's obligation fulfilled by search of computerized index system and index cards for
evidence of death of witness relocated more than twenty years ago), aff'd, 51 F.3d 1158 (3d
Cir. 1995); Williams v. DOJ, 556 F. Supp. 63, 66 (D.D.C. 1982) (finding agency's good-faith
processing, rather than extensive research for public disclosures, sufficient in lengthy,
multifaceted judicial proceedings).
103 See Schrecker v. DOJ, 254 F.3d 162, 167 (D.C. Cir. 2001) ("Without confirmation that the
Government took certain basic steps to ascertain whether an individual was dead or alive, we
are unable to say whether the Government reasonably balanced the interests in personal
privacy against the public interest in release of the information at issue."); Schoenman, 576 F.
Supp. 2d at 9-10, 13-14 (declaring that an agency must make reasonable effort to determine
an individual's life status prior to invoking privacy interest under Exemptions 6 and 7(C), and
finding that "agencies must take pains to ascertain life status in the first instance, i.e., in
initially balancing the privacy and public interests at issue").
Privacy Interest 445
ago.104
When analyzing protectible privacy interests, "survivor privacy" warrants discussion.
The Supreme Court held unanimously in Favish that the "FOIA recognizes surviving family
members' right to personal privacy with respect to their close relative's death-scene
images."105 This case involved a request for several death-scene photographs of a former
Deputy White House Counsel.106 The government protected the photographs under the FOIA,
but the lower courts ordered them disclosed.107 Favish argued, relying on particular language
in Reporters Committee, that only the individual who was the direct "subject" of the records
could have a privacy interest in those records.108 The Court rejected this argument, stating
that "[t]he right to personal privacy is not confined, as Favish argues, to the 'right to control
information about oneself.' Favish misreads [our opinion] in Reporters Committee and adopts
too narrow an interpretation of the case's holding."109
The Court then decided that "survivor privacy" was a valid privacy interest protected
by Exemption 7(C), based on three factors. First, Reporters Committee did not restrict
104 Schrecker, 349 F.3d at 662-65 (holding that the FBI's administrative process of using its
"100-year rule," searching the Social Security Death Index if an individual's birthdate is in
records, and using its institutional knowledge, is reasonable and sufficient in determining
whether individuals mentioned in requested records are deceased); see Davis, 460 F.3d at
101-05 (acknowledging FBI's use of "100-year rule"; finding that use of the rule was destined
to fail when applied to audiotapes, as opposed to documents, and stating that "[t]he
reasonableness of [the "100-year rule"] depends upon the probability that the responsive
records will contain the individual's birth date . . . . [I]t seems highly unlikely that the
participants in an audiotaped conversation would have announced their ages or dates of
birth") (Exemption 7(C)); see also Schoenman, 576 F. Supp. 2d at 10 ("The D.C. Circuit has
concluded that the 100-year rule is, as a general matter, a reasonable prophylactic
presumption."); Summers, 517 F. Supp. 2d at 242 (concluding that defendants adequately
"determined the life status of named agents by using the agency's '100-year rule,' the Who Was
Who publication, the institutional knowledge of employees, and prior FOIA requests" given
that "there are over 1100 responsive documents, and there are likely many third-party named
individuals whose privacy is at issue"); Piper v. DOJ, 428 F. Supp. 2d 1, 3 (D.D.C. Apr. 12, 2006)
(observing that D.C. Circuit in Schrecker, 349 F.3d at 665, concluded that use of "100-year rule"
was reasonable), aff'd, 222 F. App'x 1 (D.C. Cir. 2007).
105 541 U.S. at 170; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"
(posted 4/9/04).
106 541 U.S. at 161.
107 Id. at 161-64; see FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case"
(posted 5/13/03; supplemented 10/10/03) (chronicling case's history).
108 541 U.S. at 165.
109 Id.
446 Exemption 6
personal privacy as "some limited or 'cramped notion' of that idea,"110 so personal privacy is
broad enough to protect surviving family members' "own privacy rights against public
intrusions."111 Second, the Court reviewed the long tradition at common law of
"acknowledging a family's control over the body and death images of the deceased."112 Third,
the Court reasoned that Congress used that background in creating Exemption 7(C), including
the fact that the governmentwide FOIA policy memoranda of two Attorneys General had
specifically extended privacy protection to families.113
Thus, the Supreme Court endorsed the holdings of several lower courts in recognizing
that surviving family members have a protectible privacy interest in sensitive, often graphic,
personal details about the circumstances surrounding an individual's death.114
110 Id. at 165.
111 Id. at 167.
112 Id. at 168. But cf. Showler v. Harper's Magazine Found., No. 05-178, slip op. at 6 (E.D.
Okla. Dec. 22, 2005) (finding that a photograph of a deceased individual was distinguishable
from the death-scene photographs in Favish because, inter alia, the photograph "was taken
at a public, newsworthy event" and "was the same scene the funeral attendees observed").
113 541 U.S. at 169 (citing Attorney General's Memorandum on the Public Information Section
of the Administrative Procedure Act (FOIA) 36 (June 1967) and Attorney General's
Memorandum on the 1974 Amendments to the Freedom of Information Act 9-10 (Feb. 1975)).
114 See, e.g., Hale v. DOJ, 973 F.2d 894, 902 (10th Cir. 1992) (perceiving "no public interest
in photographs of the deceased victim, let alone one that would outweigh the personal privacy
interests of the victim's family") (Exemption 7(C)), cert. granted, vacated & remanded on other
grounds, 509 U.S. 918 (1993); Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (affirming
nondisclosure of autopsy reports of individuals killed by cyanide-contaminated products);
Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182, 186 (D.C. Cir. 1987) (noting that some
autopsy reports might "shock the sensibilities of surviving kin"); Marzen v. HHS, 825 F.2d 1148,
1154 (7th Cir. 1987) (holding deceased infant's medical records exempt because their release
"would almost certainly cause . . . parents more anguish"); Isley v. EOUSA, No. 96-0123, slip
op. at 3-4 (D.D.C. Feb. 25, 1998) (approving the withholding of "medical records, autopsy
reports and inmate injury reports pertaining to a murder victim as a way of protecting
surviving family members"), aff'd on other grounds, 203 F.3d 52 (D.C. Cir. 1999) (unpublished
table decision); Katz v. NARA, 862 F. Supp. 476, 483-86 (D.D.C. 1994) (holding that Kennedy
family's privacy interests would be invaded by disclosure of "graphic and explicit" JFK autopsy
photographs), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir. 1995); N.Y. Times Co. v. NASA,
782 F. Supp. 628, 631-32 (D.D.C. 1991) (withholding audiotape of voices of Space Shuttle
Challenger astronauts recorded immediately before their deaths, to protect family members
from pain of hearing final words of loved ones); Cowles Publ'g Co. v. United States, No. 90-349,
slip op. at 6-7 (E.D. Wash. Dec. 20, 1990) (withholding identities of individuals who became
ill or died from radiation exposure, in order to protect living victims and family members of
deceased persons from intrusive contacts and inquiries). But see Journal-Gazette Co. v. U.S.
Dep't of the Army, No. F89-147, slip op. at 8-9 (N.D. Ind. Jan. 8, 1990) (holding that because
autopsy report of Air National Guard pilot killed in training exercise contained "concise
(continued...) Privacy Interest 447
Although courts have found that one's status as a public figure might in some
circumstances factor into the privacy balance, a public figure does not, by virtue of his status,
forfeit all rights of privacy.115 Indeed, in Favish, the deceased former Deputy White House
Counsel's status as both a public figure and a high-level government official did not, in the
114(...continued)
medical descriptions of the cause of death," not "graphic, morbid descriptions," survivors'
minimal privacy interest was outweighed by public interest); cf. Outlaw v. U.S. Dep't of the
Army, 815 F. Supp. 505, 506 (D.D.C. 1993) (ordering disclosure in absence of evidence of
existence of any survivor whose privacy would be invaded by release of murder-scene
photographs of man murdered twenty-five years earlier); Rabbitt v. Dep't of the Air Force, 401
F. Supp. 1206, 1210 (S.D.N.Y. 1974) (ordering disclosure of medical records of two Air Force
personnel who died in airplane accident).
115 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 (noting that "while the
privacy interests of public officials are 'somewhat reduced' when compared to those of private
citizens, 'individuals do not waive all privacy interests . . . simply by taking an oath of public
office.'" (quoting Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001))); Kimberlin,
139 F.3d at 949 (stating that ''although government officials, as we have stated before, may
have a 'somewhat diminished' privacy interest, they 'do not surrender all rights to personal
privacy when they accept a public appointment'") (quoting Quinon v. FBI, 86 F.3d 1222, 1230
(D.C. Cir. 1996))) (Exemption 7(C)); Fund for Constitutional Gov't v. NARA, 656 F.2d 856, 865
(D.C. Cir. 1981); Nat'l Sec. News Serv., 584 F. Supp. 2d at 96 (finding that "[d]isclosure of the
requested patient admission records only would reveal who was admitted to the Naval
Medical Center; it would reveal nothing about the Navy's own conduct" and "[t]his is so
irrespective of whether one of the persons then admitted to the hospital is now a public
figure"); Canaday, 545 F. Supp. 2d at 118 (stating that public figures "do not forfeit all vestiges
of privacy"); Phillips v. ICE, 385 F. Supp. 2d 296, 305 (S.D.N.Y. 2005) (disregarding requester's
unsupported claim that former foreign government officials have no "legitimate privacy
interest[s]"); Wolk v. United States, No. 04-832, 2005 WL 465382, at *5 (E.D. Pa. Feb. 28, 2005)
("[O]fficials do not surrender all of their rights to personal privacy when they accept a public
appointment.") (Exemptions 6 and 7(C)); Elec. Privacy Info. Ctr. v. DOJ, No. 02-0063, slip op.
at 10 n.7 (D.D.C. Mar. 11, 2004) (concluding that "government officials do not lose all personal
private rights when they accept a public appointment"); Billington v. DOJ, 11 F. Supp. 2d 45,
62 (D.D.C. 1998) (finding that although public officials in some circumstances have diminished
privacy, residual privacy interests militate against disclosure of nonpublic details), aff'd in
pertinent part, 233 F.3d 581 (D.C. Cir. 2000); cf. McNamera v. DOJ, 974 F. Supp. 946, 959 (W.D.
Tex. 1997) (stating that "[s]imply because an individual was once a public official does not
mean that he retains that status throughout his life," and holding that three years after a
disgraced sheriff resigned he was "a private, not a public figure") (Exemption 7(C)); Steinberg
v. DOJ, No. 93-2409, slip op. at 11 (D.D.C. July 14, 1997) ("[E]ven widespread knowledge about
a person's business dealings cannot serve to diminish his or her privacy interests in matters
that are truly personal.") (Exemption 7(C)). But cf. Judicial Watch, Inc. v. DOJ, No. 00-745,
2001 U.S. Dist. LEXIS 25731, at *13 (D.D.C. Feb. 12, 2001) (suggesting that pardoned prisoners
lost any privacy interests since they "arguably bec[a]me public figures through their wellpublicized
pleas for clemency and [given] the speeches some have made since their release")
(Exemption 7(C)).
448 Exemption 6
Supreme Court's opinion, "detract" at all from the "weighty privacy interests involved."116
Likewise, a candidate for a political office, either federal or nonfederal, does not forfeit all
rights to privacy.117 Notably, courts afford foreign nationals the same basic privacy rights
under the FOIA as they afford U.S. citizens.118
Individuals do not waive their privacy rights merely by signing a document that states
that information may be released pursuant to the FOIA.119 As one court has observed, such
a statement is not a waiver of the right to confidentiality, it is merely a warning by the agency
and corresponding acknowledgment by the signers "that the information they were providing
could be subject to release." 120 Similarly, the Court of Appeals for the Eighth Circuit has held
that individuals who sign a petition, knowing that those who sign afterward will observe their
116 541 U.S. at 171.
117 See Nation Magazine, 71 F.3d at 894 & n.9 ("Although candidacy for federal office may
diminish an individual's right to privacy . . . it does not eliminate it[.]"); Hunt v. U.S. Marine
Corps, 935 F. Supp. 46, 54 (D.D.C. 1996) (finding that senatorial candidate has unquestionable
privacy interest in his military service personnel records and medical records); Nation
Magazine v. Dep't of State, No. 92-2303, 1995 WL 17660254, at *10 (D.D.C. Aug. 18, 1995)
(upholding refusal to confirm or deny existence of investigative records pertaining to
presidential candidate); cf. Iowa Citizens, 256 F. Supp. 2d at 954 (ruling that nominee for
position of Undersecretary of Agriculture for Rural Development does not forfeit all privacy
rights).
118 See Ray, 502 U.S. at 175-79 (applying traditional analysis of privacy interests under FOIA
to Haitian nationals); Judicial Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 10 n.4 (D.D.C. 2007)
(stating that "courts in our Circuit have held that foreign nationals are entitled to the same
privacy rights under FOIA as United States citizens"); Ctr. for Nat'l Sec. Studies v. DOJ, 215 F.
Supp. 2d 94, 105-06 (D.D.C. 2002) (recognizing, without discussion, the privacy rights of post
9/11 detainees who were unlawfully in the United States) (Exemption 7(C)), aff'd on other
grounds, 331 F.3d 918 (D.C. Cir. 2003); Schiller v. INS, 205 F. Supp. 2d 648, 662 (W.D. Tex. 2002)
(finding that "[a]liens [and] their families . . . have a strong privacy interest in nondisclosure
of their names, addresses, and other information which could lead to revelation of their
identities") (Exemption 7(C)); Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at
*8 (D.D.C. Mar. 30, 2001) (protecting asylum application filed on behalf of Cuban émigré);
Hemenway, 601 F. Supp. at 1005-07 (according Exemption 6 protection to citizenship
information regarding news correspondents accredited to attend State Department press
briefings).
119 See Lakin Law Firm, 352 F.3d at 1124-25 (explaining that a warning on Federal Trade
Commission website that "information provided may be subject to release under the FOIA"
cannot be construed as a waiver by consumers) (emphasis added); Hill, 77 F. Supp. 2d at 8
(noting that disclosure warning in loan documents was "a warning, not a waiver," and that
"[t]he statement does not say that the government will not attempt to protect privacy rights
by asserting them, and indeed the government is expected to do so.").
120 Hill, 77 F. Supp. 2d at 8 (holding borrowers of Farmers Home Administration loans did
not waive their privacy interests by signing loan-application documents that contained a mere
warning information supplied could be released). Privacy Interest 449
signatures, do not waive their privacy interests.121 While such persons "would have no reason
to be concerned that a limited number of like-minded individuals may have seen their names,"
they may well be concerned "that the petition not become available to the general public,
including those opposing [the petitioners' position]."122
In addition, individuals who testify at criminal trials do not forfeit their rights to privacy
except on those very matters that become part of the public record.123 Nor do individuals who
plead guilty to criminal charges lose all rights to privacy with regard to the proceedings
against them.124 Similarly, individuals who provide law enforcement agencies with reports
of illegal conduct have well-recognized privacy interests, particularly when such persons
reasonably fear reprisals for their assistance.125 Even absent any evidence of fear of reprisals,
121 See Campaign for Family Farms, 200 F.3d at 1188.
122 Id.
123 See Isley, 1999 WL 1021934, at *4; Kiraly v. FBI, 728 F.2d 273, 279 (6th Cir. 1984); Brown
v. FBI, 658 F.2d 71, 75 (2d Cir. 1981); see also Scales, 594 F. Supp. 2d at 91 ("The mere fact that
Hubbard testified at trial, or that she acknowledged at trial that there were forgery charges
pending against her at that time, does not constitute a waiver of her privacy rights to all other
related information, as requested by the plaintiff."); Jarvis, 2008 WL 2620741, at *13 ("That the
individual testified in a public trial, however, is not necessarily a waiver.") (Exemption 7(C));
Valdez v. DOJ, 474 F. Supp. 2d 128, 133 (D.D.C. 2007) ("The fact that a third party testified
publicly at trial does not diminish or waive his privacy interest.") (Exemption 7(C)); Meserve
v. DOJ, No. 04-1844, 2006 WL 2366427, at *7 (D.D.C. Aug. 14, 2006) ("[A] witness who testifies
at trial does not waive her personal privacy."); Butler v. DOJ, 368 F. Supp. 2d 776, 783-84 (E.D.
Mich. 2005) (protecting information about "informant who gave grand jury testimony
implicating Plaintiff in crimes") (Exemptions 6 and 7(C)); Coleman v. FBI, 13 F. Supp. 2d 75, 80
(D.D.C. 1998); cf. Irons v. FBI, 880 F.2d 1446, 1454 (1st Cir. 1989) (en banc) (holding that
disclosure of any source information beyond that actually testified to by confidential source
is not required) (Exemption 7(D)).
124 See Times Picayune, 37 F. Supp. 2d at 477-78 (refusing to order release of a mug shot,
which with its "unflattering facial expressions" and "stigmatizing effect [that] can last well
beyond the actual criminal proceedings . . . preserves, in its unique and visually powerful way,
the subject individual's brush with the law for posterity"); see also McNamera, 974 F. Supp.
at 959 (holding that convict's privacy rights are diminished only with respect to information
made public during criminal proceedings against him) (Exemption 7(C)).
125 See McCutchen v. HHS, 30 F.3d 183, 189 (D.C. Cir. 1994) ("The complainants [alleging
scientific misconduct] have a strong privacy interest in remaining anonymous because, as
'whistle-blowers,' they might face retaliation if their identities were revealed.") (Exemption
7(C)); Holy Spirit, 683 F.2d at 564-65 (concurring opinion) (recognizing that writers of letters
to authorities describing "'bizarre' and possibly illegal activities . . . could reasonably have
feared reprisals against themselves or their family members") (Exemptions 6 and 7(C));
Amuso, 600 F. Supp. 2d at 93 ("Disclosure of the interviewee's identity could result in
harassment, intimidation, or threats of reprisal or physical harm to the interviewee.");
Clemmons, 2007 WL 1020827, at *6 (stating that "there is a significant interest in maintaining
(continued...) 450 Exemption 6
however, witnesses who provide information to investigative bodies -- administrative and
civil, as well as criminal -- ordinarily are accorded privacy protection. 126 (For a more
125(...continued)
the secrecy of the identity of witnesses and third party interviewees so that law enforcement
can continue to gather information through these interviews while assuring that the
interviewees will not be subject to harassment or reprisal") (Exemptions 6 and 7(C));
Balderrama v. DHS, No. 04-1617, 2006 WL 889778, at *9 (D.D.C. Mar. 30, 2006) ("[T]he
individuals whose identities have been protected -- witnesses, undercover officers, informants
-- maintain a substantial privacy interest in not being identified with law enforcement
proceedings.") (Exemptions 6 and 7(C)); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest
Serv., No. 05-6015, 2005 WL 3488453, at *3 (D. Or. Dec. 21, 2005) (protecting identities of lowlevel
and mid-level Forest Service employees who cooperated with accident investigation,
because "these employees could face harassment"), aff'd, 524 F.3d 1021 (9th Cir. 2008);
Billington v. DOJ, 301 F. Supp. 2d 15, 19-21 (D.D.C. 2004) (protecting identity of reporter who
furnished interview notes to State Department, partly based upon existence of "substantial"
fear of reprisal by Lyndon LaRouche followers); McQueen v. United States, 264 F. Supp. 2d
502, 519-20 (S.D. Tex. 2003) (protecting names and identifying information of grand jury
witnesses and other sources when suspect had made previous threats against witnesses)
(Exemption 7(C)), aff'd per curiam, 100 F. App'x 964 (5th Cir. 2004); Summers v. DOJ, No. 87
3168, slip op. at 4-15 (D.D.C. Apr. 19, 2000) (protecting identities of individuals who provided
information to FBI Director J. Edgar Hoover concerning well-known people "because persons
who make allegations against public figures are often subject to public scrutiny"); Ortiz v.
HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (noting that probable close relationship between
plaintiff and author of letter about her to HHS was likely to lead to retaliation); Cappabianca
v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1564-65 (M.D. Fla. 1994) (finding that the
"opportunity for harassment or embarrassment is very strong" in a case involving the
investigation of "allegations of harassment and retaliation for cooperation in a prior
investigation") (Exemptions 6 and 7(C)).
126 See, e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) (concluding that "[t]he public's
interest in learning the identities of witnesses and other third parties is minimal because the
information tells little or nothing about either the administration of the INS program or the
Inspector General's conduct of its investigation") (Exemptions 6 and 7(C)), vacated &
remanded, 541 U.S. 970, on remand, 380 F.3d 110 (2d Cir. 2004) (per curiam); Ford v. West, No.
97-1342, 1998 WL 317561, at *1-2 (10th Cir. June 12, 1998) (finding thoughts, sentiments, and
emotions of co-workers questioned in investigation of racial harassment claim to be within
protections of Exemptions 6 and 7(C)); Citizens for Responsibility & Ethics in Wash. v. Nat'l
Indian Gaming Comm'n, 467 F. Supp. 2d 40, 53 (D.D.C. 2006) ("The fact that an individual
supplied information to assist [National Indian Gaming Commission] in its investigations is
exempt from disclosure under FOIA, regardless of the nature of the information supplied.")
(Exemptions 6 and 7(C)); Brown v. EPA, 384 F. Supp. 2d 271, 278-80 (D.D.C. 2005) (protecting
government employee-witnesses and informants because "[t]here are important principles at
stake in the general rule that employees may come forward to law enforcement officials with
allegations of government wrongdoing and not fear that their identities will be exposed
through FOIA") (Exemption 7(C)); Wolk, 2005 WL 465382, at *5 n.7 (recognizing that
"interviewees who participate in FBI background investigations have a substantial privacy
interest") (Exemptions 6 and 7(C)); Hayes v. U.S. Dep't of Labor, No. 96-1149, slip op. at 9-10
(continued...) Privacy Interest 451
detailed discussion of the privacy protection accorded such law enforcement sources, see
Exemption 7(C), below.)
Faced with reverse FOIA challenges, several courts have had to consider whether to
order agencies not to release records pertaining to individuals that agencies had determined
should be disclosed.127 These privacy reverse FOIA cases are similar in posture to the more
common reverse FOIA cases that are based upon a submitter's claim that information falls
within Exemption 4, cases which ordinarily involve the agency conducting "submitter notice"
126(...continued)
(S.D. Ala. June 18, 1998) (magistrate's recommendation) (protecting information that "would
have divulged personal information or disclosed the identity of a confidential source" in an
OSHA investigation) (Exemption 7(C)), adopted, (S.D. Ala. Aug. 10, 1998); Tenaska Wash.
Partners v. DOE, No. 8:96-128, slip op. at 6-8 (D. Neb. Feb. 19, 1997) (protecting information
that would "readily identify" individuals who provided information during routine IG audit);
McLeod v. Peña, No. 94-1924, slip op. at 4 (D.D.C. Feb. 9, 1996) (protecting in their entireties
memoranda and witness statements concerning investigation of plaintiff's former
commanding officer when unit consisted of eight officers and twenty enlisted personnel)
(Exemption 7(C)), summary affirmance granted sub nom. McLeod v. U.S. Coast Guard, No. 96
5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997). But see Cooper Cameron Corp. v. U.S. Dep't
of Labor, 280 F.3d 539, 553-54 (5th Cir. 2002) (ordering disclosure of information that could link
witnesses to their OSHA investigation statements, because agency presented no evidence of
"possibility of employer retaliation") (Exemption 7(C)); Fortson, 407 F. Supp. 2d at 17 (deciding
that witness statements compiled during an investigation of an equal employment
opportunity complaint filed by the plaintiff must be released due to the following: the
government previously released the names of persons who gave statements during the
investigation; the agency offered only "pure speculation" of potential for harm to be caused by
disclosure of the statements; and "witness statements made during a discrimination
investigation are not the type of information that exemption 6 is designed to protect"); Fine
v. DOE, 823 F. Supp. 888, 896 (D.N.M. 1993) (ordering disclosure based partly upon the fact
that the plaintiff no longer was employed by the agency and was "not in a position on-the-job
to harass or intimidate employees of DOE/OIG and/or its contractors").
127 See, e.g., Nat'l Org. for Women v. SSA, 736 F.2d 727, 728 (D.C. Cir. 1984) (per curiam)
(affirming district court's decision to enjoin release of affirmative action plans submitted to
SSA) (Exemptions 4 and 6); Schmidt v. U.S. Dep't of the Air Force, No. 06-3069, 2007 WL
2812148, at *11 (C.D. Ill. Sept. 20, 2007) (finding that plaintiff has a valid privacy interest
regarding information about his discipline; however, disclosure of records regarding
disciplinary actions against plaintiff is proper because "[i]t is undisputed that the friendly-fire
incident garnered significant public and media attention" and "[t]he release of Schmidt's
reprimand gave the public, in the United States and around the world, insight into the way
in which the United States government was holding its pilot accountable") (Reverse
FOIA/Privacy Act "wrongful disclosure" suit); Sonderegger v. U.S. Dep't of the Interior, 424 F.
Supp. 847, 853-56 (D. Idaho 1976) (ordering temporary injunction of release of claimant names
and amount claimed for victims of Teton Dam disaster, while allowing release of amount paid
and category of payment with all personal identifying information deleted) (Exemptions 4 and
6). 452 Exemption 6
pursuant to the requirements of Executive Order 12,600.128 (See the further discussion of this
point under Reverse FOIA, below.) Despite this similarity, though, courts have generally not
found any requirement that an agency notify record subjects of their intent to disclose
personal information about them or that it "track down an individual about whom another has
requested information merely to obtain the former's permission to comply with the request."129
In a reverse FOIA case that reached the Court of Appeals for the Eighth Circuit, the
signers of a petition requesting a referendum to abolish a mandatory payment by pork
producers sued to prevent the Department of Agriculture from releasing their names pursuant
to a FOIA request.130 The Eighth Circuit agreed that, under the standards of the
Administrative Procedure Act,131 the Department of Agriculture's initial disclosure
determination was not in accordance with law and the names must be withheld.132
128 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. § 552 note (2006), and in FOIA Update, Vol. VIII,
No. 2, at 2-3; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted
4/9/04) (comparing the operation of the "submitter notice" provision to cases involving
personal privacy, where the individuals whose privacy "interests are being protected under
the FOIA rarely are aware of th[e FOIA] process, let alone involved in it").
129 Blakey v. DOJ, 549 F. Supp. 362, 365 (D.D.C. 1982) (Exemption 7(C)), aff'd in part &
vacated in part, 720 F.2d 215 (D.C. Cir. 1983); see Halpern v. FBI, No. 94-CV-365A, 2002 WL
31012157, at *10 (W.D.N.Y. Sept. 1, 2001) (magistrate's recommendation) (finding that there
exists "no authority requiring the Government to contact [individuals mentioned in
documents] for Exemption 6 to apply"), adopted, (W.D.N.Y. Oct. 17, 2001); cf. Hemenway, 601
F. Supp. at 1007 (placing burden on requester, not agency, to contact foreign correspondents
for requested citizenship information after receiving list of correspondents with office
telephone numbers and addresses, and noting that correspondents are "free to decline to
respond"). But see Associated Press v. DOD, 395 F. Supp. 2d 15, 16-17 & n.1 (S.D.N.Y. 2005)
(requiring agency to ask Guantanamo Bay detainees whether they wished their identifying
information to be released to plaintiff, based on fact that "detainees are in custody and
therefore readily available"); cf. War Babes v. Wilson, 770 F. Supp. 1, 4-5 (D.D.C. 1990)
(allowing agency sixty days to meet burden of establishing privacy interest by obtaining
affidavits from World War II servicemembers who objected to release of their addresses to
British citizens seeking to locate their fathers).
130 Campaign for Family Farms, 200 F.3d at 1182-84.
131 5 U.S.C. §§ 701-706 (2006) ("A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.");
see Chrysler v. Brown, 441 U.S. 281, 318 (1979) (deciding that judicial review based on
administrative record according to "arbitrary, capricious, or not in accordance with law"
standard applies to reverse FOIA cases).
132 Campaign for Family Farms, 200 F.3d at 1184-89; see also AFL-CIO v. Fed. Election
Comm'n, 177 F. Supp. 2d 48, 61-63 (D.D.C. 2001) (finding agency's refusal to invoke Exemption
7(C) to withhold identities of individuals in its investigative files to be "arbitrary, capricious
and contrary to law"), aff'd on other grounds, 333 F.3d 168 (D.C. Cir. 2003); Forest Guardians
v. U.S. Forest Serv., No. 99-0615, slip op. at 39-45 (D.N.M. Jan. 29, 2001) (setting aside agency's
(continued...)
Privacy Interest 453
In another decision involving the Department of Agriculture, arising in a reverse FOIA
context, the District Court for the Southern District of Texas found that an agency decision to
release identifying information about farmers and ranchers was incorrect and that this
information must be withheld.133 However, it went much further by issuing a permanent
injunction that prohibited the agency from releasing this sort of information in any form.134 On
appeal, the Court of Appeals for the Fifth Circuit concluded that the district court lacked the
jurisdiction to issue such a broad injunction because the Department of Agriculture had
already agreed to not release the information at issue;135 moreover, that injunction was found
to be overbroad because it prohibited disclosures outside the context of the FOIA request that
was at issue in that case.136
By contrast, a Native Hawaiian group brought suit to enjoin the Department of the Navy
from making public certain information concerning a large group of Native Hawaiian human
remains that had been inventoried pursuant to the Native American Graves Protection and
Repatriation Act.137 The court in that case held that the agency properly had determined that
the information did not qualify for Exemption 6 protection and that it could be released.138
Taking all of the aforementioned information into consideration when assessing
whether there is a protectible privacy interest, it is important to remember that if no
protectible privacy interest is ascertained, further analysis is unnecessary and the information
at issue must be disclosed. 139 If a protectible privacy interest is found to exist, the public
132(...continued)
decision to disclose personal financial information on escrow waiver forms that are used by
banks to record use of federal grazing permits as loan collateral) (reverse FOIA suit).
133 Doe v. Veneman, 230 F. Supp. 2d at 749-51.
134 Doe v. Veneman, No. 99-335, slip op. at 4-5 (W.D. Tex. Feb. 14, 2003).
135 Doe v. Veneman, 380 F.3d 807, 813-16 (5th Cir. 2004) ("Even though [the agency] decided
not to release personal . . . information [about participants in a livestock protection program],
the district court enjoined the release of personal information contained in the . . .
[management information system] database. By doing so, the district court acted without an
actual controversy and exceeded the legal basis for review under the APA.").
136 Id. at 818-20 (finding district court's injunction to be overbroad on several grounds).
137 Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1402-04 (D. Haw. 1995).
138 Id. at 1412-13 (concluding that Exemption 6 was not intended to protect information
pertaining to human remains, nor to protect information pertaining to large groups in which
individuals are not identifiable).
139 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest is
implicated . . . FOIA demands disclosure'" (quoting NARFE, 879 F.2d at 874)); Ripskis, 746 F.2d
at 3; Finkel, 2007 WL 1963163, at *9 (concluding that no balancing analysis was required "due
to the Court's determination that the [defendant] has failed to meet its heavy burden on the
issue of whether disclosure will invade the inspectors' privacy"); Holland, 1992 WL 233820, at
(continued...)
454 Exemption 6
interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure.140
Public Interest
Once it has been determined that a substantial privacy interest is threatened by a
requested disclosure, the second step in the balancing process comes into play; this stage of
the analysis requires an assessment of the public interest in disclosure.141 The burden of
establishing that disclosure would serve the public interest is on the requester.142 In DOJ v.
Reporters Committee for Freedom of the Press, the Supreme Court limited the concept of
public interest under the FOIA to the "core purpose" for which Congress enacted it: To "shed[]
light on an agency's performance of its statutory duties." 143 Information that does not directly
139(...continued)
*16 (stating that information must be disclosed when there is no significant privacy interest,
even if public interest is also de minimis).
140 See Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted' requires us
to balance the family's privacy interest against the public interest in disclosure.") (Exemption
7(C)).
141 See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C):
Step-by-Step Decisionmaking").
142 See Associated Press v. DOD, 549 F.3d 62, 66 (2d Cir. 2008) ("The requesting party bears
the burden of establishing that disclosure of personal information would serve a public
interest cognizable under FOIA."); Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 nn.8 &
13 (D.C. Cir. 1987); see also NARA v. Favish, 541 U.S. 157, 175 (2004) (instructing that the
balance does not even come "into play" when a requester has produced no evidence to
"warrant a belief by a reasonable person that the alleged Government impropriety might have
occurred") (Exemption 7(C)); Rogers v. Davis, No. 08-177, 2009 WL 213034, at *2 (E.D. Mo. Jan.
28, 2009) ("The burden of establishing that the disclosure would serve the public interest . .
. is on the requester."); Salas v. Office of Inspector General, 577 F. Supp. 2d 105, 112 (D.D.C.
2008) ("It is the requester's obligation to articulate a public interest sufficient to outweigh an
individual's privacy interest, and the public interest must be significant."); Lipsey v. EOUSA,
No. 06-423, 2007 WL 842956, at *5 (D.D.C. Mar. 19, 2007) ("Once a privacy interest is identified
under Exemption 7(C), the FOIA records requester must establish that (1) the public interest
is a significant one; and (2) the information is likely to advance that interest."); Prison Legal
News v. Lappin, 436 F. Supp. 2d 17, 22 (D.D.C. 2006) ("The burden of satisfying the 'public
interest standard' is on the requester.").
143 489 U.S. 749, 773 (1989); see Consumers' Checkbook Ctr. for the Study of Servs. v. HHS,
554 F.3d 1046, 1051 (D.C. Cir. 2009) ("The requested information must 'shed[ ] light on an
agency's performance of its statutory duties.'" (quoting Reporters Comm., 489 U.S. at 773)); see
also O'Kane v. U.S. Customs Serv., 169 F.3d 1308, 1310 (11th Cir. 1999) (per curiam) (affirming
that Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat.
3048, do not overrule Reporters Committee definition of "public interest"); cf. Favish, 541 U.S.
at 172 (reiterating the Reporters Committee "public interest" standard, and characterizing it
as "a structural necessity in a real democracy" that "should not be dismissed" – despite
(continued...) Public Interest 455
reveal the operations or activities of the federal government,144 the Supreme Court repeatedly
has stressed, "falls outside the ambit of the public interest that the FOIA was enacted to
serve."145 If an asserted public interest is found to qualify under this standard, it then must
143(...continued)
arguments by amici in the case that Reporters Committee had been "overruled" by the
Electronic FOIA amendments since 1996).
144 See Landano v. DOJ, 956 F.2d 422, 430 (3d Cir. 1992) (stating that there is "no FOIArecognized
public interest in discovering wrongdoing by a state agency") (Exemption 7(C)),
cert. denied on Exemption 7(C) question, 506 U.S. 868 (1992), & rev'd & remanded on other
grounds, 508 U.S. 165 (1993); Phillips v. Immigration & Customs Enforcement, 385 F. Supp. 2d
296, 305 (S.D.N.Y. 2005) (observing that, although privacy interests of government officials
may be lessened by countervailing public interest, that idea "would appear to be inapplicable
to former foreign government officials"); McMillian v. BOP, No. 03-1210, 2004 WL 4953170, at
7 n.11 (D.D.C. July 23, 2004) (ruling that the plaintiff's argument that an audiotape would
show the misconduct of the District of Columbia Board of Parole was irrelevant because "the
FOIA is designed to support the public interest in how agencies of the federal government
conduct business"); Garcia v. DOJ, 181 F. Supp. 2d 356, 374 (S.D.N.Y. 2002) (recognizing that
the "discovery of wrongdoing at a state as opposed to a federal agency . . . is not a goal of
FOIA") (Exemption 7(C)); see also FOIA Update, Vol. XII, No. 2, at 6 (advising that
"government" should mean federal government); cf. Lissner v. U.S. Customs Serv., 241 F.3d
1220, 1223 & n.2 (9th Cir. 2001) (finding a public interest in the agency's treatment of city
police officers arrested for smuggling steroids, but declining to "address the issue of whether
opening up state and local governments to scrutiny also raises a cognizable public interest
under the FOIA") (Exemption 7(C)).
145 Reporters Committee 489 U.S. at 775; see Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355,
355-56 (1997); DOD v. FLRA, 510 U.S. 487, 497 (1994); see also, e.g., Consumers' Checkbook,
554 F.3d at 1051 ("'[I]nformation about private citizens . . . that reveals little or nothing about
an agency's own conduct' does not serve a relevant public interest under FOIA." (quoting
Reporters Comm, 489 U.S. at 773)); Kishore v. DOJ, 575 F. Supp. 2d 243, 257 (D.D.C. 2008)
("Information about individuals that does not directly reveal the operations or activities of the
government-which is the focus of FOIA-'falls outside the ambit of the public interest that the
FOIA was enacted to serve' and may be protected under Exemption 7(C)." (quoting Reporters
Comm., 489 U.S. at 775)); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d
373, 382 (D.D.C. 2007) ("When the material in the government's control is a compilation of
information about private citizens, rather than a record of government actions, there is little
legitimate public interest that would outweigh the invasion of privacy because the information
reveals little or nothing about an agency's own conduct."); Piper v. DOJ, 428 F. Supp. 2d 1, 3
(D.D.C. 2006) (reasoning that "the public interest in knowing how the Department of Justice
. . . handles its investigations 'is served whether or not the names and identifying information
of third parties are redacted'"); Iowa Citizens for Cmty. Improvement v. USDA, 256 F. Supp. 2d
946, 951 (S.D. Iowa 2002) (declaring that while a presidential nominee's "fitness for public
office may be of great popular concern to the public," such concern "does not translate into a
real public interest that is cognizable . . . [under] the FOIA"); Gallant v. NLRB, No. 92-873, slip
op. at 8-10 (D.D.C. Nov. 6, 1992) (concluding that disclosure of names of individuals to whom
NLRB Member sent letters in attempt to secure reappointment would not add to
(continued...) 456 Exemption 6
be accorded some measure of value so that it can be weighed against the threat to privacy.146
And, as the Supreme Court in Favish emphasized, "the public interest sought to be advanced
[must be] a significant one."147
In Reporters Committee, the Supreme Court held that the requester's personal interest
is irrelevant to the public interest analysis. First, as the Court emphasized, the requester's
identity can have "no bearing on the merits of his or her FOIA request."148 In so declaring, the
145(...continued)
understanding of NLRB's performance of its duties), aff'd on other grounds, 26 F.3d 168 (D.C.
Cir. 1994); Andrews v. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (finding that although
release of an individual's address, telephone number, and place of employment might serve
a general public interest in the satisfaction of monetary judgments, "it does not implicate a
public interest cognizable under the FOIA"); FOIA Update, Vol. XVIII, No. 1, at 1; ("Supreme
Court Rules in Mailing List Case"); FOIA Update, Vol. X, No. 2, at 4, 6 ("OIP Guidance: Privacy
Protection Under the Supreme Court's Reporters Committee Decision").
146 See, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Ripskis v. HUD, 746 F.2d
1, 3 (D.C. Cir. 1981); Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d
856, 862 (D.C. Cir. 1981).
147 541 U.S. at 172; see also Martin v. DOJ, 488 F.3d 446, 458 (D.C. Cir. 2007) ("'In order to
trigger the balancing of public interests against private interests, a FOIA requester must (1)
show that the public interest sought to be advanced is a significant one, an interest more
specific than having the information for its own sake, and (2) show the information is likely to
advance that interest.'" (quoting Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007))); Carpenter
v. DOJ, 470 F.3d 434, 440 (1st Cir. 2006) ("Because there is a valid privacy interest, the
requested documents will only be revealed where 'the public interest sought to be advanced
is a significant one, an interest more specific than having the information for its own sake.'"
(quoting Favish, 541 U.S. at 172)); Piper, 428 F. Supp. 2d at 3 ("The requester must
demonstrate that (1) the 'public interest sought to be advanced is a significant one' and (2) the
information requested 'is likely to advance that interest.'" (quoting Favish, 541 U.S. at 172)).
148 489 U.S. at 771; see also Favish, 541 U.S. at 170-72 (reiterating that "[a]s a general rule,
withholding information under FOIA cannot be predicated on the identity of the requester,"
but adding that this does not mean that a requester seeking to establish an overriding "public
interest" in disclosure of requested information "need not offer a reason for requesting the
information"); DOD v. FLRA, 510 U.S. at 496-501; Associated Press v. DOD, 554 F.3d 274, 285
(2d Cir. 2009) ("The public interest 'cannot turn on the purposes for which the request for
information is made,' and 'the identity of the requesting party has no bearing on the merits of
his or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at 771)); Carpenter, 470 F.3d at
440 ("Neither the specific purpose for which the information is requested nor the identity of
the requesting party has any bearing on the evaluation."); EduCap Inc. v. IRS, No. 07-2106,
2009 WL 416428, at *4 (D.D.C. Feb. 18, 2009) ("But under the FOIA, '[e]xcept for cases in which
the objection to disclosure is based on a claim of privilege and the person requesting
disclosure is the party protected by the privilege, the identity of the requesting party has no
bearing on the merits of his or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at
771)); O'Neill v. DOJ, No. 05-0306, 2007 WL 983143, at *8 (E.D. Wis. Mar. 26, 2007) ("The
(continued...)
Public Interest 457
Court ruled that agencies should treat all requesters alike in making FOIA disclosure
decisions; the only exception to this, the Court specifically noted, is that of course an agency
should not withhold from a requester any information that implicates only that requester's
own interest.149 Furthermore, the "public interest" balancing required under the privacy
exemptions should not include consideration of the requester's "particular purpose" in making
the request.150 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 generally.151 This approach thus does not permit attention to the special
148(...continued)
requester's identity, purpose in making the request, and proposed use of the requested
information have no bearing on this balancing test.").
149 489 U.S. at 771; see, e.g., FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Under the
Supreme Court's Reporters Committee Decision").
150 489 U.S. at 771-72; see also Favish, 541 U.S. at 172 (reiterating the Reporters Committee
principle that "citizens should not be required to explain why they seek the information" at
issue, but further elucidating that in a case where the requester's purported public interest
revolves around an allegation of government wrongdoing, "the usual rule that the citizen need
not offer a reason for requesting the information must be inapplicable"); DOD v. FLRA, 510 U.S.
at 496 (holding that “except in certain cases involving claims of privilege, ‘the identity of the
requesting party has no bearing on the merits of his or her FOIA request’”) (quoting Reporters
Comm., 489 U.S. at 773); Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1231 n.2 (D.C. Cir. 2008)
("Although Multi Ag may not want the information to check up on the government itself, the
use for which the requester seeks the information is not relevant for purposes of determining
the public interest under FOIA Exemption 6."); Consumers' Checkbook, 554 F.3d at 1051 ("The
requesting party's intended use for the information is irrelevant to our analysis."); Moore v.
United States, 602 F. Supp. 2d 189, 194 (D.D.C. 2009) ("The plaintiff's personal interest is, no
doubt, of paramount importance to him, but it is irrelevant to the FOIA, which by law is
sensitive only to a public interest."); Rogers, 2009 WL 213034, at *2 ("[T]he purposes for which
the FOIA request is made is irrelevant to whether an invasion of privacy is warranted.");
Thomas v. DOJ, 531 F. Supp. 2d 102, 108 (D.D.C. 2008) ("The purpose for which a requester
seeks federal government records is not relevant in a FOIA case.") (Exemption 7(C)). But see
Seized Prop. Recovery, Corp. v. Customs & Border Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007)
("The Court cannot ignore that Plaintiff's principal reason in seeking the disclosure of the
names and addresses of those persons whose property has been seized by Customs is to
solicit their business.") (Exemptions 6 and 7(C)).
151 489 U.S. at 772; see, e.g., Carpenter, 470 F.3d at 440 (observing that nature of requested
document and its relationship to opening agency action to light of public scrutiny determines
whether invasion of privacy is warranted); People for the Am. Way Found. v. Nat'l Park Serv.,
503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("Accordingly, to assess the public interest, the Court
must examine 'the nature of the requested document and its relationship to the basic purpose
of [FOIA] to open agency action to the light of public scrutiny.'" (quoting Judicial Watch of
Florida, Inc. v. DOJ, 102 F. Supp. 2d 6, 17 (D.D.C. 2002))). 458 Exemption 6
circumstances of any particular FOIA requester. 152 As the Supreme Court stated in its
Reporters Committee decision, whether disclosure of a private document "is warranted must
turn on the nature of the requested document and its relationship to the basic purpose of the
Freedom of Information Act 'to open agency action to the light of public scrutiny’ rather than
on the particular purpose for which the document is being requested."153
Accordingly, a request made for the purpose of challenging a criminal conviction does
not further the public interest;154 nor does a request made in order to obtain or supplement
152 See 489 U.S. at 771-72 & n.20; see also Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v.
FAA, 218 Fed. App'x 479, 482 (6th Cir. 2007) (concluding that "the release of the requested
information is clearly an unwarranted invasion of personal privacy" because "[t]he disclosure
of such information would only serve the private interests of Diemert"); Schiffer v. FBI, 78 F.3d
1405, 1410-11 (9th Cir. 1996) (noting that individual interest in obtaining information about
oneself does not constitute public interest); Ubungen v. ICE, 600 F. Supp. 2d 9, 12 (D.D.C.
2009) (concluding that plaintiff's request for information about the whereabouts or fate of her
sister is "purely personal" and there is no public interest under the FOIA); Salas, 577 F. Supp.
2d at 111 (finding that plaintiff's argument that release of redacted information will expose an
agency's action pertaining to an incident involving plaintiff is insufficient because "[t]his one
incident, though of obvious importance to plaintiff, is not one of such magnitude that it
outweighs the agency employees' substantial privacy interest"); Summers v. DOJ, 517 F. Supp.
2d 231, 240 (D.D.C. 2007) (finding plaintiff's argument "that knowing the names of the FBI
agents in question would enable him to contact them and seek more information about [a
former agent]" insufficient since "the operative inquiry in determining whether disclosure of
a document implicating privacy issues is warranted is the nature of the requested document
itself, not the purpose for which the document is being requested"); Berger v. IRS, 487 F. Supp.
2d 482, 505 (D.N.J. 2007) (stating that disclosure of IRS employee's time sheets "would
primarily serve Plaintiffs' particular private interests as individual taxpayers. Disclosure
would not be 'instrumental in shedding light on the operations of government.'" (quoting Lewis
v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006))); Los Angeles Times
Commc'ns LLC v. Dep't of Labor, 483 F. Supp. 2d 975, 981 (C.D. Cal. 2007) ("Courts weigh the
public interest by considering the interest of the general public, not the private motives,
interests, or needs of a litigant."). But see Finkel v. Dep't of Labor, No. 05-5525, 2007 WL
1963163, at *9 (D.N.J. June 29, 2007) (noting that "plaintiff raises a legitimate public interest
in the information sought because his proposed research concerns OSHA's response to
beryllium sensitization amongst its own inspectors and the general workforce").
153 489 U.S. at 772 (quoting Rose, 425 U.S. at 372).
154 See Cole v. DOJ, No. 04-5329, 2005 U.S. App. LEXIS 7358, at *2-3 (D.C. Cir. Apr. 27, 2005)
(holding that requester's asserted public interest "that disclosure of the records is necessary
to show prosecutorial misconduct is insufficient to overcome Exemption 7(C), because
appellant has failed to put forward a 'meaningful evidentiary showing' that would 'warrant a
belief by a reasonable person that the alleged Government impropriety might have occurred'")
(quoting Favish, 541 U.S. at 174)); Amuso v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("Any
interest in the information for purposes of proving his innocence or proving that government
witnesses perjured testimony at his criminal trial does not overcome the individual's privacy
interest."); Lopez v. EOUSA, 598 F. Supp. 2d 83, 88 (D.D.C. 2009) (rejecting plaintiff's argument
(continued...) Public Interest 459
discovery in a private lawsuit serve the public interest.155 In fact, one court has observed that
if the requester truly had a great need for the records for purposes of litigation, he or she
should seek them in that forum, where it would be possible to provide them under an
appropriate protective order.156 Likewise, in Davy v. CIA, the requester's "personal crusade
to unearth . . . information" that was the subject of a book that he wrote was found not to
relate "in any way to a cognizable public interest."157 Furthermore, the Supreme Court has
found that requesters seeking to vindicate the policies of certain federal statutes, such as the
Federal Service Labor-Management Relations Statute, do not assert a valid public interest in
disclosure, as a requester's purposes are "irrelevant to the FOIA analysis."158
154(...continued)
that "the personal privacy exemptions must yield in the face of the plaintiff's belief that a Brady
violation infected his criminal trial"); Scales v. EOUSA, 594 F. Supp. 2d 87, 91 (D.D.C. 2009)
(stating "that a bald assertion of a Brady violation is insufficient to overcome the individual's
privacy interests in the records at issue"); Thomas v. DOJ, No. 04-112, 2006 WL 722141, at *3
(E.D. Tex. Mar. 15, 2006) ("[T]he interest of a private litigant is not a significant public
interest."); Billington v. DOJ, 11 F. Supp. 2d 45, 63 (D.D.C. 1998) (noting that "requests for
Brady material are 'outside the proper role of FOIA'" (quoting Johnson v. DOJ, 758 F. Supp. 2,
5 (D.D.C. 1991))), aff'd in pertinent part, 233 F.3d 581 (D.C. Cir. 2000).
155 See Carpenter, 470 F.3d at 441 ("There is no public interest in supplementing an
individual's request for discovery.") (criminal trial) (Exemption 7(C)); Horowitz v. Peace Corps,
428 F.3d 271, 278-79 (D.C. Cir. 2005) (civil litigation); Brown v. FBI, 658 F.2d 71, 75 (2d Cir.
1981) (private litigation); Ebersole v. United States, No. 06-2219, 2007 WL 2908725, at *6 (D.
Md. Sept. 24, 2007) ("Thus, FOIA requests are not meant to displace discovery rules.")
(Exemption 7(C)); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1197 (N.D. Cal. 2006) ("Here, plaintiff
expressly acknowledges that she wants the discrimination complaint files to use as possible
evidence in her employment discrimination case . . . [which is] not a significant public interest
warranting disclosure of private information."); Cappabianca v. Comm'r, U.S. Customs Serv.,
847 F. Supp. 1558, 1564 (M.D. Fla. 1994) (seeking records for job-related causes of action
insufficient); Harry v. Dep't of the Army, No. 92-1654, slip op. at 7-8 (D.D.C. Sept. 10, 1993)
(seeking records to appeal negative officer efficiency report insufficient); NTEU v. U.S. Dep't
of the Treasury, 3 Gov't Disclosure Serv. (P-H) ¶ 83,224, at 83,948 (D.D.C. June 17, 1983)
(requesting records for grievance proceeding insufficient).
156 Gilbey v. Dep't of the Interior, No. 89-0801, 1990 WL 174889, at *2 (D.D.C. Oct. 22, 1990);
see also Billington, 11 F. Supp. 2d at 64 (noting that proper forum for challenging alleged
illegal warrantless search is in district court where case was prosecuted); Bongiorno v. Reno,
No. 95-72143, 1996 WL 426451, at *4 (E.D. Mich. Mar. 19, 1996) (observing that the proper
place for a noncustodial parent to seek information about his child is the "state court that has
jurisdiction over the parties, not a FOIA request or the federal court system"); cf. Favish, 541
U.S. at 174 ("There is no mechanism under FOIA for a protective order allowing only the
requester to see whether the information bears out his theory, or for proscribing its general
dissemination.").
157 357 F. Supp. 2d at 88.
158 DOD v. FLRA, 510 U.S. at 499. But cf. Cooper Cameron Corp. v. U.S. Dep't of Labor, 280
(continued...) 460 Exemption 6
Similarly, the Courts of Appeals for the District of Columbia, Second, Third, and Tenth
Circuits have also found that the public interest derived from monitoring compliance with the
Davis-Bacon Act159 is not a public interest whose significance outweighs competing privacy
interests of third parties. 160 These four circuit courts have held that although there may be a
minimal public interest in facilitating the monitoring of compliance with federal labor statutes,
disclosure of personal information that reveals nothing "directly about the character of a
government agency or official" bears only an "attenuated . . . relationship to governmental
activity."161 Accordingly, it has been held that such an "attenuated public interest in disclosure
does not outweigh the construction workers' significant privacy interest in [their names and
addresses]."162 Faced with the same public interest question, the Ninth Circuit took a different
approach but reached the same result.163 The Court of Appeals for the Ninth Circuit found a
public interest in monitoring the agency's "diligence in enforcing Davis-Bacon," but found the
weight to be given that interest weakened when the public benefit was derived neither
directly from the release of the information itself nor from mere tabulation of data or further
research, but rather, from personal contact with the individuals whose privacy was at issue.164
A central purpose of the FOIA is to "check against corruption and to hold the governors
accountable to the governed."165 Indeed, disclosure of information that would inform the
public of violations of the public trust serves a strong public interest and is accorded great
158(...continued)
F.3d 539, 548-49 (5th Cir. 2002) (finding a "public interest in monitoring agencies' enforcement
of the law in specific instances") (Exemption 7(C)).
159 40 U.S.C. §§ 3141-3144, 3146-3147 (2006) (requiring federal contractors to pay their
laborers no less than the prevailing wages for comparable work in their geographical area).
160 See Sheet Metal Workers Int'l Ass'n, Local No. 19 v. VA, 135 F.3d 891, 903-05 (3d Cir.
1998); Sheet Metal Workers Int'l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 997-98 (10th
Cir. 1995); Painting & Drywall Work Pres. Fund, Inc. v. HUD, 936 F.2d 1300, 1303 (D.C. Cir.
1991); Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991).
161 Hopkins, 929 F.2d at 88; see Sheet Metal Workers Int'l Ass'n, Local No. 19, 135 F.3d at
903-05; Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98; Painting & Drywall
Work Pres. Fund, Inc., 936 F.2d at 1303.
162 Painting & Drywall Work Pres. Fund., Inc., 936 F.2d at 1303; see Sheet Metal Workers
Int'l Ass'n, Local No. 9, 63 F.3d at 997-98; Hopkins, 929 F.2d at 88.
163 Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of the Air Force, 26 F.3d 1479,
1484-86 (9th Cir. 1994).
164 Id. at 1485; see also Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98.
165 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also ACLU v. DOD, 543
F.3d 59, 66 (2d Cir. 2008), application to extend time to file petition for cert. granted, No.
08A1068 (J. Ginsburg, May 29, 2009); Multi Ag, 515 F.3d at 1232; News-Press v. DHS, 489 F.3d
1173, 1190 (11th Cir. 2007); Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983);
Wash. Post Co. v. HHS, 690 F.2d 252, 264 (D.C. Cir. 1982); Nat'l Ass'n of Atomic Veterans, Inc.
v. Dir., Def. Nuclear Agency, 583 F. Supp. 1483, 1487 (D.D.C. 1984).
Public Interest 461
weight in the balancing process.166 As the Tenth Circuit has held, "[t]he public interest in
learning of a government employee's misconduct increases as one moves up an agency's
hierarchical ladder."167 As a general rule, demonstrated wrongdoing of a serious and
intentional nature by a high-level government official is of sufficient public interest to
outweigh almost any privacy interest of that official.168
By contrast, both serious and less serious misconduct by low-level agency employees
generally have not been considered of sufficient public interest to outweigh the privacy
166 See Favish, 541 U.S. at 172-73 (stressing that there should be a "necessary nexus
between the requested information and the asserted public interest that would be advanced
by disclosure"); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"
(posted 4/9/04) (discussing the importance of establishing an "actual connection" between the
particular information at issue and the qualifying public interest articulated by the requester).
167 Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007); see, e.g., Cowdery,
Ecker & Murphy, LLC v. Dep't of Interior, 511 F. Supp. 2d 215, 218 (D. Conn. 2007) ("[T]he
Second Circuit found that the official in question's 'high rank, combined with his direct
responsibility for the serious allegations examined . . . tilts strongly in favor of disclosure.'"
(quoting Perlman v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002))).
168 See, e.g., Perlman v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002) (noting subject of request
involved INS general counsel investigated for allegedly granting improper access and
preferential treatment to former INS officials with financial interests in various visa investment
firms, and finding that government employee's high rank and responsibility for serious
allegations tilted the balance strongly in favor of disclosure), cert. granted, vacated &
remanded, 541 U.S. 970 (2004), reinstated after remand, 380 F.3d 110 (2d Cir. 2004); Stern v.
FBI, 737 F.2d 84, 93-94 (D.C. Cir. 1984) (name of high-level FBI official censured for deliberate
and knowing misrepresentation) (Exemption 7(C)); Ferri v. Bell, 645 F.2d 1213, 1218 (3d Cir.
1981) (finding attempt to expose alleged deal between prosecutor and witness to be in public
interest) (Exemption 7(C)), vacated & reinstated in part on reh'g, 671 F.2d 769 (3d Cir. 1982);
Columbia Packing Co. v. USDA, 563 F.2d 495, 499 (1st Cir. 1977) (information about federal
employees found guilty of accepting bribes); Cowdery, 511 F. Supp. 2d at 221 (D. Conn. 2007)
(performance evaluation information pertaining to high ranking federal employee charged
with wrongdoing); Chang v. Dep't of the Navy, 314 F. Supp. 2d 35, 42-45 (D.D.C. 2004)
(information about Naval Commander's nonjudicial punishment for involvement in accident
at sea) (Privacy Act "wrongful disclosure" suit); Wood v. FBI, 312 F. Supp. 2d 328, 345-51 (D.
Conn. 2004) (identifying information linking FBI Supervisory Special Agent's name with
specific findings and disciplinary action taken against him), aff'd in part & rev'd in part, 432
F.3d 78 (2d Cir. 2005); Lurie v. Dep't of the Army, 970 F. Supp. 19, 39-40 (D.D.C. 1997)
(information concerning "mid- to high-level" Army medical researcher whose apparent
misrepresentation and misconduct contributed to appropriation of $20,000,000 for particular
form of AIDS research); Sullivan v. VA, 617 F. Supp. 258, 260-61 (D.D.C. 1985) (reprimand of
senior official for misuse of government vehicle and failure to report accident) (Privacy Act
"wrongful disclosure" suit/Exemption 7(C)); Cong. News Syndicate v. DOJ, 438 F. Supp. 538,
544 (D.D.C. 1977) (misconduct by White House staffers). 462 Exemption 6
interest of the employee.169 The D.C. Circuit has held that there is not likely to be strong
public interest in disclosure of the names of censured employees when the case has not
"occurred against the backdrop of a well-publicized scandal" that has resulted in "widespread
169 See, e.g., Rose, 425 U.S. at 381 (protecting names of cadets found to have violated
Academy honor code); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d
1021, 1025 (9th Cir. 2008) ("[W]e have placed emphasis on the employee's position in her
employer's hierarchical structure as 'lower level officials . . . generally have a stronger interest
in personal privacy than do senior officials.'") (quoting Dobronski v. FCC, 17 F.3d 275, 280 n.4
(9th Cir. 1994)); Trentadue, 501 F.3d at 1234 (concluding that agency properly withheld
identifying information about employees because "[e]ach of these individuals was a low-level
employee who committed serious acts of misconduct" and even though "[t]he public interest
in learning how law enforcement agencies dealt with these individuals is very high," the
"[d]isclos[ure of] the names of the employees . . . would shed little light on the operation of
government"); Hoyos v. United States, No. 98-4178, slip op. at 3 (11th Cir. Feb. 1, 1999) (finding
"little public interest in access to [identities of individuals fired from the VA], especially when
the reasons for removal -- the information that truly bears upon the agency's conduct, which
is the focus of FOIA's concern -- were readily made available"); Beck v. DOJ, 997 F.2d 1489,
1493 (D.C. Cir. 1993) ("The identity of one or two individual relatively low-level government
wrongdoers, released in isolation, does not provide information about the agency's own
conduct.") (Exemptions 6 and 7(C)); Stern, 737 F.2d at 94 (protecting names of mid-level
employees censured for negligence); Chamberlain v. Kurtz, 589 F.2d 827, 842 (5th Cir. 1979)
(protecting names of disciplined IRS agents); MacLean v. U.S. Dep't of Army, No. 05-1519, 2007
WL 935604, at *13 (S.D. Cal. Mar. 6, 2007) ("Moreover, 'lower level officials . . . generally have
a stronger interest in personal privacy than do senior officials,' . . . the public's interest in
misconduct by a lower level official is weaker than its interest in misconduct by a senior
official" (quoting Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir. 1994))) (Exemptions 6 and
7(C)); Kimmel v. DOD, No. 04-1551, 2006 WL 1126812, at *3 (D.D.C. Mar. 31, 2006) (protecting
names of civilian personnel below level of office director and of military personnel below rank
of colonel (or captain in Navy); finding that disclosure of names would not shed any light on
subject matter of FOIA request seeking release of documents related to posthumous
advancement of Rear Admiral Husband E. Kimmel to rank of admiral on retired list of Navy);
Buckley v. Schaul, No. 03-03233, slip op. at 8-9 (W.D. Wash. Mar. 8, 2004) (protecting identity
of regional counsel alleged to have violated Privacy Act) (Exemptions 6 and 7(C)), aff'd, 135
F. App'x 929 (9th Cir. 2005); Chang, 314 F. Supp. 2d at 44-45 (protecting names and results of
punishment of lower-level officers involved in collision of Navy vessel with another ship);
Jefferson v. DOJ Office of the Inspector General, No. 01-1418, slip op. at 11 (D.D.C. Nov. 14,
2003) ("A [nonsupervisory] Attorney-Advisor is not a government employee whose rank is so
high that the public interest in disclosure of information pertaining to her performance of
official government functions outweighs her personal privacy interest in protecting
information about the details of a law enforcement investigation of her alleged misconduct.")
(Exemption 7(C)); Butler v. DOJ, No. 86-2255, 1994 WL 55621, at *10 (D.D.C. Feb. 3, 1994)
(protecting identity of FBI Special Agent who received "mild admonishment" for conduct that
"was not particularly egregious"); Cotton v. Adams, 798 F. Supp. 22, 26-27 (D.D.C. 1992)
(finding that release of IG reports on conduct of low-level Smithsonian Institution employees
would not allow public to evaluate Smithsonian's performance of mission); Heller v. U.S.
Marshals Serv., 655 F. Supp. 1088, 1091 (D.D.C. 1987) (protecting names of agency personnel
found to have committed "only minor, if any, wrongdoing") (Exemption 7(C)). Public Interest 463
knowledge" that certain employees were disciplined. 170 As such, courts customarily have
extended protection to the identities of mid- and low-level federal employees accused of
misconduct, as well as to the details and results of any internal investigations into such
allegations of impropriety.171 The D.C. Circuit reaffirmed this position in Dunkelberger v.
170 Beck, 997 F.2d at 1493-94; see Chin v. U.S. Dep't of the Air Force, No. 97-2176, slip op. at
3 (W.D. La. June 24, 1999) (finding a significant privacy interest in records that "document[]
personal and intimate incidents of misconduct [that have] not previously been a part of the
public domain"), aff'd per curiam, No. 99-31237 (5th Cir. June 15, 2000).
171 See, e.g., Stern, 737 F.2d at 94 (protecting identities of mid-level employees censured for
negligence, but requiring disclosure of identity of high-level employee found guilty of serious,
intentional misconduct) (Exemption 7(C)); Chamberlain, 589 F.2d at 841-42 (protecting names
of disciplined IRS agents); MacLean, 2007 WL 935604, at *10-12 (protecting identity of military
attorneys who issued illegal subpoenas in court marshal proceedings); Cawthon v. DOJ, No.
05-0567, 2006 WL 581250, at *2-4 (D.D.C. Mar. 9, 2006) (protecting information about two
Federal Bureau of Prisons doctors, including records pertaining to malpractice and disciplinary
matters); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., No. 05-6015, 2005 WL
3488453, at *4 (D. Or. Dec. 21, 2005) ("USFS employees are publically employed . . . [and] the
names of the employees . . . holds little or no expectation of privacy. The expectation,
however, increases when attached to stigmatizing events."), aff'd, 524 F.3d 1021 (9th Cir.
2008); Mueller v. U.S. Dep't of the Air Force, 63 F. Supp. 2d 738, 743-45 (E.D. Va. 1999)
(unsubstantiated allegations of prosecutorial misconduct) (Exemptions 6 and 7(C)); Chin, No.
97-2176, slip op. at 3-5 (W.D. La. June 24, 1999) (investigations of fraternization), aff'd per
curiam, No. 99-31237 (5th Cir. June 15, 2000); Lurie, 970 F. Supp. at 40 (identities of HIV
researchers who played minor role in possible scientific misconduct), appeal dismissed
voluntarily, No. 97-5248 (D.C. Cir. Oct. 22, 1997); McLeod v. Peña, No. 94-1924, slip op. at 4-6
(D.D.C. Feb. 9, 1996) (investigation of Coast Guard officer for alleged use of government
resources for personal religious activities) (Exemption 7(C)), summary affirmance granted sub
nom. McLeod v. U.S. Coast Guard, No. 96-5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997);
Cotton, 798 F. Supp. at 25-28 (report of Inspector General's investigation of low-level
employees of Smithsonian Institution museum shops); Schonberger v. NTSB, 508 F. Supp. 941,
944-45 (D.D.C.) (results of complaint by employee against supervisor), aff'd, 672 F.2d 896 (D.C.
Cir. 1981) (unpublished table decision); Iglesias v. CIA, 525 F. Supp. 547, 561 (D.D.C. 1981)
(agency attorney's response to Office of Professional Responsibility misconduct allegations);
see also McCutchen v. HHS, 30 F.3d 183, 187-89 (D.C. Cir. 1994) (identities of both federally
and privately employed scientists investigated for possible scientific misconduct protected)
(Exemption 7(C)); cf. Heller, 655 F. Supp. at 1091 ("extremely strong interest" in protecting
privacy of individual who cooperated with internal investigation of possible criminal activity
by fellow employees). But see Schmidt v. U.S. Air Force, 2007 WL 2812148, at *11 (C.D. Ill.
Sept. 20, 2007) (finding that although Air Force officer had a privacy interest in keeping
information about his discipline confidential, competing public interest in deadly friendly-fire
incident with international effects outweighed that privacy interest and shed light on how the
United States government was holding its pilot accountable); Gannett River States Publ'g
Corp. v. Bureau of the Nat'l Guard, No. J91-0455, 1992 WL 175235, at *5-6 (S.D. Miss. Mar. 2,
1992) (holding that given previous disclosure of investigative report of helocasting accident,
disclosure of actual discipline received would result in "insignificant burden" on soldiers'
privacy interests). 464 Exemption 6
DOJ172 in which it held that, even post-Reporters Committee, the D.C. Circuit's decision in
Stern v. FBI provides guidance for the balancing of the privacy interests of federal employees
found to have committed wrongdoing against the public interest in shedding light on agency
activities.173
Additionally, any asserted "public interest" in the disclosure of mere allegations of
wrongdoing cannot outweigh an individual's privacy interest in avoiding unwarranted
association with such allegations. 174 Indeed, in Favish, the Supreme Court held that mere
172 906 F.2d 779, 782 (D.C. Cir. 1990) (upholding FBI's refusal to confirm or deny existence
of letters of reprimand or suspension for alleged misconduct by undercover agent) (Exemption
7(C)); Favish, 541 U.S. at 175 (noting that "[a]llegations of government misconduct are 'easy
to allege and hard to disprove'" (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998)).
173 Dunkelberger, 906 F.2d at 781; see also Ford v. West, No. 97-1342, 1998 WL 317561, at
*2-3 (10th Cir. June 12, 1998) (protecting information about discipline of coworker and finding
that redacted information would not inform public about agency's response to racial
harassment claim); Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998) (protecting information
about investigation of staff-level attorney for allegations of unauthorized disclosure of
information to media) (Exemption 7(C)); Beck, 997 F.2d at 1494 (upholding agency's refusal to
either confirm or deny existence of records concerning alleged wrongdoing of named DEA
agents) (Exemptions 6 and 7(C)); Hunt v. FBI, 972 F.2d 288-90 (9th Cir. 1992) (protecting
contents of investigative file of nonsupervisory FBI agent accused of unsubstantiated
misconduct) (Exemption 7(C)); Early v. OPR, No. 95-0254, slip op. at 2-3 (D.D.C. Apr. 30, 1996)
(upholding OPR's refusal to confirm or deny existence of complaints or investigations
concerning performance of professional duties of one United States district court judge and
two AUSAs) (Exemption 7(C)), summary affirmance granted, No. 96-5136, 1997 WL 195523
(D.C. Cir. Mar. 31, 1997).
174 See, e.g., Sussman v. USMS, 494 F.3d 1106, 1115 (D.C. Cir. 2007) (finding that USMS
properly protected the privacy of various individuals stressing that "[w]hile we find [plaintiff]
did in fact allege misconduct, his bare and undeveloped allegations would not warrant a belief
by a reasonable person that impropriety might have occurred") (Exemption 7(C)); McCutchen,
30 F.3d at 187-89 (protecting identities of scientists found not to have engaged in alleged
scientific misconduct) (Exemption 7(C)); Hunt, 972 F.2d at 288-90 (protecting investigation of
named FBI agent cleared of charges of misconduct) (Exemption 7(C)); Dunkelberger, 906 F.2d
at 781-82 (same) (Exemption 7(C)); Carter, 830 F.2d at 391 (protecting identities of attorneys
subject to disciplinary proceedings, which were later dismissed); Bullock v. FBI, 587 F. Supp.
2d 250, 253 (D.D.C. 2008) ("Absent strong evidence of official misconduct, the identities of law
enforcement officials are protected by Exemption 7(C) . . . . Plaintiff's unsupported allegations
of official misconduct do not outweigh the privacy interests of these law enforcement
officials.") (Exemption 7(C)); Barbosa v. DEA, 541 F. Supp. 2d 108, 111-12 (D.D.C. 2008) (stating
that plaintiff must present "'more than a bare suspicion' of official misconduct; '[r]ather, the
requester must produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred' . . . For it is '[o]nly when [such evidence
is] produced [that] there [will] exist a counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested records'" (quoting Favish, 541 U.S.
at 174-75)); Buckley, No. 03-03233, slip op. at 10-11 (W.D. Wash. Mar. 8, 2004) ("If these files
(continued...) Public Interest 465
allegations of wrongdoing are "insufficient" to satisfy the "public interest" standard required
under the FOIA.175 The Court observed that if "bare allegations" could be sufficient to satisfy
the public interest requirement, then the exemption would be "transformed . . . into nothing
more than a rule of pleading."176 Indeed, the Supreme Court has opined that if mere
allegations were all that were necessary to override a personal privacy interest, then that
privacy interest would become worthless.177 Moreover, the Supreme Court in Favish pointedly
recognized that "allegations of misconduct are 'easy to allege and hard to disprove'"178 and that
174(...continued)
were released, the public disclosure of allegations of impropriety against [regional counsel]
and whomever else, without any findings of actual misconduct, could scar employees'
personal and professional reputations.") (Exemptions 6 and 7(C)), aff'd, 135 F. App'x 929 (9th
Cir. 2005); Edmonds v. FBI, 272 F. Supp. 2d 35, 52 (D.D.C. 2003) (protecting identities of FBI
clerical employees and FBI Special Agents because there was no reason to believe that their
identities would shed light on alleged misconduct in FBI's language division) (Exemptions 6
and 7(C)), appeal dismissed voluntarily, No. 03-5364, 2004 WL 2806508 (D.C. Cir. Dec. 7, 2004);
McQueen v. United States, 264 F. Supp. 2d 502, 533-34 (S.D. Tex. 2003) (deciding that public
interest would not be served by "disclosure of information regarding unsubstantiated
allegations" made against three government employees) (Exemptions 6 and 7(C)), aff'd, 100
F. App'x 964 (5th Cir. 2004) (per curiam); Pontecorvo v. FBI, No. 00-1511, slip op. at 40 (D.D.C.
Sept. 30, 2001) (declining to order disclosure of the identity of an FBI Special Agent under
investigation by the FBI Office of Professional Responsibility when the investigation was
instituted solely "because of Plaintiff's own written request, not the independent
determination of the Bureau") (Exemption 7(C)). But see Dobronski v. FCC, 17 F.3d 275, 278-80
(9th Cir. 1994) (ordering release of employee's sick leave slips despite fact that requester's
allegations of abuse of leave time were wholly based upon unsubstantiated tips).
175 541 U.S. at 173; see also Harrison v. BOP, No. 07-1543, 2009 WL 1163909, *8 (D.D.C. May
1, 2009) ("Plaintiff's vague allegations of 'fabricated' charges, 'illegal and conspiratorial conduct'
between a prison counselor and the BOP officer who screened [plaintiff's] telephone call, his
non-specific reference to 'corrupt acts and practices of federal employees,' and his implied
suspicions as to the qualifications of the disciplinary hearing officer, do not rise to the level
required by the rule articulated in Favish." (quoting plaintiff's filing) (internal citations
omitted)); Aguirre v. SEC, 551 F. Supp. 2d 33, 56 (D.D.C. 2008) ("A 'bare suspicion' of agency
misconduct is insufficient; the FOIA requester 'must produce evidence that would warrant a
belief by a reasonable person that the alleged Government impropriety might have occurred.'"
(quoting Favish, 541 U.S. at 174)).
176 541 U.S. at 174.
177 See U.S. Dep't of State v. Ray, 502 U.S. 164, 179 (1991) ("If a totally unsupported
suggestion that the interest in finding out whether Government agents have been telling the
truth justified disclosure of private materials, Government agencies would have no defenses
against requests for production of private information."); see also Favish, 541 U.S. at 173
(emphasizing importance of "practical[ity]" in privacy-protection decisionmaking).
178 541 U.S. at 175 (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998)); see also Ray,
502 U.S. at 178-79 (holding that there is presumption of legitimacy given to government
(continued...) 466 Exemption 6
courts therefore must require a "meaningful evidentiary showing" by the FOIA requester.179
Therefore, the Court adopted a higher standard for evaluation of "agency wrongdoing" claims
and held that "the requester must establish more than a bare suspicion in order to obtain
disclosure. Rather, the requester must produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred."180 Indeed,
several courts have applied this heightened standard to allegations of government misconduct
and repeatedly have found that plaintiffs have not provided the requisite evidence required
by Favish.181
178(...continued)
conduct, and noting that privacy interests would be worthless if only bare allegations could
overcome these interests); O'Neill, 2007 WL 983143, at *9 (stating that "court must insist on
a meaningful evidentiary showing").
179 541 U.S. at 175; Martin, 488 F.3d at 458 (concluding that "'[u]nsubstantiated assertions
of government wrongdoing . . . do not establish a meaningful evidentiary showing'" (quoting
Boyd v. DOJ, 475 F.3d 381, 388 (D.C. Cir. 2007))); Jarvis v. ATF, No. 07-111, 2008 WL 2620741,
at *13 (N.D. Fla. June 30, 2008) ("When the significant asserted public interest is to uncover
Government misfeasance, there must be a meaningful evidentiary showing.").
180 541 U.S. at 174; Associated Press v. DOD, 554 F.3d at 289 (Exemptions 6 and 7(C)); Lane
v. Department of Interior, 523 F.3d 1128, 1138 (9th Cir. 2008) (finding that because interest in
disclosure involved government employee's alleged misconduct, requester was required to
"produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred" (quoting Favish, 541 U.S. at 174)); Judicial
Watch v. DHS, 598 F. Supp. 2d 93, 97 (D.D.C. 2009) ("The extra burden established by Favish
only applies when the requester asserts government negligence or improper conduct.");
Martin, 488 F.3d at 458 (stating that "'[i]f the public interest is government wrongdoing, then
the requester must produce evidence that would warrant a belief by a reasonable person that
the alleged Government impropriety might have occurred'" (quoting Boyd, 475 F.3d at 387));
Aguirre, 551 F. Supp. 2d at 56 ("A 'bare suspicion' of agency misconduct is insufficient."
(quoting Favish, 541 U.S. at 174)).
181 See Associated Press v. DOD, 554 F.3d at 289-92 (concluding that redactions of the
detainees' identifying information was proper because plaintiff failed to produce sufficient
evidence of impropriety by DOD) (Exemption 7(C)); Carpenter, 470 F.3d at 442 (declaring that
valid public interest in disclosure of information relating to allegations of impropriety on part
of government officials must be supported by more than mere suspicion improper actions
occurred) (Exemption 7(C)); Wood v. FBI, 432 F.3d 78, 89 (2d Cir. 2005) (finding that plaintiff's
"unsupported allegations" do not overcome "presumption of legitimacy . . . [of] government
actions"); Horowitz, 428 F.3d at 278 & n.1 (finding that the plaintiff offered "no further details
to support these extremely speculative allegations" and did not "overcome the presumption
that the Peace Corps' [ ] official conduct was proper"); Oguaju v. United States, 378 F.3d 1115,
1117 (D.C. Cir. 2004) (ruling that plaintiff "failed to make the requisite showing" required by
Favish), reh'g denied & amended, 386 F.3d 273 (D.C. Cir. 2004) (per curiam); Long v. OPM, No.
05-1522, 2007 WL 2903924, at *18 (N.D.N.Y. Sept. 30, 2007) ("Although plaintiffs have
submitted declarations from reporters who . . . have uncovered government wrongdoing,
plaintiffs submit no actual evidence of wrongdoing, thus this factor weighs against
(continued...)
Public Interest 467
Moreover, even when the existence of an investigation of misconduct has become
publicly known, the accused individual ordinarily has an overriding privacy interest in not
having the further details of the matter disclosed. 182 And even where misconduct actually is
found, the agency is not necessarily required to disclose every piece of information pertaining
to the investigation.183
Public oversight of government operations is the essence of public interest under the
FOIA. Courts have found that requesters claiming such an interest must support their claim
by more than mere allegation and must show how the public interest would be served by
disclosure in the particular case.184
181(...continued)
disclosure.").
182 See Forest Serv. Employees, 524 F.3d at 1025 (protecting identities of low-level and midlevel
employees because "the public association of the employees with this tragedy would
subject them to the risk of embarrassment in their official capacities and in their personal
lives"); Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998) (concluding that AUSA "did not,
merely by acknowledging the investigation and making a vague references to its conclusion,
waive all his interest in keeping the contents of the OPR file confidential") (Exemption 7(C));
Mueller, 63 F. Supp. 2d at 743 (declaring that even given pre-existing publicity, "individuals
have a strong interest in not being associated with alleged wrongful activity, particularly
where, as here, the subject of the investigation is ultimately exonerated") (Exemptions 6 and
7(C)); see also Bast v. FBI, 665 F.2d 1251, 1255 (D.C. Cir. 1981) (explaining that publicity over
an alleged transcript-alteration incident actually could exacerbate the harm to a privacy
interest because "[t]he authoritative nature of such findings threatens much greater damage
to an individual's reputation than newspaper articles or editorial columns" and "renewed
publicity brings with it a renewed invasion of privacy"); Chin, No. 97-2176, slip op. at 5 (W.D.
La. June 24, 1999) (finding that the fact "that some of the events are known to certain
members of the public . . . is insufficient to place this record for dissemination into the public
domain").
183 See, e.g., Office of Capital Collateral Counsel, N. Region of Fla. v. DOJ, 331 F.3d 799, 803
04 (11th Cir. 2003) (protecting AUSA's "private thoughts and feelings concerning her
misconduct . . . and its effect on her, her family, and her career"); see also Kimberlin, 139 F.3d
at 949 (finding that an AUSA "still has a privacy interest . . . in avoiding disclosure of the
details of the investigation," despite the AUSA's acknowledgment that he was disciplined
after the investigation); Halloran v. VA, 874 F.2d 315, 320-22 (5th Cir. 1989) (noting that
employees of government contractor investigated by government for fraud did not lose privacy
interests in comments transcribed in government investigatory files) (Exemption 7(C)).
184 See Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999)
(discounting inconsistencies in multiple agency reports from complex crime scene as "hardly
so shocking as to suggest illegality or deliberate government falsification") (Exemption 7(C));
Schiffer, 78 F.3d at 1410 (rejecting public interest argument absent evidence suggesting
wrongdoing by FBI); Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897,
904-05 (D.C. Cir. 1996) ("[T]he public interest is insubstantial unless the requester puts
forward compelling evidence that the agency denying the FOIA request is engaged in illegal
(continued...) 468 Exemption 6
Accordingly, assertions of "public interest" are scrutinized by the courts to ensure that
they legitimately warrant the overriding of important privacy interests.185 As is discussed in
more detail below, sometimes the courts do find that the public interest warrants overriding
the privacy interest at stake. 186 As stated by the Second Circuit in Hopkins v. HUD, "[t]he
184(...continued)
activity and shows that the information sought is necessary in order to confirm or refute that
evidence.") (Exemption 7(C)); Halloran, 874 F.2d at 323 (finding that while there is general
public interest in the government's interaction with federal contractors, "merely stating that
the interest exists in the abstract is not enough"; requesters must show how that interest
would be served by compelling disclosure); LaRouche v. DOJ, No. 90-2753, slip op. at 22-23
(D.D.C. Nov. 17, 2000) ("[W]hile the public interest in possible corruption is great, mere
inferences of a violation carry little weight."); Wichlacz v. Dep't of Interior, 938 F. Supp. 325,
333 (E.D. Va. 1996) (observing that plaintiff "has set forth no evidence to buttress his bald
allegations" of cover-up in investigation of death of former Deputy White House Counsel, a
theory substantially undercut by then-ongoing Independent Counsel investigation), aff'd, 114
F.3d 1178 (4th Cir. 1997) (unpublished table decision); Allard v. HHS, No. 4:90-CV-156, slip op.
at 10-11 (W.D. Mich. Feb. 14, 1992) (finding that "conclusory allegations" of plaintiff -- a
prisoner with violent tendencies -- concerning ex-wife's misuse of children's social security
benefits do not establish public interest), aff'd, 972 F.2d 346 (6th Cir. 1992) (unpublished table
decision).
185 See, e.g., Favish, 541 U.S. at 172 (stressing the requirement that "the public interest
sought to be advanced [be] a significant one"); Consumers' Checkbook, 554 F.3d at 1056
(concluding after careful scrutinizing of the various assertions of public interest asserted by
plaintiff, that "the requested data does not serve any FOIA-related public interest in
disclosure").
186 See Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 97-98 (6th Cir. 1996) (finding that the
agency's disclosure of the mug shots of indicted individuals during the course of an ongoing
criminal proceeding could reveal an "error in detaining the wrong person for an offense" or the
"circumstances surrounding an arrest and initial incarceration"); Rosenfeld v. DOJ, 57 F.3d 803,
811-12 (9th Cir. 1995) (concluding that disclosure of the identities of individuals investigated
would reveal whether the "FBI abused its law enforcement mandate by overzealously
investigating a political protest movement to which some members of the government may
then have objected") (Exemption 7(C)); Gordon v. FBI, 388 F. Supp. 2d 1028, 1041 (N.D. Cal.
2005) (finding public interest served by disclosure of individual agency employee names
because their names show "who are making important government policy") (Exemptions 6 and
7(C)); Lardner v. DOJ, No. 03-0180, 2005 WL 758267, at *17 (D.D.C. Mar. 31, 2005) (finding that
the public interest in analyzing the "circumstances in which the executive chooses to grant
or deny a pardon and the factors that bear on that decision" would be served by the release
of the names of unsuccessful pardon applicants); Baltimore Sun v. U.S. Marshals Serv., 131 F.
Supp. 2d 725, 729-30 (D. Md. 2001) (declaring that "[a]ccess to the names and addresses [of
purchasers of seized property] would enable the public to assess law enforcement agencies'
exercise of the substantial power to seize property, as well as USMS's performance of its
duties regarding disposal of forfeited property") (Exemption 7(C)), appeal dismissed
voluntarily, No. 01-1537 (4th Cir. June 25, 2001); Judicial Watch v. DOJ, 102 F. Supp. 2d 6, 17
18 (D.D.C. 2000) (allowing deletion of home addresses and telephone numbers, but ordering
(continued...)
Public Interest 469
simple invocation of a legitimate public interest . . . cannot itself justify the release of personal
information. Rather, a court must first ascertain whether that interest would be served by
disclosure." 187 The Second Circuit in Hopkins found a legitimate public interest in monitoring
HUD's enforcement of prevailing wage laws generally, but found that disclosure of the names
and addresses of workers employed on HUD-assisted public housing projects would shed no
light on the agency's performance of that duty in particular.188 The Ninth Circuit in Minnis v.
186(...continued)
release of identities of individuals who wrote to Attorney General about campaign finance or
Independent Counsel issues); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp.
2d 1088, 1093 (D. Or. 1998) (finding that public interest in knowing how agency is enforcing
land-management laws is served by release of names of cattle owners who violated federal
grazing laws) (Exemption 7(C)); Maples v. USDA, No. F 97-5663, slip op. at 14 (E.D. Cal. Jan.
13, 1998) (finding that release of names and addresses of permit holders would show public
how permit process works and eliminate "suspicions of favoritism in giving out permits" for
use of federal lands).
187 929 F.2d at 88 (citing Halloran, 874 F.2d at 323 (observing that "merely stating that the
interest exists in the abstract is not enough; rather, the court should have analyzed how that
interest would be served by compelling disclosure")); see also Favish, 541 U.S. at 172-73
(highlighting "the nexus required between the requested documents and the purported public
interest served by disclosure"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of an IRS
agent's time sheets would do little to serve plaintiff's asserted public interest that the records
would shed light on the operations of the IRS in conducting investigations of taxpayers).
188 929 F.2d at 88; see also Associated Press v. DOD, 554 F.3d at 293 ("We conclude that the
public interest in evaluating whether DOD properly followed-up on the detainees' claims of
mistaken identity have been adequately served by the disclosure of the redacted information
and that disclosing names and addresses of the family members would constitute a clearly
unwarranted invasion of the family members' privacy interest because such disclosure would
not shed any light on DOD's action in connection with the detainees' claims at issue here.");
Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (finding that
information about individual taxpayers does not serve any possible public interest in "how the
IRS exercises its power over the collection of taxes"); Grandison v. DOJ, 600 F. Supp. 2d 109,
117 (D.D.C. 2009) ("Release of the names of law enforcement personnel, witnesses, experts,
targets of investigation, court reporters and other court personnel, sheds no light on the
working of the government."); Anderson v. DOJ, 518 F. Supp. 2d 1, 14 (D.D.C. 2007) (protecting
retired DEA Special Agent's home address because release of the address "in no way would
further FOIA's basic purpose"); Sutton v. IRS, No. 05-7177, 2007 WL 30547, at *6 (N.D. Ill. Jan.
4, 2007) (protecting personal information of third-party taxpayers and IRS personnel because
"none of their personal information will give Plaintiff a greater understanding of how the
agency is performing its duties"); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003,
2004 WL 3426434, at *17 (D.N.M. Feb. 28, 2004) (finding public interest served by release of
financial value of loans and names of financial institutions that issued loans, but "protecting
any arguably private personal financial or other information concerning individual [Bureau of
Land Management] grazing permittees"); Hecht v. USAID, No. 95-263, 1996 WL 33502232, at
*12 (D. Del. Dec. 18, 1996) (determining that the public interest is served by release of
redacted contractor's employee data sheets without the names, addresses, and other
(continued...) 470 Exemption 6
USDA recognized a valid public interest in questioning the fairness of an agency lottery
system that awarded permits to raft down the Rogue River, but found, upon careful analysis,
that the release of the names and addresses of the applicants would in no way further that
interest.189 Similarly, in Heights Community Congress v. VA, the Court of Appeals for the Sixth
Circuit found that the release of names and home addresses would result only in the
"involuntary personal involvement" of innocent purchasers rather than appreciably furthering
a concededly valid public interest in determining whether anyone had engaged in "racial
steering." 190
Several courts, moreover, have observed that the minimal amount of information of
interest to the public revealed by a single incident or investigation does not shed enough light
188(...continued)
identifying information of employees); Stabasefski v. United States, 919 F. Supp. 1570, 1575
(M.D. Ga. 1996) (finding that public interest is served by release of redacted vouchers showing
amounts of Hurricane Andrew subsistence payment to FAA employees; disclosure of names
of employees would shed no additional light on agency activities); Gannett Satellite Info.
Network, Inc. v. U.S. Dep't of Educ., No. 90-1392, 1990 WL 251480, at *6 (D.D.C. Dec. 21, 1990)
("If in fact a student has defaulted, [his] name, address, and social security number would
reveal nothing about the Department's attempts to collect on those defaulted loans. Nor
would [they] reveal anything about the potential misuse of public funds.").
189 737 F.2d 784, 787 (9th Cir. 1984); see Wood, 432 F.3d at 89 ("Given that the FBI has
already revealed the substance of the investigation and subsequent adjudication, knowledge
of the names of the investigators would add little, if anything, to the public's analysis of
whether the FBI dealt with the accused agents in an appropriate manner."); Larson v. Dep't
of State, No. 02-01937, 2005 WL 3276303, at *29 (D.D.C. Aug. 10, 2005) (stating that the
plaintiff did "not . . . adequately explain how disclosure of the identities of these particular
sources would shed much, if any, light on the operations of [the Department of State]"); Kelly
v. CIA, No. 00-2498, slip op. at 49-50 (D.D.C. Sept. 25, 2002) (finding that although the "public
interest in [the CIA's former] MKULTRA [program] is certainly very high," plaintiff had not
demonstrated how disclosing the names of individual test subjects would shed light on the
MKULTRA program or CIA activities), appeal on adequacy of search dismissed on procedural
grounds, No. 02-5384, 2003 WL 21804101 (D.C. Cir. July 31, 2003); Times Picayune Publ'g Corp.
v. DOJ, 37 F. Supp. 2d 472, 480-81 (E.D. La. 1999) (concluding that release of mug shot would
not inform members of public about "activities of their government") (Exemption 7(C));
Baltimore Sun Co. v. U.S. Customs Serv., No. 97-1991, slip op. at 7 (D. Md. Nov. 21, 1997)
(finding that the photograph of an individual who pled guilty to trafficking in child
pornography was not "sufficiently probative of the fairness of [his] sentence that its disclosure
[would] inform[] the public of 'what the government is up to'") (Exemption 7(C)); N.Y. Times
Co. v. NASA, 782 F. Supp. 628, 632-33 (D.D.C. 1991) (finding that release of the audiotape of
the Challenger astronauts' voices just prior to the explosion would not serve the "undeniable
interest in learning about NASA's conduct before, during and after the Challenger disaster").
190 732 F.2d 526, 530 (6th Cir. 1984); see Painting Indus., 26 F.3d at 1484-85 (protecting
names and addresses of employees on payroll records, and stating that the "additional public
benefit the requesters might realize through [contacting the employees] is inextricably
intertwined with the invasions of privacy that those contacts will work"). Public Interest 471
on an agency's conduct to overcome the subject's privacy interest in his records.191 Courts
have distinguished between showing public interest in only the general subject area of the
request, as opposed to the public interest in the specific subject area of the disclosable
portions of the requested records.192
Linking the requested records with the asserted public interest is required by the
Supreme Court's holding in Favish, which emphasized that there must be a "nexus between
the requested information and the asserted public interest that would be advanced by
disclosure." 193 Likewise, the Supreme Court in Reporters Committee held that the "rap sheet"
of a defense contractor, if such existed, would reveal nothing directly about the behavior of
191 See Tomscha v. GSA, 158 F. App'x 329, 331 (2d Cir. 2005) (finding that disclosure of the
justification for awards given to "a single low-ranking employee of the GSA . . . would not
'contribute significantly to the public understanding of the operations or activities of the
government'" (quoting DOD v. FLRA, 510 U.S. at 495)); Oguaju v. United States, 288 F.3d 448,
451 (D.C. Cir. 2002) (declaring that "even if the records Oguaju seeks would reveal wrongdoing
in his case, exposing a single, garden-variety act of misconduct would not serve the FOIA's
purpose of showing 'what the Government is up to'") (Exemption 7(C)), vacated & remanded,
541 U.S. 970, on remand, 378 F.3d 1115 (D.C. Cir.), reh'g denied & amended, 386 F.3d 273 (D.C.
Cir. 2004) (per curiam); Needy v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (observing that "courts
have refused to recognize, for purposes of FOIA, a public interest in nothing more than the
fairness of a criminal defendant's own trial") (Exemption 7(C)); Hunt, 972 F.2d at 289
(observing that disclosure of single internal investigation file "will not shed any light on
whether all such FBI investigations are comprehensive or whether sexual misconduct by
agents is common"); Salas, 577 F. Supp. 2d at 112 (finding that OIG properly redacted
personally identifying information about Border Patrol employees mentioned in investigative
records about a complaint by plaintiff concluding that "[t]his one incident, though of obvious
importance to plaintiff, is not one of such magnitude that it outweighs the agency employees'
substantial privacy interest"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of one IRS
employee's time sheets would not serve the public interest); Mueller, 63 F. Supp. 2d at 745
("[T]he interest of the public in the personnel file of one Air Force prosecutor is attenuated
because information concerning a single isolated investigation reveals relatively little about
the conduct of the Air Force as an agency.") (Exemptions 6 and 7(C)); Chin, No. 97-2176, slip
op. at 5 (W.D. La. June 24, 1999) (finding only "marginal benefit to the public interest" in
release of the facts of a single case, particularly "where alternative means exist -- such as
statistical samples or generalized accounts -- to satisfy the public interest").
192 See, e.g., ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 WL 588354, at *13 (N.D. Cal. Mar. 11,
2005) (ruling that "it was not sufficient for the plaintiffs to show [public] interest in only the
general subject area of the request"); Elec. Privacy Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 102
(D.D.C. 2004) (stating that "[t]he fact that [the requester] has provided evidence that there is
some media interest in data mining as an umbrella issue does not satisfy the requirement that
[the requester] demonstrate interest in the specific subject of [its] FOIA request"); see also
Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (stating that an inquiry regarding the
public interest "should focus not on the general public interest in the subject matter of the
FOIA request, but rather on the incremental value of the specific information being withheld")
(Exemption 7(C)).
193 541 U.S. at 172-73. 472 Exemption 6
the Congressman with whom the contractor allegedly had an improper relationship, nor
would it reveal anything about the conduct of the DOD. 194 Courts have generally found that
the information must clearly reveal official government activities, and that it is not enough that
the information would permit speculative inferences about the conduct of an agency or a
government official,195 or that it might aid the requester in lobbying efforts that would result
194 489 U.S. at 774; see also Associated Press v. DOD, 554 F.3d at 288 ("This Court has
similarly said that 'disclosure of information affecting privacy interests is permissible only if
the information reveals something directly about the character of a government agency or
official.'" (quoting Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991))); Nat'l Ass'n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafter NARFE] (finding that
names and home addresses of federal annuitants reveal nothing directly about workings of
government); Halloran, 874 F.2d at 323 ("[M]erely stating that the interest exists in the
abstract is not enough; rather, the court should have analyzed how that interest would be
served by compelling disclosure."); Kimberlin v. Dep't of the Treasury, 774 F.2d 204, 208 (7th
Cir. 1985) ("The record fails to reflect any benefit which would accrue to the public from
disclosure and [the requester's] self-serving assertions of government wrongdoing and
coverup do not rise to the level of justifying disclosure.") (Exemption 7(C)); Stern, 737 F.2d at
92 (finding that certain specified public interests "would not be satiated in any way" by
disclosure) (Exemption 7(C)); Barnard v. DHS, 598 F. Supp. 2d 1, 9 (D.D.C. 2009) ("Where, as
here, the nexus between the information sought and the asserted public interest is lacking,
the asserted public interests will not outweigh legitimate privacy interests."); Long v. OPM,
2007 WL 2903924, at *18 (concluding that "[t]he link between the disclosure of the names and
duty station of these federal employees - which reveals nothing directly about an employee's
job function or the agency he or she works for - and the conduct of the . . . federal agencies . . .
is too attenuated to weigh in favor of disclosure"); Seized Prop. Recovery, 502 F. Supp. 2d at
59 (stating that there must be a nexus between the information sought under FOIA and the
public's ability to learn about the agency's operations) (Exemptions 6 and 7(C)); Elec. Privacy
Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 117-18 (D.D.C. 2005) ("Names alone will not shed any
light on how the agencies worked with the airlines."); Nation Magazine v. Dep't of State, No.
92-2303, 1995 WL 17660254, at *10 & n.15 (D.D.C. Aug. 18, 1995) ("[T]he public interest in
knowing more about [presidential candidate H. Ross] Perot's dealings with the government
is also not the type of public interest protected by the FOIA."). But see Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) (finding that agency's response to
presidential candidate H. Ross Perot's offer to assist in drug interdiction would serve public
interest in knowing about agency's plans to privatize government functions).
195 See Reporters Comm., 489 U.S. at 774, 766 n.18; see also Cozen O'Connor v. Dep't of
Treasury, 570 F. Supp. 2d 749, 781 (E.D. Pa. 2008) (stating that "[during information gathering
and compilation, government agencies may coincidentally receive personal and private
information that has no bearing on their decision-making or operations[,]" and "[i]n those
instances, the relationship of the information to the individual is not pertinent to the
government's workings"); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12,
1996) (ruling that the possibility that release of names and addresses of rejected social
security disability claimants could ultimately reveal the agency's wrongful denial is "too
attenuated to outweigh the significant invasion of privacy"), aff'd per curiam, No. 96-9000 (11th
Cir. July 8, 1997). But see Avondale Indus. v. NLRB, 90 F.3d 955, 961-62 (5th Cir. 1996)
(declaring that disclosure of marked unredacted voting lists in union representation election
(continued...)
Public Interest 473
in passage of laws and thus benefit the public in that respect.196
A very significant development concerning this issue occurred in U.S. Department of
State v. Ray,
197 when the Supreme Court recognized that although there was a legitimate
public interest in whether the State Department was adequately monitoring Haiti's promise
not to prosecute Haitians who were returned to their country after failed attempts to enter the
United States, the Court determined that this public interest had been "adequately served" by
release of redacted summaries of the agency's interviews with the returnees and that "[t]he
addition of the redacted identifying information would not shed any additional light on the
Government's conduct of its obligation."198 Although the plaintiff claimed that disclosure of
the identities of the unsuccessful emigrants would allow him to reinterview them and elicit
further information concerning their treatment, the Court found "nothing in the record to
suggest that a second set of interviews with the already-interviewed returnees would
produce any relevant information . . . . Mere speculation about hypothetical public benefits
cannot outweigh a demonstrably significant invasion of privacy."199
195(...continued)
would give plaintiff information it needs to determine whether NLRB conducted election
tainted with fraud and corruption); Int'l Diatomite Producers Ass'n v. SSA, No. 92-1634, 1993
WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (finding that release of vital status information
concerning diatomite industry workers serves "public interest in evaluating whether public
agencies . . . carry out their statutory duties to protect the public from the potential health
hazards from crystalline silica exposure").
196 See NARFE, 879 F.2d at 875.
197 502 U.S. 164 (1991).
198 Id. at 178; see also Associated Press, 554 F.2d at 293 (concluding that "the public interest
in evaluating whether DOD properly followed-up on the detainees' claims of mistaken identity
have been adequately served by the disclosure of the redacted information and that disclosing
names and addresses of the family members would constitute a clearly unwarranted invasion
of the family members' privacy interest because such disclosure would not shed any light on
DOD's action in connection with the detainees' claims at issue here"); Seized Prop. Recovery,
502 F. Supp. 2d at 60 (noting that "any documents containing information about Custom's
performance or behavior would advance [the public interest of informing the citizenry of how
Customs operates] regardless of whether they contained the names and addresses of
individuals whose property was subject to forfeiture") (Exemptions 6 and 7(C)); Pub. Citizen,
Inc. v. RTC, No. 92-0010, 1993 WL 1617868, at *3-4 (D.D.C. Mar. 19, 1993) (adjudging public
interest in agency's compliance with Affordable Housing Disposition Program to be served by
release of information with identities of bidders and purchasers redacted). But seeRosenfeld,
57 F.3d at 811-12 (concluding that disclosure of names of investigative subjects would serve
public interest in knowing whether FBI "overzealously" investigated political protest group by
allowing comparison of investigative subjects to group's leadership roster) (Exemption 7(C)).
199 502 U.S. at 178-79; see also Forest Serv. Employees, 524 F.3d at 1027-28 (finding that
plaintiff, who admitted that "the identities of the employees alone will shed no new light on
the Forest Service's performance of its duties beyond that which is already publicly known[,]"
(continued...) 474 Exemption 6
The Supreme Court expressly declined in Ray to decide whether a public interest that
stems not from the documents themselves but rather from a "derivative use" to which the
documents could be put could ever be weighed in the balancing process against a privacy
interest.200 Subsequently, however, several lower courts faced the "derivative use" issue and
ordered the release of names and home addresses of private individuals in certain contexts
despite the fact that the public benefit to be derived from release of the information depended
upon the requesters' use of the lists to question those individuals concerning the government's
diligence in performing its duties. These courts have found a "derivative use" public interest
in the following contexts:
(1) a list of individuals who sold land to the Fish and Wildlife Service, which could be
used to contact the individuals to determine how the agency acquires property
throughout the United States;201
(2) a list of Haitian nationals returned to Haiti, which could be used for follow-up
interviews with the Haitians to learn "whether the INS is fulfilling its duties not to turn
away Haitians who may have valid claims for political asylum;"202
(3) a list of citizens who reported wolf sightings, which could be used to monitor the
Fish and Wildlife Service's enforcement of the Endangered Species Act;203
(4) the names of agents involved in the management and supervision of the FBI's 1972
investigation of John Lennon, which could be used to help determine whether the
199(...continued)
did not persuade the court that "direct contact with the employees would produce any
information that has not already been revealed to the public through the four investigations
that have already occurred and the three reports that have been publicly released"); Navigator
Publ'g v. DOT, 146 F. Supp. 2d 68, 71 (D. Me. 2001) (concluding that release of addresses of
merchant mariners licensed by United States would serve only "hypothetical 'derivative use'"
that is far outweighed by "demonstrably significant invasion of privacy"), appeal dismissed,
No. 01-1939 (1st Cir. Sept. 19, 2001).
200 502 U.S. at 178-79; Associated Press, 554 F.3d at 290 (explaining that the "derivative use"
theory "posits that the public interest can be read more broadly to include the ability to use
redacted information to obtain additional as yet undiscovered information outside the
government files").
201 Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me. Apr. 14, 1994).
202 Ray v. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (distinguishing Ray, 502 U.S. 164,
on the basis that "in the instant case . . . the public interest is not adequately served by release
of the redacted logs [and] this Court cannot say that interviewing the returnees would not
produce any information concerning our government's conduct during the interdiction
process").
203 Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13 (D. Wyo. May 31,
1994). Public Interest 475
investigation was politically motivated;204
(5) the name and address of an individual who wrote a letter complaining about an
immigration assistance company, which could be used to determine whether the INS
acted upon the complaint;205
(6) the names and addresses of individuals who received property seized under federal
law, which could enable the public to assess the government's exercise of its power to
seize and dispose of property;206 and
(7) the addresses of claimants awarded disaster assistance by FEMA based upon
claims of damages from various hurricanes in Florida in 2004, which could be used to
uncover further information pertaining to allegations of fraud and wasteful spending
in the distribution of disaster assistance by FEMA.207
However, the Second Circuit and the Ninth Circuit have expressed skepticism as to
whether "derivative use" can support a public interest under the FOIA. In Associated Press
v. DOD, the Second Circuit stated that "[a]lthough this Court has not addressed the issue of
whether a 'derivative use' theory is cognizable under FOIA as a valid way by which to assert
that a public interest is furthered, we have indicated that it may not be."208 Similarly, in Forest
Service Employees the Ninth Circuit observed that "[w]e have previously expressed
skepticism at the notion that such derivative use of information can justify disclosure under
Exemption 6," and concluded that the plaintiff's theory that "the only way the release of the
identities of the Forest Service employees can benefit the public is if the public uses such
information to contact the employees directly" is an unjustified reason to release their
identities.209 Other courts have been skeptical of the derivative use theory as well. 210
204 Weiner v. FBI, No. 83-1720, slip op. at 5-7 (C.D. Cal. Dec. 6, 1995) (Exemptions 6 and
7(C)).
205 Cardona v. INS, No. 93-3912, 1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995).
206 Baltimore Sun, 131 F. Supp. 2d at 729-30.
207 Sun-Sentinel v. DHS, 431 F. Supp. 2d 1258, 1269-73 (S.D. Fla. 2006), aff'd sub nom. NewsPress
v. DHS, 489 F.3d 1173 (11th Cir. 2007).
208 554 F.3d at 290.
209 524 F.3d at 1027-28.
210 See, e.g., Painting Indus., 26 F.3d at 1484-85 (concluding that the public interest in
monitoring an agency's enforcement of the Davis-Bacon Act is not served by disclosure of
names and addresses on payroll records because an additional step of contacting employees
is required and the "additional public benefit the requester might realize through these
contacts is inextricably intertwined with the invasions of privacy that those contacts will
work," but also reasoning that if yielding a public interest required only some further research
by the requester, then the fact that the use is a "derivative" one should not detract from the
strength of that public benefit); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 86-87 (D.D.C. 2003)
(continued...) 476 Exemption 6
Finally, if alternative, less intrusive means are available to obtain information that
would serve the public interest, there is less need to require disclosure of information that
would cause an invasion of someone's privacy. Accordingly, the D.C. Circuit has found that
"[w]hile [this is] certainly not a per se defense to a FOIA request," it is appropriate, when
assessing the public interest side of the balancing equation, to consider "the extent to which
there are alternative sources of information available that could serve the public interest in
disclosure."211
210(...continued)
(holding that "disclosure is not compelled under the FOIA because the link between the
request and the potential illumination of agency action is too attenuated . . . and this Court
does not understand the FOIA to encompass" a derivative theory of public interest); Sammis
v. Barnhardt, No. C01-3973, 2002 WL 1285050, at *2 (N.D. Cal. June 6, 2002) ("If this court
allowed disclosure, plaintiff would have to obtain the information, use it to contact applicants
directly, and cause them to take action . . . . This derivative type of benefit is too tenuous to
merit invading individuals' privacy."); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 6
(D.D.C. Mar. 13, 1997) (acknowledging that disclosure of the identities of homeowners who
volunteered to participate in a Superfund study might "provide a glimpse into EPA's activities,"
but finding that "this interest pales in comparison to the potential harm to the privacy" of study
participants, based in part upon "reports of trespassers taking environmental samples"); Upper
Peninsula Envtl. Coal. v. Forest Serv., No. 2:94-cv-021, slip op. at 10 (W.D. Mich. Sept. 28, 1994)
(finding the "derivative" public interest in gathering information that might assist the Forest
Service in managing a wilderness area to be only "negligible," because "[i]t is not the purpose
of the FOIA to allow private citizens to do the work of government agencies").
211 DOD v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992); see Forest Serv. Employees, 524 F.3d
at 1028 ("As a result of the substantial information already in the public domain, we must
conclude that the release of the identities of the employees who participated in the Forest
Service's response to the Cramer Fire would not appreciably further the public's important
interest in monitoring the agency's performance during that tragic event."); Office of the
Capital Collateral Counsel, 331 F.3d at 804 (finding that there is substantial public information
available about the AUSA's misconduct and that therefore any "public interest in knowing how
DOJ responded to [the AUSA's] misconduct can be satisfied by this other public information");
Painting Indus., 26 F.3d at 1485 (union may "pass out fliers" or "post signs or advertisements
soliciting information from workers about possible violations of the Davis-Bacon Act"); FLRA
v. U.S. Dep't of Commerce, 962 F.2d 1055, 1060 n.2 (D.C. Cir. 1992) (union may "distribute
questionnaires or conduct confidential face-to-face interviews" to obtain rating information
about employees); Painting & Drywall, 936 F.2d at 1303 (contact at workplace is alternative
to disclosing home addresses of employees); Multnomah County Med. Soc'y, 825 F.2d 1410,
1416 (9th Cir. 1987) (medical society can have members send literature to their patients as
alternative to disclosure of identities of all Medicare beneficiaries); Chin, No. 97-2176, slip op.
at 4-5 (W.D. La. June 24, 1999) (release of "statistical data and/or general accounts of
incidents" would be an alternative to releasing investigative records of named individual to
show whether government policies were "administered in an arbitrary manner"); cf. Cowdery,
511 F. Supp. 2d at 219 (stating that "it is not clear from the Department's arguments that other
means could adequately provide such information and such an assessment," and so
concluding that "this factor weighs in favor of disclosure"); Heat & Frost Insulators & Asbestos
Workers, Local 16 v. U.S. Dep't of the Air Force, No. S92-2173, slip op. at 3-4 (E.D. Cal. Oct. 4,
(continued...)
Public Interest 477
This principle was taken into account in Favish where, considering the public interest
in disclosure, the Supreme Court recognized that the government had thoroughly investigated
the suicide at issue and that "[i]t would be quite extraordinary to say we must ignore the fact
that five different inquiries into the . . . matter reached the same conclusion."212 Likewise, the
Tenth Circuit found no public interest in a request to FEMA for "electronic map files" showing
the locations of federally insured structures, because the electronic files were "merely
cumulative of the information" that FEMA already had released in "hard copies" of the maps
and because the requester already had a "plethora of information" with which "to evaluate
FEMA's activities."213
Similarly, although courts ordinarily discuss the "public interest" as weighing in favor
of disclosure, several courts including the D.C. Circuit have implicitly recognized that there
can be a public interest in the nondisclosure of personal privacy information -- particularly, the
public interest in avoiding the impairment of ongoing and future law enforcement
investigations.214
211(...continued)
1993) (no alternative to union's request for payroll records -- with names, addresses, and social
security numbers redacted -- would allow union to monitor agency's collection of records in
compliance with federal regulations); Cotton, 798 F. Supp. at 27 n.9 (suggesting that request
for all inspector general reports, from which identifying information could be redacted, would
better serve public interest in overseeing discharge of inspector general duties than does
request for only two specific investigative reports involving known individuals).
212 541 U.S. at 175; see Forest Serv. Employees, 524 F.3d at 102 (noting that four federal
agencies investigated the Cramer Fire incident and "the Forest Service conducted its own
investigation and produced an accident report . . . [containing] a detailed narrative of the
agency's response to the fire as well as findings that the Forest Service's own management
failings contributed to the tragedy").
213 Forest Guardians v. FEMA, 410 F.3d 1214, 1219 & n.3 (10th Cir. 2005).
214 See, e.g., Perlman, 312 F.3d at 106 ("The strong public interest in encouraging witnesses
to participate in future government investigations offsets the weak public interest in learning
witness and third party identities.") (Exemptions 6 and 7(C)); Strout v. U.S. Parole Comm'n, 40
F.3d 136, 139 (6th Cir. 1994) ("[T]here would appear to be a public policy interest against such
disclosure, as the fear of disclosure to a convicted criminal could have a chilling effect on
persons, particularly victims, who would otherwise provide the Commission with information
relevant to a parole decision."); Miller v. Bell, 661 F.2d 623, 631 (7th Cir. 1981) (observing that
the district court failed to consider "the substantial public interest in maintaining the integrity
of future FBI undercover investigations") (Exemption 7(C)); Fund for Constitutional Gov't, 656
F.2d at 865-66 (recognizing that "public interest properly factors into both sides of the
balance," and finding that agency properly withheld the identities of government officials
investigated but not charged with any crime in "Watergate" investigation) (Exemption 7(C));
Amuso, 600 F. Supp. 2d at 97 (stating that "[i]ndividuals involved in law enforcement
investigations" and suspects have a "'substantial interest' in the nondisclosure of their
identities and connection to a particular investigation"); Diaz, No. 01-40070, slip op. at 10 (D.
Mass. Dec. 20, 2001) (deciding that there would be "chilling" effect if conversations between
(continued...) 478 Exemption 6
In conclusion, the public interest analysis is only part of the overall process for
determining whether personal privacy interests should be protected under the FOIA. If an
agency determines that no legitimate FOIA public interest exists, and there is a privacy
interest in the information, then the information should be protected.215 If, on the other hand,
a FOIA public interest is found to exist, the next step of the analysis requires the public
interest in disclosure to be weighed against the privacy interest in nondisclosure.216
Balancing Process
If an agency determined that there is a substantial (i.e., more than de minimis) privacy
interest in nondisclosure of requested information and there is also a FOIA public interest in
disclosure (i.e., the information reveals the operations or activities of the government) the two
competing interests must be weighed against one another in order to determine whether
disclosure would constitute a clearly unwarranted invasion of personal privacy.217 In other
words, identifying a substantial privacy interest and the existence of a FOIA public interest
"does not conclude the inquiry; it only moves it along to the point where [the agency] can
'address the question whether the public interest in disclosure outweighs the individual
privacy concerns.'"218 If the privacy interests against disclosure are greater than the public
interests in disclosure, the information may be properly withheld; alternatively, if the balance
214(...continued)
inmates and their attorneys were disclosed to public anytime they spoke on monitored prison
telephones).
215 See Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988)
(perceiving no public interest in disclosure of employees' social security numbers); Schoenman
v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Seized Prop. Recovery, 502 F. Supp. 2d at 56 ("If
no public interest is found, then withholding the information is proper, even if the privacy
interest is only modest."); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 144-45
(D.D.C. 2007) (Exemptions 6 and 7(C)).
216 See Associated Press v. DOD, 554 F.3d at 291 ("'Only where a privacy interest is
implicated does the public interest for which the information will serve become relevant and
require a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d 503, 509
(1992))); see also Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted'
requires us to balance the family's privacy interest against the public interest in disclosure.")
(Exemption 7(C)).
217 See DOD v. FLRA, 510 U.S. 487, 495 (1994); DOJ v. Reporters Comm. For Freedom of the
Press, 489 U.S. 749, 762 (1989)(discussing balancing in Exemption 7(C) context, which
generally employs same balancing test applicable in Exemption 6 cases); Dep't of the Air
Force v. Rose, 425 U.S. 352, 372 (1976); see also FOIA Update, Vol. X, No. 2, at 7 ("FOIA
Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decision making").
218 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (quoting Nat'l Ass'n
of Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002); see Reporters Comm., 489 U.S. at
749 (a "court must balance the public interest in disclosure against the interest Congress
intended the [e]xemption to protect"); FLRA, 510 U.S. at 495 (same); Dep't of State v. Ray, 502
U.S. 164, 175 (1991) (same); Rose 425 U.S. at 372 (same). Balancing Process 479
is in favor of disclosure the information should be released.219
Some courts apply a four-part balancing test created by the Court of Appeals for the
Ninth Circuit in Church of Scientology v. U.S. Dep't of Army,220 which, although not expressly
overturned, has been impliedly superseded in favor of the two-factor test, as evidenced by the
majority of subsequent case law.221
As the Supreme Court has held: "Exemption 6 does not protect against disclosure every
incidental invasion of privacy, only such disclosures as constitute 'clearly unwarranted'
invasions of personal privacy."222 In balancing these interests, "the 'clearly unwarranted'
language of Exemption 6 weights the scales in favor of disclosure"223 and "creates a 'heavy
burden'" for an agency invoking Exemption 6.224
Although "the presumption in favor of disclosure is as strong [under Exemption 6] as
219 See, e.g., Rose, 502 U.S. at 177 (noting that "unless the invasion of privacy is 'clearly
unwarranted,' the public interest in disclosure must prevail"); News-Press v. DHS, 489 F.3d
1173, 1205 (11th Cir. 2007) ("In order to affirm withholding the addresses, we would have to
find that the privacy interests against disclosure are greater than the public interest in
disclosure."); see also Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808,
809 (D.C. Cir. 1978) (finding that "[s]ince this is a balancing test, any invasion of privacy can
prevail, so long as the public interest balanced against it is sufficiently weaker").
220 611 F.2d 738 (9th Cir. 1979); see Habeas Corpus Res. Ctr. v. DOJ, No. 08-2649, 2008 WL
5000224 at *4 (N.D. Cal. Nov. 21, 2008) (applying a four-part balancing test); MacLean v. U.S.
Dep’t of Army, No. 05-CV-1519, 2007 WL 935604 at *15 (S.D. Cal. Mar. 6, 2007) (applying a fourpart
balancing test).
221 See Painting Industry of Haw. Market Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d
1479, 1482 (9th Cir.1994) ("Exemption 6 requires that courts balance the public interests in
disclosure against the privacy interests that would be harmed by disclosure."); Hunt v. FBI,
972 F.2d 286, 290 (9th Cir.1992) (recognizing that Exemption 6 requires "a balancing of the
public interest in disclosure against the possible invasion of privacy caused by the
disclosure"); Or. Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1089 (D. Or.
1998) (noting that four-factor test "has been effectively superseded by the exclusive two-factor
test").
222 Rose, 425 U.S. at 382; see, e.g., Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009)
(same).
223 Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984); see, e.g., Morley v. CIA, 508 F.3d 1108, 1127
(D.C. Cir. 2007) ("'Exemption 6's requirement that disclosure be clearly unwarranted instructs
us to tilt the balance (of disclosure interests against privacy interests) in favor of disclosure.'"
(quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982))).
224 Morley, 508 F.3d at 1127, (quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir.
1982)). 480 Exemption 6
can be found anywhere in the Act,"225 courts have readily protected personal, intimate details
of an individual's life. For example, as the Court of Appeals for the District of Columbia Circuit
has noted, courts have traditionally upheld the nondisclosure of information concerning
"marital status, legitimacy of children, identity of fathers of children, medical condition,
welfare payments, alcoholic consumption, family fights, reputation" and similarly personal
information.226 Furthermore, courts have consistently upheld protection for:
(1) birth dates;227
(2) religious affiliations;228
(3) citizenship data;229
225 Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982).
226 Rural Hous. Alliance v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974); see Hardison v. Sec'y of
VA, 159 F. App'x 93, 94 (11th Cir. 2005) (dates of marriage and spouses' names); McDonnell
v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) ("living individual has a strong privacy
interest in withholding his medical records"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584
F. Supp. 2d 94, 97 (D.D.C. 2008) (upholding nondisclosure of hospital patient admission
records); Pub. Employees for Envtl. Responsibility v. U.S. Dep't of the Interior, No. 06-182, 2006
WL 3422484, at *4 n.4 (D.D.C. Nov. 28, 2006) (withholding information detailing employee's
physical ailments and medical advice regarding those ailments); Sousa v. DOJ, No. 95-375,
1997 U.S. Dist. LEXIS 9010, at *22 (D.D.C. June 18, 1997) (withholding co-defendant's medical
records); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (upholding
nondisclosure of names, addresses, and claim denial letters of rejected social security
disability claimants), aff'd per curiam, No. 96-9000 (11th Cir. July 8, 1997); Hunt v. U.S. Marine
Corps, 935 F. Supp. 46, 54 (D.D.C. 1996) (observing that although public may have interest in
a political candidate's fitness for office, disclosure of candidate's medical records would not
shed light on conduct of Marine Corps).
227 See, e.g., Hardison, 159 F. App'x at 93; In Defense of Animals v. NIH, 543 F. Supp. 2d 70,
80 (D.D.C. 2008) ("Exemption 6 allows an agency to withhold documents if they contain
personal identifying information, such as 'place of birth, date of birth, date of marriage,
employment history, and comparable data.'" (quoting U.S. Dep't of State v. Wash. Post Co., 456
U.S. 595, 600)); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 83 F. Supp. 2d 105, 112 (D.D.C.
1999), appeal dismissed voluntarily, No. 99-5054 (D.C. Cir. Sept. 10, 1999).
228 See, e.g., Church of Scientology, 611 F.2d at 747.
229 See U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (passport information);
Hemenway v. Hughes, 601 F. Supp. 1002, 1006 (D.D.C. 1985) ("Nationals from some countries
face persistent discrimination . . . [and] are potential targets for terrorist attacks."); cf. Judicial
Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at *8 (D.D.C. Mar. 30, 2001) (asylum
application); Judicial Watch, Inc., 83 F. Supp. 2d at 112 (visa and passport data). Balancing Process 481
(4) genealogical history establishing membership in a Native American Tribe;230
(5) social security numbers;231
(6) criminal history records;232
(7) incarceration of United States citizens in foreign prisons;233
(8) identities of crime victims;234 and
(9) financial information.235
230 Quinault Indian Nation v. Gover, No. C97-5625, transcript at 52-57 (W.D. Wash. Oct. 19,
1998), aff'd sub nom. Quinault Indian Nation v. Deer, 232 F.3d 896 (9th Cir. 2000) (unpublished
table decision).
231 See, e.g., Sherman v. U.S. Dep't of the Army, 244 F.3d 357, 365-66 (5th Cir. 2001);
Norwood v. FAA, 993 F.2d 570, 575 (6th Cir. 1993); Schoenman v. FBI, 575 F. Supp. 2d 136, 164
(D.D.C. 2008) (concluding that "the Army has properly invoked FOIA Exemption 6 to withhold
the names, birthdates, and social security numbers of government personnel and third
parties"); Peay v. DOJ, No. 04-1859, 2006 WL 1805616, at *2 (D.D.C. June 29, 2006) ("The IRS
properly applied exemption 6 to the social security numbers of IRS personnel."); Dayton
Newspapers, Inc. v. U.S. Dep't of the Navy, No. C-3-95-328, slip op. at 31-38 (S.D. Ohio Sept.
12, 1996) (same); Fid. Nat'l Title Ins. Co. v. HHS, No. 91-5484, slip op. at 6-7 (C.D. Cal. Feb. 13,
1992) (same).
232 See, e.g., Reporters Comm., 489 U.S. at 780; Associated Press v. DOJ, 549 F.3d 62, 66 (2d
Cir. 2008) (per curiam) (holding commutation petition exempt from disclosure under
Exemptions 6 and 7(C)); Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1124-26 (D.C. Cir. 2004)
(protecting pardon applications, which include information about crimes committed); Lee v.
DOJ, No. 05-1665, 2007 WL 744731, at *2 (D.D.C. Mar. 6, 2007) (withholding list of individuals
convicted of serious criminal activity from whom the government attempted to collect
restitution).
233 See Harbolt v. Dep't of State, 616 F.2d 772, 774 (5th Cir. 1980).
234 See, e.g., Horowitz v. Peace Corps, 428 F.3d 271, 279-80 (D.C. Cir. 2005) ("Our law
uniformly recognizes that strong privacy interests are implicated when . . . [an] individual has
reported a sexual assault."); Elliott v. FBI, No. 06-1244, 2007 WL 1302595, at *6 (D.D.C. May 2,
2007) (upholding FBI's withholding of identity of juvenile victim of sexual assault) (Exemption
7(C)).
235 See, e.g., Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046, 1056 (D.C. Cir.
2009) (concluding that HHS properly withheld information that could reveal total payments
received by physicians from Medicare for covered services); Beard v. Espy, No. 94-16748, 1995
WL 792071, at *1 (9th Cir. Dec. 11, 1995); Hill v. USDA, 77 F. Supp. 2d 6, 8-9 (D.D.C. 1999),
summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000);
Green v. United States, 8 F. Supp. 2d 983, 998 (W.D. Mich. 1998), appeal dismissed, No. 98
(continued...) 482 Exemption 6
Even "favorable information," such as details of an employee's outstanding performance
evaluation, can be protected on the basis that it "may well embarrass an individual or incite
jealousy" among coworkers.236 Moreover, release of such information "reveals by omission the
identities of employees who did not receive high ratings, creating an invasion of their
privacy."237
Balancing Process for Names & Addresses
Requests for the names and home addresses of individuals has generated much
litigation over the years. Because agencies may neither distinguish between requesters nor
limit the use to which disclosed information is put,238 courts have found that an analysis of the
consequences of disclosure of names and addresses cannot turn on the identity or purpose
of the requester.239 The Supreme Court has held that compilations of names and home
235(...continued)
1568 (6th Cir. Aug. 11, 1998); Stabasefski v. United States, 919 F. Supp. 1570, 1575 (M.D. Ga.
1996); Biase v. Office of Thrift Supervision, No. 93-2521, slip op. at 8-10 (D.N.J. Dec. 10, 1993);
Okla. Publ'g Co. v. HUD, No. 87-1935-P, 1988 U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June
17, 1988).
236 Ripskis, 746 F.2d at 3; see Hardison, 159 F. App'x at 93 (performance appraisals); FLRA
v. U.S. Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (performance appraisals);
Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006) (employee or
candidate rankings and evaluations); Vunder v. Potter, No. 05-142, 2006 WL 162985, at *2-3
(D. Utah Jan. 20, 2006) (narrative of accomplishments submitted to superiors for consideration
in performance evaluation); Tomscha v. GSA, No. 03-6755, 2004 WL 1234043, at *4 (S.D.N.Y.
June 3, 2004) ("Both favorable and unfavorable assessments trigger a privacy interest."), aff'd,
158 F. App'x 329, 331 (2d Cir. 2005) ("[W]e agree with the district court's finding that the
release of the justifications for [plaintiff's] awards would constitute more than a de minimis
invasion of privacy, as they necessarily include private, albeit positive, information regarding
his job performance."). But see also Hardy v. DOD, No. CV-99-523, 2001 WL 34354945, at *9
(D. Ariz. Aug. 27, 2001) (finding concern with jealousy on parts of co-workers diminished by
fact that subject employee had since retired).
237 FLRA, 962 F.2d at 1059.
238 See NARA v. Favish, 541 U.S. 157, 174 (2004) ("It must be remembered that once there
is disclosure, the information belongs to the general public. There is no mechanism under
FOIA for a protective order allowing only the requester to see . . . the information . . . or for
proscribing its general dissemination."); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest
Serv., 524 F.3d 1021, 1025 (9th Cir. 2008) ("FOIA provides every member of the public with
equal access to public documents and, as such, information released in response to one FOIA
request must be released to the public at large.").
239 See Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 356 (1997) (finding irrelevant
requester's claimed purpose for seeking mailing list in order to disseminate information); Nat'l
Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafter
NARFE] (finding irrelevant requester's claimed purpose to use list of federal retirees to aid in
(continued...) Balancing Process for Names & Addresses 483
addresses are protectible under Exemption 6,240 and that specific lists may reveal sensitive
information beyond the mere names and addresses of the individuals found on the list.241 The
D.C. Circuit addressed the question of whether disclosure of mailing lists constituted a clearly
unwarranted invasion of personal privacy in National Ass'n of Retired Federal Employees v.
Horner, and, while stopping short of creating a nondisclosure category for all mailing lists, the
D.C. Circuit held that mailing lists consisting of names and home addresses of federal
annuitants are categorically withholdable under Exemption 6.242
239(...continued)
its lobbying efforts on behalf of those retirees); Schwarz v. Dep't of State, No. 97-1342, slip op.
at 5 (D.D.C. Mar. 20, 1998) (holding, despite plaintiff's claim that she needed address of third
party to assist her, that the "merits of an agency's FOIA determinations do not rest on the
identity of the requester or the purpose for which the information is intended to be used"), aff'd
per curiam, 172 F.3d 921 (D.C. Cir. 1998) (unpublished table decision); see also Robbins v.
HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (rejecting as "too attenuated"
plaintiff's claim of intent to use names and addresses of rejected social security disability
claimants as means to represent them and "thereby 'promote the effective uniform
administration of the disability program,'" and ultimately reveal alleged wrongful denials
(quoting plaintiff's papers)); Bongiorno v. Reno, No. 95-72143, 1996 WL 426451, at *14 (E.D.
Mich. Mar. 19, 1996) (noting that requester sought personal information concerning his
adopted daughter "for his own purposes, [and] as understandable as they may be, [those
purpose are] not to shine a public light into the recesses of the federal bureaucracy"); Andrews
v. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (declining to release individual's address,
telephone number, and place of employment to requester seeking it for purpose of satisfying
monetary judgment).
240 See Bibles, 519 U.S. at 355-56 (protecting mailing list of recipients of Bureau of Land
Management publication); DOD v. FLRA, 510 U.S. 487, 494-502 (1994) (protecting names and
home addresses of federal employees in union bargaining units); Dep't of State v. Ray, 502 U.S.
164, 173-79 (1991) (withholding from interview summaries the names and addresses of Haitian
refugees interviewed by State Department about treatment upon return to Haiti).
241 See Ray, 502 U.S. at 176 (observing that disclosure of a list of Haitian refugees
interviewed by the State Department about their treatment upon return to Haiti "would
publicly identify the interviewees as people who cooperated with a State Department
investigation"); Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-88 (8th Cir. 2000)
(protecting list of pork producers who signed petition that declared their position on
referendum that was sought by petition) (reverse FOIA suit); NARFE, 879 F.2d at 876
(characterizing the list at issue as revealing that each individual on it "is retired or disabled
(or the survivor of such a person) and receives a monthly annuity check from the federal
Government"); Minnis v. USDA, 737 F.2d 784, 787 (9th Cir. 1984) ("Disclosure would reveal not
only the applicants' names and addresses, but also their personal interests in water sports
and the out-of-doors.").
242 NARFE, 879 F.2d at 879; see also Retired Officers Ass'n v. Dep't of the Navy, 744 F. Supp.
1, 2-3 (D.D.C. May 14, 1990) (holding names and home addresses of retired military officers
exempt); cf. Reed v. NLRB, 927 F.2d 1249, 1251-52 (D.C. Cir. 1991) (categorically protecting
"Excelsior" list (names and addresses of employees eligible to vote in union representation
(continued...) 484 Exemption 6
In these types of cases, courts have frequently found the asserted public interest too
attenuated to overcome the clear privacy interest an individual has in his name and home
address. Nevertheless, several lower courts have ordered the disclosure of such information
in certain contexts. Some of these courts have found little or no privacy interest in the names
and addresses at issue. 243 Other courts have ordered the release of such personal information
on the rationale that the names and addresses themselves would reveal (or lead to other
information that would reveal) how an agency conducted some aspect of its business.244
242(...continued)
elections)).
243 See Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 36 (D.C. Cir. 2002) (finding
privacy interest "relatively weak," and determining that public interest in learning about
agency's use of owl data is served by release of lot numbers of parcels of land where owls
have been spotted, even while acknowledging that the identities of landowners could be
determined by use of this information); Avondale Indus. v. NLRB, 90 F.3d 955, 961 (5th Cir.
1996) (finding that names and addresses of voters in union election already were disclosed
in voluminous public record); People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp.
2d 284, 306 (D.D.C. 2007) (ordering release of names of those who voluntarily submitted
comments regarding informational video shown at Lincoln Memorial because "the public
interest in knowing who may be exerting influence on National Park Service officials sufficient
to convince them to change the video outweighs any privacy interest in one's name.");
Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001) (declaring that
purchasers of property previously seized by the government "voluntarily choose to participate
in . . . a wholly legal commercial transaction" and "have little to fear in the way of 'harassment,
annoyance, or embarrassment'") (Exemption 7(C)); Alliance for the Wild Rockies v. Dep't of the
Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999) (concluding that commenters to proposed
rulemaking could have little expectation of privacy when rulemaking notice stated that
complete file would be publicly available); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36
(D.D.C. Oct. 18, 1996) (finding minimal privacy interest in home addresses at which farmers
receiving subsidies under cotton price support program operate their businesses), appeal
dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson & Bishop Chartered v.
USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (finding no privacy interest in names of
commercial mushroom growers operating under own names).
244 See Baltimore Sun, 131 F. Supp. 2d at 729-30 (names and addresses of purchasers of
property seized by government found to allow public to assess agencies' exercise of their
power to seize property and their duty to dispose of such property) (Exemption 7(C)); Or.
Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1093 (D. Or. 1998) (names
of cattle owners who violated federal grazing laws found to reveal "how government is
enforcing and punishing violations of land management laws") (Exemption 7(C)); Maples v.
USDA, No. 97-5663, slip op. at 14 (E.D. Cal. Jan. 13, 1998) (names and addresses of permit
holders for use of federal lands "would provide the public with an understanding of how the
permit process works"); Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13
(D. Wyo. May 31, 1994) (list of citizens who reported wolf sightings found to show agency
activities "with respect to the duties imposed upon it by the Endangered Species Act"); Ray
v. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (names and addresses of interdicted
Haitians might reveal "information concerning our government's conduct during the
(continued...)
Balancing Process for Names & Addresses 485
For example, the Court of Appeals for the Eleventh Circuit concluded in News-Press v.
DHS that disclosure of the addresses of buildings that received disaster assistance from
FEMA should be released, but that the names of aid recipients were properly withheld.245 The
court recognized that the public had a legitimate interest in knowing whether FEMA
appropriately handled billions of dollars in disaster relief claims, especially in light of evidence
submitted by the requesters of wasteful or fraudulent spending of disaster assistance funds.246
The court went on to find that the addresses of those structures allegedly damaged would
shed light directly on the allegations of impropriety, as those addresses that received disaster
relief which were located outside the path of the natural disasters "plainly would raise red
flags" regarding FEMA’s effectiveness in properly distributing disaster assistance.247
Against this "powerful public interest,"248 the court weighed the privacy interests of aid
recipients in the nondisclosure of their home addresses. The Court identified a number of
privacy interests threatened by disclosure of the home addresses, including the fact that
disclosure of the addresses would allow the public to "link certain information already
disclosed by FEMA to particular individuals." 249 However, the court found that these privacy
interests were not substantial enough to warrant protection under Exemption 6.250 In
summary, the court stated that "[q]uite simply, the disclosure of the addresses serves a
powerful public interest, and the privacy interests extant cannot be said even to rival this
public interest, let alone exceed it, so that disclosure would constitute a 'clearly unwarranted'
invasion of personal privacy." 251 The court remarked that in this case it did "not find the
balancing calculus to be particularly hard."252
By contrast, the court held that disclosure of the names of the aid recipients would
constitute a "clearly unwarranted invasion of personal privacy."253 Whereas the addresses
would shed light directly on whether FEMA improperly disbursed funds, the names of those
244(...continued)
interdiction process"); Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me.
Apr. 14, 1994) (list of individuals who sold land to Fish and Wildlife Service found to inform the
public "about the methods used by FWS in acquiring property throughout the United States").
245 489 F.3d 1173, 1205-06 (11th Cir. 2007).
246 Id. at 1192.
247 Id. at 1192-96.
248 Id. at 1196.
249 Id. at 1199.
250 Id. at 1200.
251 Id. at 1205.
252 Id.
253 Id.
486 Exemption 6
aid recipients "'would provide no further insight into the operations of FEMA.'"254 As such, the
court found that the public’s interest in the aid recipient names was "outweighed by the
increased privacy risks" posed by disclosure of those names.255
In certain circumstances, an individual may have an interest in having his or her
personal information disclosed rather than withheld. In Lepelletier v. FDIC, the D.C. Circuit
remanded the case back to the district court to determine whether some of the names of
individual depositors with unclaimed funds at banks for which the FDIC was then the receiver
should be released to a professional money finder.256 Introducing a new element into the
balancing test for this particular type of information, the D.C. Circuit held that the standard
test "is inapposite here, i.e., where the individuals whom the government seeks to protect
have a clear interest in the release of the requested information."257 As guidance to the lower
court charged with addressing this novel set of circumstances, the D.C. Circuit ordered, first,
that "release of names associated with unclaimed deposits should not be matched with the
amount owed to that individual" and, second, that "on remand, the District Court must
determine the dollar amount below which an individual's privacy interest should be deemed
to outweigh his or her interest in discovering his or her money, such that the names of
depositors with lesser amounts may be redacted."258
Partial Disclosures
In some contexts, deletion of the identities of the individuals mentioned in a document,
with release of the remaining material, provides protection for personal privacy while at the
same time allows for the disclosure of information regarding government activities. For
example, in Department of the Air Force v. Rose, the Supreme Court ordered the release of
case summaries of disciplinary proceedings, provided that personal identifying information
was deleted.259 Similarly, courts have ordered the disclosure of computerized lists of numbers
and types of drugs routinely ordered by the congressional pharmacy after deletion of any item
254 Id. at 1205 (quoting Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1271 (S.D. Fla. 2006)).
255 Id.
256 164 F.3d 37, 48-49 (D.C. Cir. 1999).
257 Id. at 48.
258 Id.
259 425 U.S. 352, 380-81 (1976); see Ripskis v. HUD, 746 F.2d 1, 4 (D.C. Cir. 1984)(noting that
agency voluntarily released outstanding performance rating forms with identifying
information deleted); Aldridge v. U.S. Comm'r of Internal Revenue, No. 7:00-CV-131, 2001 WL
196965, at *3 (N.D. Tex. Feb. 23, 2001) (determining that privacy interests of employees
recommended for discipline could be protected by redacting their names); Hecht v. USAID,
No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) (finding that privacy interests of
government contractor's employees could be protected by withholding their names and
addresses from biographical data sheets); Church of Scientology v. IRS, 816 F. Supp. 1138,
1160 (W.D. Tex. 1993) (ordering agency to protect employees' privacy interests in their
handwriting by typing handwritten records at requester's expense). Partial Disclosures 487
identifiable to a specific individual, 260 and have ordered the disclosure of documents
concerning disciplined IRS employees, provided that all names and other identifying
information were deleted. 261 Similarly, documents voluntarily submitted to the government
by private citizens have been held releasable, as long as redactions are made of personally
identifying information.262 For example, in Carter, Fullerton & Hayes LLC v. FTC, the FTC
released the text of all responsive documents located in its consumer complaint database
except for personal information pertaining to individual consumers.263
Nevertheless, in some situations the deletion of personal identifying information may
not be adequate to provide necessary privacy protection.264 As such, in Rose, the Supreme
Court specifically held that if it were determined on remand that the deletions of personal
references were not sufficient to safeguard privacy, then the summaries of disciplinary
hearings should not be released.265
260 See Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468-69 (D.C. Cir. 1983); see also
Dayton Newspapers, Inc. v. Dep't of the Air Force, 35 F. Supp. 2d 1033, 1035 (S.D. Ohio 1998)
(ordering release of militarywide medical tort-claims database with "claimants' names, social
security numbers, home addresses, home/work telephone numbers and places of
employment" redacted); Chi. Tribune Co. v. HHS, No. 95 C 3917, 1997 WL 1137641, at *18-19
(N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (ordering release of patient data forms
that identify patients only by nine-digit encoded "Study Numbers"), adopted, (N.D. Ill. Mar. 28,
1997); Minntech Corp. v. HHS, No. 92-2720, slip op. at 5 (D.D.C. Nov. 17, 1993) (ordering release
of FDA studies concerning mortality rates and use of kidney dialyzers with names, addresses,
places of birth, and last four digits of social security numbers deleted); Frets v. Dep't of
Transp., No. 88-404-W-9, 1989 WL 222608, at *5 (W.D. Mo. Dec. 14, 1989) (ordering disclosure
of drug reports of air traffic controllers with identities deleted); Citizens for Envtl. Quality v.
USDA, 602 F. Supp. 534, 538-39 (D.D.C. 1984) (ordering disclosure of health test results
because identity of single agency employee tested could not, after deletion of his name, be
ascertained from any information known outside appropriate part of agency (citing Rose, 425
U.S. at 380 n.19 (dicta))).
261 See Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979); cf. Senate of P.R. v. DOJ,
No. 84-1829, 1993 WL 364696, at *10-11 (D.D.C. Aug. 24, 1993) (ordering release of information
concerning cooperating inmate after redaction of identifying details).
262 See Billington v. DOJ, 258 F. App'x 348, 349 (D.C. Cir. 2007).
263 520 F. Supp. 2d 134, 148 (D.D.C. 2007).
264 See, e.g., Harry v. Dep't of the Army, No. 92-1654, slip op. at 9 (D.D.C. Sept. 13, 1993)
(concluding that redaction of ROTC personnel records was not possible because "intimate
character" of ROTC corps at university would make records recognizable to requester who
was in charge of university's ROTC program); see also Alirez v. NLRB, 676 F.2d 423, 428 (10th
Cir. 1982) (finding that deletion of names and other identifying data pertaining to small group
of co-workers was simply inadequate to protect them from embarrassment or reprisals
because requester could still possibly identify individuals) (Exemption 7(C)).
265 425 U.S. at 381; see also, e.g., ACLU v. DOD, 389 F. Supp. 2d 547, 572 (S.D.N.Y. 2005)
(continued...) 488 Exemption 6
In another example, to protect those persons who were the subjects of disciplinary
actions that were later dismissed, Court of Appeals for the District of Columbia Circuit upheld
the nondisclosure of public information contained in such disciplinary files when the redaction
of personal information would not be adequate to protect the privacy of the subjects because
the requester could easily obtain and compare unredacted copies of the documents from
public sources.266 Similarly, when the information in question concerns a small group of
individuals who are known to each other and easily identifiable from the details contained in
the information, redaction might not adequately protect privacy interests.267
Furthermore, when requested information is "unique and specific" to the subjects of a
265(...continued)
(declaring that for certain photographic and video images, "where the context compelled the
conclusion that individual recognition could not be prevented without redaction so extensive
as to render the images meaningless, [the court orders] those images not to be produced").
266 Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987); see also, e.g., Marzen
v. HHS, 825 F.2d 1148, 1152 (7th Cir. 1987) (concluding that redaction of "identifying
characteristics" would not protect the privacy of a deceased infant's family because others
could ascertain the identity and "would learn the intimate details connected with the family's
ordeal"); Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459, at *3 (D.
Minn. July 19, 2001) (finding that disclosure of zip codes and dates of signatures could identify
signers of petition); Ligorner v. Reno, 2 F. Supp. 2d 400, 405 (S.D.N.Y. 1998) (finding that
redaction of a complaint letter to the Office of Professional Responsibility would be inadequate
to protect the identities of the individual accused of misconduct and of the accuser, because
"public could deduce the identities of the individuals whose names appear in the document
from its context").
267 See, e.g., Alirez, 676 F.2d at 428 (finding that mere deletion of names and other
identifying data concerning small group of co-workers inadequate to protect them from
embarrassment or reprisals because requester could still possibly identify individuals)
(Exemption 7(C)); Karantsalis v. U.S. Dep't of Educ., No. 05-22088, slip op. at 4 n.4 (S.D. Fla.
Dec. 19, 2005) (reasoning that because the requested document dealt "with a particular, small
workplace, and since the contents of the report deal exclusively with confidential personnel
matters, it is not possible, as in some cases, merely to excise personally identifying
information"); Butler v. SSA, No. 03-0810, slip op. at 6 (W.D. La. June 25, 2004) (protecting
complaints made against the requester, "because the employee or employees who complained
could have been easily identified by the fact scenarios described in the documents"), aff'd on
other grounds, 146 F. App'x 752 (5th Cir. 2005); Rothman v. Dep't of Agric., No. 94-8151, slip
op. at 8-9 (C.D. Cal. June 17, 1996) (protecting information in employment applications that
pertains to knowledge, skills, and abilities of unsuccessful applicants, because the "field of
candidates for this particular position (canine officer) is specialized and is limited to about
forty persons who work in same agency and may know each other personally"); McLeod v.
Pena, No. 94-1924, slip op. at 6 (D.D.C. Feb. 9, 1996) (concluding that redaction of investigative
memoranda and witness statements would not protect privacy when "community of possible
witnesses and investigators is very small" -- eight officers and twenty enlisted personnel)
(Exemption 7(C)); Barvick v. Cisneros, 941 F. Supp. 1015, 1021-22 (D. Kan. 1996) (protecting
all information about unsuccessful federal job applicants because any information about
members of "select group" that applies for such job could identify them). Partial Disclosures 489
record, "individual identities may become apparent from the specific details set forth in [the]
documents," so that "deletion of personal identifying information . . . may not be adequate to
provide the necessary privacy protection."268 Indeed, a determination of what constitutes
identifying information requires both an objective analysis and an analysis "from the vantage
point of those familiar with the mentioned individuals."269
268 Rashid v. DOJ, No. 99-2461, slip op. at 15-16 (D.D.C. June 12, 2001); see Whitehouse v.
U.S. Dep't of Labor, 997 F. Supp. 172, 175 (D. Mass. 1998) (discerning "no practical way" to
sanitize "personal and unique" medical evaluation reports to prevent identification by
knowledgeable reader); Ortiz v. HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (finding that
factors such as type style, grammar, syntax, language usage, writing style, and mention of
facts "that would reasonably be known only by a few persons" could lead to identification of
the author if an anonymous letter were released) (Exemptions 7(C) and 7(D)), aff'd on
Exemption 7(D) grounds, 70 F.3d 729 (2d Cir. 1995).
269 Cappabianca v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1565 (M.D. Fla. 1994).
But see also ACLU v. DOD, 389 F. Supp. 2d at 572 ("If, because someone sees the redacted
pictures and remembers from earlier versions leaked to, or otherwise obtained by, the media
that his image, or someone else's, may have been redacted from the picture, the intrusion into
personal privacy is marginal and speculative, arising from the event itself and not the
redacted image.")
Department of Justice Guide to the Freedom of Information Act 417
Exemption 6
Personal privacy interests are protected by two provisions of the Freedom of
Information Act, Exemptions 6 and 7(C).1 Under the FOIA, "privacy encompass[es] the
individual's control of information concerning his or her person."2 Exemption 6 protects
information about individuals in "personnel and medical files and similar files" when the
disclosure of such information "would constitute a clearly unwarranted invasion of personal
privacy."3 Exemption 7(C), discussed below, is limited to information compiled for law
enforcement purposes, and protects personal information when disclosure "could reasonably
be expected to constitute an unwarranted invasion of personal privacy."4
Introduction
In order to determine whether Exemption 6 protects against disclosure, an agency
should engage in the following two lines of inquiry: first, determine whether the information
at issue is contained in a personnel, medical, or "similar" file covered by Exemption 6; and, if
so, determine whether disclosure "would constitute a clearly unwarranted invasion of personal
privacy" by balancing the privacy interest that would be compromised by disclosure against
any public interest in the requested information. 5
When engaging in this analysis, it is
important to remember that the Court of Appeals for the District of Columbia Circuit has
declared that "'under Exemption 6, the presumption in favor of disclosure is as strong as can
1
5 U.S.C. § 552(b)(6), (7)(C) (2006), amended by OPEN Government Act of 2007, Pub. L. No.
110-175, 121 Stat. 2524; see also Presidential Memorandum for Heads of Executive
Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683
(Jan. 21, 2009) (emphasizing that the Freedom of Information Act reflects a "profound national
commitment to ensuring an open Government" and directing agencies to "adopt a
presumption in favor of disclosure"); accord Attorney General Holder's Memorandum for Heads
of Executive Departments and Agencies Concerning the Freedom of Information Act (Mar. 19,
2009), available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf; FOIA Post, "OIP
Guidance: President Obama's FOIA Memorandum and Attorney General Holder's FOIA
Guidelines - Creating a New Era of Open Government" (posted 4/17/09).
2
DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989).
3
5 U.S.C. § 552(b)(6).
4
5 U.S.C. § 552(b)(7)(C).
5
See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.
DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007). 418 Exemption 6
be found anywhere in the Act.'"6 Additionally, it is important to keep in mind that Exemption
6 cannot be invoked to withhold from a requester information pertaining only to himself.7
To warrant protection under Exemption 6, information must first meet its threshold
requirement; in other words, it must fall within the category of "personnel and medical files
and similar files."8 Once it has been established that information meets the threshold
requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records
at issue "would constitute a clearly unwarranted invasion of personal privacy."9 This requires
a balancing of the public's right to disclosure against the individual's right to privacy.10 First,
it must be ascertained whether a protectible privacy interest exists that would be threatened
by disclosure.11 If no privacy interest is found, further analysis is unnecessary and the
6 Multi Ag, 515 F.3d at 1227 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,
32 (D.C. Cir. 2002)); see also Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554
F.3d 1046, 1057 (D.C. Cir. 2009) (stating that FOIA's "presumption favoring disclosure . . . is at
its zenith under Exemption 6”); Lawyers' Comm. for Civil Rights of S.F. Bay Area v. Dep't of
the Treasury, No. 07-2590, 2008 WL 4482855, at *20 (N.D. Cal. Sept. 30, 2008) ("The burden
remains on the agency to justify any withholdings under Exemption 6 since the presumption
in favor of disclosure under this exemption is as strong as that with other exemptions.").
7 See Reporters Comm., 489 U.S. at 771 (citing DOJ v. Julian, 486 U.S. 1, 13-14 (1988)); Dean
v. FDIC, 389 F. Supp. 2d 780, 794 (E.D. Ky. 2005) (stating that "to the extent that the
defendants have redacted the 'name, address, and other identifying information' of the plaintiff
himself in these documents . . . reliance on Exemption 6 or 7(C) would be improper"); H.R. Rep.
No. 93-1380, at 13 (1974); see also FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Under
the Supreme Court's Reporters Committee Decision") (advising that, as a matter of sound
administrative practice, "[a]n agency will not invoke an exemption to protect a requester from
himself").
8
5 U.S.C. § 552(b)(6).
9
Id.
10 See Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Berger v. IRS, 288 F. App'x 829,
832 (3d Cir. 2008) ("To determine whether the exemption applies, courts balance the public
interest in disclosure against the privacy interest protected by the exemption."); Fund for
Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981); see
also Seized Prop. Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 56
(D.D.C. 2007) ("In determining whether the release of requested information constitutes a
'clearly unwarranted invasion of personal privacy,' the court must balance the individual's right
to privacy against the public's interest in disclosure.") (Exemptions 6 and 7(C)), appeal
dismissed, No. 07-5287, 2007 WL 2910069 (D.C. Cir. Oct. 5, 2007).
11 Multi Ag, 515 F.3d at 1229 ("The balancing analysis for FOIA Exemption 6 requires that
we first determine whether disclosure of the files 'would compromise a substantial, as
opposed to de minimis, privacy interest[.]''' (quoting Nat'l Ass'n of Retired Fed. Employees v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))).
Introduction 419
information at issue must be disclosed.12
On the other hand, if a privacy interest is found to exist, the public interest in
disclosure, if any, must be weighed against the privacy interest in nondisclosure.13 If no
public interest exists, the information should be protected; as the D.C. Circuit has observed,
"something, even a modest privacy interest, outweighs nothing every time."14 If there is a
public interest in disclosure that outweighs the privacy interest, the information should be
disclosed; if the opposite is found to be the case, the information should be withheld.15
12 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest is
implicated . . . FOIA demands disclosure'" (quoting Nat'l Ass'n of Retired Fed. Employees v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989))); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984);
Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)
(concluding that no balancing analysis was required "due to the Court's determination that
the [defendant] has failed to meet its heavy burden on the issue of whether disclosure will
invade the inspectors' privacy"); Trentadue v. President's Council on Integrity & Efficiency, No.
03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that agency made no showing of
privacy interest, so names of government employees should be released) (Exemptions 6 and
7(C)); Holland v. CIA, No. 91-1233, 1992 WL 233820, at *16 (D.D.C. Aug. 31, 1992) (stating that
information must be disclosed when there is no significant privacy interest, even if public
interest is also de minimis).
13 See Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009) ("'Only where a privacy
interest is implicated does the public interest for which the information will serve become
relevant and require a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d
503, 509 (2d Cir. 1992))); see also NARA v. Favish, 541 U.S. 157, 171 (2004) ("The term
'unwarranted' requires us to balance the family's privacy interest against the public interest
in disclosure.") (Exemption 7(C)); see also Ripskis, 746 F.2d at 3.
14 Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); see
also Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (perceiving
no public interest in disclosure and therefore protecting employees' social security numbers);
Schoenman v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Carter, Fullerton & Hayes LLC v.
FTC, 520 F. Supp. 2d 134, 144-45 (D.D.C. 2007); Seized Prop. Recovery, 502 F. Supp. 2d at 56
("If no public interest is found, then withholding the information is proper, even if the privacy
interest is only modest.") (Exemptions 6 and 7(C)).
15 See DOD v. FLRA, 510 U.S. 487, 497 (1994) ("We must weigh the privacy interest . . . in
nondisclosure . . . against the only relevant public interest in the FOIA balancing analysis –
the extent to which disclosure of the information sought would 'she[d] light on an agency's
performance of its statutory duties' or otherwise let citizens 'know what their government is
up to.'" (quoting Reporters Comm., 489 U.S. at 773); Multi Ag, 515 F.3d at 1228 (noting that if
requested information falls within Exemption 6, the next step in the analysis is to determine
whether "disclosure would constitute a clearly unwarranted invasion of personal privacy . . .
[by] balanc[ing] the privacy interest that would be compromised by disclosure against any
public interest in the requested information"); News-Press, 489 F.3d at 1205 ("In order to affirm
withholding the addresses, we would have to find that the privacy interests against
disclosure are greater than the public interest in disclosure."); see also FOIA Update, Vol. X,
(continued...) 420 Exemption 6
Threshold: Personnel, Medical and Similar Files
Information meets the threshold requirement of Exemption 6 if it falls within the
category of "personnel and medical files and similar files."16 Personnel and medical files are
easily identified, but what constitutes a "similar file" warrants more analysis. In United States
Department of State v. Washington Post Co.,17 the United States Supreme Court held, based
upon a review of the legislative history of the FOIA, that Congress intended the term "similar
files" to be interpreted broadly, rather than narrowly. 18 The Court stated that the protection
of an individual's privacy "surely was not intended to turn upon the label of the file which
contains the damaging information." 19 Rather, the Court made clear that all information that
"applies to a particular individual" meets the threshold requirement for Exemption 6
protection.20 Conversely, the threshold of Exemption 6 has been found not to be met when the
15(...continued)
No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking")
(outlining mechanics of balancing process).
16 5 U.S.C. § 552(b)(6).
17 456 U.S. 595 (1982).
18 Id. at 599-603 (citing H.R. Rep. No. 89-1497, at 11 (1966); S. Rep. No. 89-813, at 9 (1965);
S. Rep. No. 88-1219, at 14 (1964)).
19 Id. at 601 (citing H.R. Rep. No. 89-1497, at 11 (1966)); see Judicial Watch, Inc. v. FDA, 449
F.3d 141, 152 (D.C. Cir. 2006) ("The Supreme Court has read Exemption 6 broadly, concluding
the propriety of an agency's decision to withhold information does not 'turn upon the label of
the file which contains the damaging information.'" (quoting Wash. Post, 456 U.S. at 601)).
20 456 U.S. at 602; see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554
F.3d 1046, 1050 (D.C. Cir. 2009) ("It is undisputed that the requested Medicare records are
personnel, medical, or 'similar files.'"); Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir.
2009) (finding that records applying to detainees whose family members seek protection are
"similar files," explaining that "[t]he phrase 'similar files' has a broad meaning and
encompasses the government's records on an individual which can be identified as applying
to that individual"); Berger v. IRS, 288 F. App'x 829 (3d Cir. Aug. 11, 2008) ("[Revenue Officer's]
time records are a personal recording of the time expended as an employee and therefore can
be identified as applying to her."); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1024 (9th Cir. 2008) (stating that the threshold test of Exemption 6 is satisfied
when government records contain information applying to particular individuals); Pierce v.
U.S. Air Force, 512 F.3d 184, 191 (5th Cir. 2007) ("To qualify as a 'similar file' under Exemption
6 . . . the information need only 'appl[y]' to the individual."), cert. denied, 128 S. Ct. 2092 (2008);
Wood v. FBI, 432 F.3d 78, 86-87 (2d Cir. 2005) (recognizing that personal information about
government investigators appearing in investigative records are "similar files"); Lakin Law
Firm, P.C. v. FTC, 352 F.3d 1122, 1123 (7th Cir. 2003) (finding that consumer complaints filed
with the FTC "clearly fall[] within the exemption"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy,
584 F. Supp. 2d 94, 96 (D.D.C. 2008) (finding that patient admission records clearly qualify as
"similar files"); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d at 144-45 (D.D.C. 2007)
(continued...)
Threshold: Personnel, Medical and Similar Files 421
information cannot be linked to a particular individual,21 or when the information pertains to
federal government employees but is not personal in nature.22
20(...continued)
(concluding that the FTC met the threshold requirement for Exemption 6 protection regarding
the names, addresses, and phone numbers of consumers who filed complaints "[s]ince each
piece of information withheld by defendants applies to specific individuals"); Yonemoto v. VA,
No 06-328, 2007 WL 1310165, at *2 (D. Haw. May 2, 2007) (stating that "[i]ntra-agency emails
often qualify as 'similar files' under Exemption 6," but concluding that records are not "similar
files" when they have "an essentially business nature" or pertain to business relationships),
appeal dismissed and remanded, 305 F. App'x 333 (9th Cir. 2008); Bigwood v. USAID, 484 F.
Supp. 2d 68, 76 (D.D.C. 2007) ("[T]he organizational identity of USAID grantees is information
which the Court concludes in this case 'applies to a particular individual,' and thus the records
requested are 'similar files' which may be protected from disclosure by Exemption 6 of the
FOIA."); Associated Press v. DOJ, No. 06-1758, 2007 WL 737476, at *6 (S.D.N.Y. Mar. 7, 2007)
(finding that petition for reduction in sentence "contains personal information in which
[Requester] has a privacy interest under the 'similar files' requirement of Exemption 6"), order
aff'd, 549 F.3d 62 (2d Cir. 2008) (Exemptions 6 and 7(C)); MacLean v. U.S. Dep't of Army, No.
05-1519, 2007 WL 935604, at *14 (S.D. Cal. Mar. 6, 2007) ("The phrase, 'similar files,' is to be
given a broad meaning, and it may apply even if the files at issue 'are likely to contain much
information about a particular individual that is not intimate.'" (quoting Wash. Post, 456 U.S.
at 598-600)); In Def. of Animals v. HHS, No. 99-3024, 2001 WL 34871354, at *4 (D.D.C. Sept. 28,
2001) (recognizing that names of research foundation members are "similar files"); Hecht v.
USAID, No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) ("We do not think that
Congress meant to limit Exemption 6 to a narrow class of files containing only a discrete kind
of personal information.").
21 See, e.g., Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding
no protection under Exemption 6 for list of drugs ordered for use by some members of large
group); In Def. of Animals v. NIH, 543 F. Supp. 2d 70, 80 (D.D.C. 2008) (concluding that
information related to a primate facility building does not meet the threshold of Exemption 6
because it "is not associated with any particular individual"); Na Iwi O Na Kupuna v. Dalton,
894 F. Supp. 1397, 1413 (D. Haw. 1995) (same for records pertaining to large group of Native
Hawaiian human remains) (reverse FOIA case).
22 Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008) ("Correspondence does not become
personal solely because it identifies government employees."); Leadership Conference on Civil
Rights v. Gonzales, 404 F. Supp. 2d 246, 257 (D.D.C. 2005) (finding that the names and work
telephone numbers of Justice Department paralegals do not meet the threshold for Exemption
6 on the basis that information is not "similar to a 'personnel' or 'medical' file"), motion to amend
denied, 421 F. Supp. 2d 104, 107-10 (D.D.C. 2006), appeal dismissed voluntarily, No. 06-5055,
2006 WL 1214937 (D.C. Cir. Apr. 28, 2006); Gordon v. FBI, 390 F. Supp. 2d 897, 902 (N.D. Cal.
2004) (deciding that names of agency employees are not personal information about those
employees that meets Exemption 6 threshold), summary judgment granted, 388 F. Supp. 2d
1028, 1040-42 (N.D. Cal. 2005) (concluding that Exemption 6 does not apply to the names of
agency's "lower-level" employees, and likewise opining that "[t]he [agency] still has not
demonstrated that an employee's name alone makes a document a personnel, medical or
'similar file'"); Darby v. U.S. Dep't of the Air Force, No. 00-0661, slip op. at 10-11 (D. Nev. Mar.
(continued...) The D.C. Circuit, sitting en banc, subsequently reinforced the Supreme Court's broad
interpretation of this term by holding that a tape recording of the last words of the Space
Shuttle Challenger crew, which "reveal[ed] the sound and inflection of the crew's voices
during the last seconds of their lives . . . contains personal information the release of which
is subject to the balancing of the public gain against the private harm at which it is
purchased."23 Not only did the D.C. Circuit determine that "lexical" and "non-lexical"
information are subject to identical treatment under the FOIA,24 it also concluded that
Exemption 6 is equally applicable to the "author" and the "subject" of a file.25
Once it has been established that information meets the threshold requirement of
Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue
"would constitute a clearly unwarranted invasion of personal privacy" which requires a
balancing of the privacy interest that would be compromised by disclosure against any public
interest in the requested information.26 Thus, the next step in the Exemption 6 analysis is
determining the privacy interests at issue.27
22(...continued)
1, 2002) (rejecting redaction of names in IG report on basis that such documents "are not
'personnel or medical files[,]' nor are they 'similar' to such files"), aff'd on other grounds sub
nom. Darby v. DOD, 74 F. App'x 813 (9th Cir. 2003); Providence Journal Co. v. U.S. Dep't of the
Army, 781 F. Supp. 878, 883 (D.R.I. 1991) (finding investigative report of criminal charges not
to be "similar file," on basis that it was "created in response to specific criminal allegations"
rather than as "regularly compiled administrative record"), modified & aff'd on other grounds,
981 F.2d 552 (1st Cir. 1992); Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 14 (D.D.C. 1990)
(opining that information pertaining to an employee's compliance with agency regulations
regarding outside employment "does not go to personal information . . . [e]ven in view of the
broad interpretation [of Exemption 6] enunciated by the Supreme Court").
23 N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); see Forest
Guardians v. FEMA, 410 F.3d 1214, 1218 (10th Cir. 2005) (finding that electronic Geographic
Information System files containing "specific geographic location" of structures are "similar
files"); Judicial Watch, Inc. v. USPS, No. 03-655, slip op. at 6 (D.D.C. Feb. 23, 2004) (assuming
that audio portions of videotape are "similar files"), appeal dismissed voluntarily, No. 04-5153
(D.C. Cir. Aug. 25, 2004); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003)
(finding that requested videotapes "contain identifiable audio and video images of individual
residents," and concluding that they are "similar files").
24 N.Y. Times Co., 920 F.2d at 1005; see also Webster's II New Riverside University
Dictionary 689 (1994) (defining the term lexical as "[o]f or pertaining to the vocabulary, words,
or morphemes of a language").
25 Id. at 1007-08.
26 See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228 (D.C. Cir. 2008); News-Press v.
DHS, 489 F.3d 1173, 1196-97 (11th Cir. 2007).
27 See FOIA Update, Vol. X, No. 2, at 7 ("Exemption 6 and Exemption 7(C): Step by Step
Decisionmaking").
422 Exemption 6 Privacy Interest 423
Privacy Interest
The relevant inquiry regarding the assessment of privacy interests at issue is whether
public access to the information at issue would violate a viable privacy interest of the subject
of such information.28 It is important to note at the outset that the Supreme Court has declared
that the privacy interest inherent in Exemption 6 "belongs to the individual, not the agency
holding the information."29 In the landmark FOIA decision in United States Department of
Justice v. Reporters Committee for Freedom of the Press, which governs all privacy-protection
Decision making under the FOIA, the Supreme Court stressed that "both the common law and
the literal understandings of privacy encompass the individual's control of information
concerning his or her person." 30 In NARA v. Favish the Court likewise drew upon the common
law to find the principle of "survivor privacy" encompassed within the Act's privacy
exemptions.31 Indeed, in Reporters Committee the Court found a "strong privacy interest" in
the nondisclosure of records of a private citizen's criminal history, "even where the information
may have been at one time public." 32 The Supreme Court has also held that information need
28 See Schell v. HHS, 843 F.2d 933, 938 (6th Cir. 1988); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir.
1984).
29 See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989)
(emphasizing that privacy interest belongs to individual, not agency holding information
pertaining to individual); Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v. FAA, 218 F. App'x
479, 482 (6th Cir. 2007) ("[S]ome courts have concluded that where personal privacy interests
are implicated, only the individual who owns such interest may validly waive it."); Sherman
v. U.S. Dep't of the Army, 244 F.3d 357, 363-64 (5th Cir. 2001) (protecting social security
numbers of soldiers even though Army publicly disclosed SSNs in some circumstances,
because individuals rather than government hold privacy interest in that information); Amuso
v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("The privacy interest at stake belongs to the
individual, not the agency."); Cozen O'Connor v. Dep't of Treasury, 570 F. Supp. 2d 749, 781
(E.D. Pa. 2008) ("The focus of the exemption is the individual's interest, not the government's.").
30 489 U.S. at 763 (holding "rap sheets" are entitled to protection under Exemption 7(C) and
setting forth five guiding principles that govern the process by which determinations are
made under both Exemptions 6 and 7(C)).
31 541 U.S. 157, 165-70 (2004) ([T]he concept of personal privacy . . . is not some limited or
'cramped notion' of that idea.") (Exemption 7(C)); see also FOIA Post, "Supreme Court Rules for
'Survivor Privacy' in Favish" (posted 4/9/04) (highlighting breadth of privacy protection
principles in Supreme Court's decision).
32 489 U.S. at 762, 764, 767, 780 (establishing a "practical obscurity" standard, observing that
if such items of information actually "were 'freely available,' there would be no reason to invoke
the FOIA to obtain access to" them); see also DOD v. FLRA, 510 U.S. 487, 500 (1994) (finding
privacy interest in federal employees' home addresses even though they "often are publicly
available through sources such as telephone directories and voter registration lists"); FOIA
Update, Vol. X, No. 2, at 4 ("OIP Guidance: Privacy Protection Under the Supreme Court's
Reporters Committee Decision"). 424 Exemption 6
not be intimate or embarrassing to qualify for Exemption 6 protection.33 Generally, privacy
interests cognizable under the FOIA are found to exist in such personally identifying
information as a person's name, address, phone number, date of birth, criminal history,
medical history, and social security number.34
In some circumstances a FOIA request can be narrowly targeted so that by its very
terms it is limited to privacy-sensitive information pertaining to an identified or identifiable
individual. In such circumstances, redaction would not be adequate to protect the personal
privacy interests at risk,35 and an agency may have to invoke the "Glomar" response, i.e.,
33 See Dep't of State v. Wash. Post Co., 456 U.S. 595, 600 (1982); Horowitz v. Peace Corps,
428 F.3d 271, 279 (D.C. Cir. 2005) ("Even seemingly innocuous information can be enough to
trigger the protections of Exemption 6."); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879
F.2d 873, 875 (D.C. Cir. 1989) [hereinafter NARFE]; People for the Am. Way Found. v. Nat'l Park
Serv., 503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("The privacy interest in nondisclosure
encompasses an individual's control of personal information and is not limited to that of an
embarrassing or intimate nature."); Knight v. NASA, No. 2:04-2054, 2006 WL 3780901, at *5
(E.D. Cal. Dec. 21, 2006) ("Information need not be intimate or embarrassing to qualify for
exemption under subdivision (b)(6)."); Appleton v. FDA, 451 F. Supp. 2d 129, 145 (D.D.C. 2006)
("Individuals have a privacy interest in personal information even if it is not of an embarrassing
or intimate nature.").
34 See Wash. Post Co., 456 U.S. at 600 (finding that "[i]nformation such as place of birth, date
of birth, date of marriage, employment history, and comparable data is not normally regarded
as highly personal, and yet . . . such information . . . would be exempt from any disclosure that
would constitute a clearly unwarranted invasion of personal privacy"); Associated Press v.
DOJ, 549 F.3d 62, 65 (2d Cir. 2008) ("Personal information, including a citizen's name, address,
and criminal history, has been found to implicate a privacy interest cognizable under the FOIA
exemptions.") (Exemptions 6 and 7(C)); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584 F. Supp.
2d 94, 96 (D.D.C. 2008) ("Records . . . indicating that individuals sought medical treatment at
a hospital are particularly sensitive."); Yelder v. DOD, 577 F. Supp. 2d 342, 346 (D.D.C. 2008)
(noting that information such as names, addresses, and other personally identifying
information creates a palpable threat to privacy); People for the Am. Way Found., 503 F. Supp.
2d at 304, 306 (stating that "[f]ederal courts have previously recognized a privacy interest in
a person's name and address" and concluding that "[g]enerally, there is a stronger case to be
made for the applicability of Exemption 6 to phone numbers and addresses"); Seized Prop.
Recovery, Corp. v. U.S. Customs and Border Prot., 502 F. Supp. 2d 50, 58 (D.D.C. 2007) (finding
that individuals have a privacy interest in the nondisclosure of their names and addresses
when release "would automatically associate the individuals" with seizures conducted by
Customs and the information is linked to financial information) (Exemptions 6 and 7(C)).
35 See, e.g., Hunt v. FBI, 972 F.2d 286, 288 (9th Cir. 1992) (holding that "public availability"
of an accused FBI agent's name does not defeat privacy protection and "would make
redactions of [the agent's name in] the file a pointless exercise"); MacLean v. DOD, No. 04
2425, slip op. at 18 (S.D. Cal. June 2, 2005) (pointing out that deletion of identity of named
subject of request from professional responsibility file "would be pointless") (Exemptions 6 and
7(C)); Buckley v. Schaul, No. 03-03233, slip op. at 9 (W.D. Wash. Mar. 8, 2004) (finding that
even with redactions, the "disclosure of investigative files coupled with the public availability
(continued...) Privacy Interest 425
neither confirm nor deny the existence of any responsive records.36 (For a detailed explanation
of the Glomar response and its use in protecting privacy interests in law enforcement records,
see the discussion under Exemption 7(C), below.)
Initially, it must be determined "whether disclosure of the files 'would compromise a
substantial, as opposed to de minimis, privacy interest,' because 'if no significant privacy
interest is implicated . . . FOIA demands disclosure.'"37 The Court of Appeals for the District
of Columbia Circuit has explained that, in the FOIA context, when assessing the weight of a
protectible privacy interest, "[a] substantial privacy interest is anything greater than a de
minimis privacy interest." 38 When a substantial privacy interest is found, the inquiry under
the privacy exemptions is not finished, it is only advanced to "'address the question whether
35(...continued)
of Plaintiff's FOIA request naming [regional counsel]" would not adequately protect privacy
interests) (Exemptions 6 and 7(C)); Claudio v. SSA, No. H-98-1911, 2000 WL 33379041, at *8
(S.D. Tex. May 24, 2000) (observing that redaction of documents concerning named subject
"would prove meaningless"); Mueller v. U.S. Dep't of the Air Force, 63 F. Supp. 2d 738, 744 (E.D.
Va. 1999) (noting that when requested documents relate to a specific individual, "deleting
[her] name from the disclosed documents, when it is known that she was the subject of the
investigation, would be pointless"); Chin v. U.S. Dep't of the Air Force, No. 97-2176, slip op. at
5 (W.D. La. June 24, 1999) (observing that deletion of identifying information "fails to protect
the identity of [the individual] who is named in the FOIA request"), aff'd per curiam, No. 99
31237 (5th Cir. June 15, 2000); Cotton v. Adams, 798 F. Supp. 22, 27 (D.D.C. 1992) (determining
that releasing any portion of the documents would "abrogate the privacy interests" when the
request is for documents pertaining to two named individuals); Schonberger v. Nat'l Transp.
Safety Bd., 508 F. Supp. 941, 945 (D.D.C. 1981) (stating that no segregation was possible when
request was for one employee's file), aff'd, 672 F.2d 896 (D.C. Cir. 1981) (unpublished table
decision).
36 See Claudio, 2000 WL 33379041, at *8-9 (affirming agency's refusal to confirm or deny
existence of any record reflecting any investigation of administrative law judge) (Exemption
6).
37 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008) (quoting NARFE, 879
F.2d at 874); see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d
1046, 1050 (D.C. Cir. 2009) ("[W]e must determine whether 'disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest.'" (quoting NARFE, 879 F.2d at 874));
Associated Press v. DOD, 554 F.3d 274, 285 (2d Cir. 2009) ("Thus, 'once a more than de minimis
privacy interest is implicated the competing interests at stake must be balanced in order to
decide whether disclosure is permitted under FOIA.'" (quoting FLRA v. VA, 958 F.2d 503, 510
(2d Cir. 1992))).
38 Multi Ag, 515 F.3d at 1229-30; see, e.g., Barnard v. DHS, 598 F. Supp. 2d 1, 11 (D.D.C.
2009); Schoenman v. FBI, 576 F. Supp. 2d 3, 9 (D.D.C. 2008); Unidad Latina En Accion v. DHS,
253 F.R.D. 44, 48 (D. Conn. 2008); Schoenman v. FBI, 573 F. Supp. 2d 119, 148 (D.D.C. 2008);
Schoenman v. FBI, 575 F. Supp. 2d 136, 160 (D.D.C. 2008). 426 Exemption 6
the public interest in disclosure outweighs the individual privacy concerns.'"39 Thus, as the
D.C. Circuit has held, "a privacy interest may be substantial -- more than de minimis -- and yet
be insufficient to overcome the public interest in disclosure."40
The D.C. Circuit has also emphasized the practical analytical point that under the
FOIA's privacy-protection exemptions, "[t]he threat to privacy . . . need not be patent or
obvious to be relevant." 41 At the same time, courts have found that the threat to privacy must
be real rather than speculative.42 In National Ass'n of Retired Federal Employees v. Horner
[hereinafter NARFE], the D.C. Circuit explained that the "relevant point" of its prior holding in
Arieff v. United States Department of the Navy was that "mere speculation" of an invasion of
privacy "is not itself part of the invasion of privacy contemplated by Exemption 6."43 The
39 Multi Ag, 515 F.3d at 1230 (quoting Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26,
35 (D.C. Cir. 2002)); see, e.g., Consumers' Checkbook, 554 F.3d at 1050 ("If a substantial privacy
interest is at stake, then we must balance the privacy interest in nondisclosure against the
public interest."); Associated Press v. DOJ, 549 F.3d at 66 ("Notwithstanding a document's
private nature, FOIA may nevertheless require disclosure if the requester can show that
revelation of the contents of the requested document would serve the public interest."); Scales
v. EOUSA, 594 F. Supp. 2d 87, 90 (D.D.C. 2009) ("Given the significant individual privacy
interest, disclosure of 7(C) material is warranted only when the individual's interest in privacy
is outweighed by the public's interest in disclosure.") (Exemption 7(C)).
40 Multi Ag, 515 F.3d at 1230-33 (finding that the significant public interest in disclosure of
the databases outweighs the "greater than de minimis" privacy interest of individual farmers).
41 Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808, 809 (D.C. Cir.
1978) (per curiam) (ruling that district court improperly refused to look beyond face of
document at issue (i.e., to proffered in camera explanation of harm), which led it to fail to
recognize underlying sensitivity).
42 See Dep't of the Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976) ("The legislative history
is clear that Exemption 6 was directed at threats to privacy interests more palpable than mere
possibilities."); ACLU v. DOD, 543 F.3d 59, 85-86 (2d Cir. 2008) ("Even accepting [defendants']
argument that it may be 'possible' to identify the detainees in spite of the district court's
redactions, or that there remains a 'chance' that the detainees could identify themselves . . .
such speculation does not establish a privacy interest that surpasses a de minimis level for
the purposes of a FOIA inquiry.") (Exemptions 6 and 7(C)), application to extend time to file
petition for cert. granted, No. 08A1068 (J. Ginsburg, May 29, 2009); Carter v. U.S. Dep't of
Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987) (stating that "[w]ithholding information to
prevent speculative harm" is contrary to the FOIA's pro-disclosure policy); Arieff v. U.S. Dep't
of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding that Exemption 6 did not apply
when there was only a "'mere possibility'" that the medical condition of a particular individual
would be disclosed by releasing a list of pharmaceuticals supplied to a congressional doctor
(quoting Rose, 425 U.S. at 380 n.19)); Cawthon v. DOJ, No. 05-0567, 2006 WL 581250, at *3
(D.D.C. Mar. 9, 2006) ("To justify its exemption 6 withholdings, the defendant must show that
the threat to employees' privacy is real rather than speculative.").
43 879 F.2d at 878 (citing Arieff, 712 F.2d at 1468); see also ACLU v. DOD, 543 F.3d at 86
(continued...)
Privacy Interest 427
NARFE court went on to explain that "[f]or the Exemption 6 balance to be implicated, there
must, of course, be a causal relationship between the disclosure and the threatened invasion
of privacy."44
In Favish, the Supreme Court unanimously found that the surviving family members of
a former Deputy White House Counsel had a protectible privacy interest in his death-scene
photographs, based in part on the family's fears of "intense scrutiny by the media."45 Pointing
out that the surviving relatives invoked their own "right and interest to personal privacy,"46 the
Court held "that FOIA recognizes surviving family members' right to personal privacy with
respect to their close relative's death-scene images."47 Relying upon case law and cultural
traditions, the Court concentrated on "the right of family members to direct and control
disposition of the body of the deceased" and noted the right of family members "to limit
43(...continued)
(stating that "because the district court has redacted the Army photos to remove all
identifying features, there is no cognizable privacy interest at issue in the release of the Army
photos"); Hall v. DOJ, 552 F. Supp. 2d 23, 30 (D.D.C. 2008) (finding that DOJ failed to
demonstrate that there is a real threat to employees' privacy, concluding that "DOJ merely
asserts, in vague and conclusory fashion, that the redacted information relates to a small
group of employees and that release of the redacted information will lead to identification and
harassment"); United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 47 (D.D.C. 2008) ("A 'bare
conclusory assessment' that public disclosure of an employee's name would constitute an
invasion of personal privacy is insufficient to support the existence of a privacy interest.");
Finkel v. Dep't of Labor, No. 05-5525, 2007 WL 1963163, at *9 (D.N.J. June 29, 2007)
(concluding that defendant failed to meet its burden of showing that release of inspectors'
"coded ID numbers" would constitute a clearly unwarranted invasion of privacy because
defendant "has 'established no more than a mere possibility that the medical condition of a
particular individual might be disclosed - which the Supreme Court has told us is not enough'"
(quoting Arieff, 712 F.2d at 1467)); Fortson v. Harvey, 407 F. Supp. 2d 13, 17 (D.D.C. 2005)
(deciding that potential harm to witnesses of unfavorable personnel evaluations and
workplace harassment was "pure speculation"); Dayton Newspapers, Inc. v. Dep't of the Air
Force, 107 F. Supp. 2d 912, 919 (S.D. Ohio 1999) (declining to protect medical malpractice
settlement figures based upon "mere possibility that factual information might be pieced
together to supply 'missing link' and lead to personal identification" of claimants); Chi. Tribune
Co. v. HHS, No. 95-3917, 1997 WL 1137641, at *10-11 (N.D. Ill. Feb. 26, 1997) (magistrate's
recommendation) (finding "speculative at best" agency's argument that release of breast
cancer patient data forms that identify patients only by nine-digit encoded "Study Numbers"
could result in identification of individual patients), adopted, (N.D. Ill. Mar. 28, 1997).
44 879 F.2d at 878.
45 541 U.S. at 167.
46 Id. at 166.
47 Id. at 170. 428 Exemption 6
attempts to exploit pictures of the deceased family member's remains for public purposes."48
Analyzing what recipients of the death scene photos may do with them, the Court found that
the surviving family members had a protectible privacy interest in seeking to limit the
attempts by the requester, as well as the public and media, to exploit the deceased's photos.49
As the D.C. Circuit has held, "[w]here there is a substantial probability that disclosure will
cause an interference with personal privacy, it matters not that there may be two or three
links in the causal chain."50 One court has pragmatically observed that to distinguish between
48 Id. at 168.
49 Id. at 167.
50 NARFE, 879 F.2d at 878; see, e.g., Favish, 541 U.S. at 167-70 (specifically taking into
account "the consequences" of FOIA disclosure, including "public exploitation" of the records
by either the requester or others); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1026 (9th Cir. 2008) (finding that "the public association of the employees with
[the Cramer Fire] would subject them to the risk of embarrassment in their official capacities
and in their personal lives"); Moore v. Bush, 601 F. Supp. 2d 2, 14 (D.D.C. 2009) (concluding
that release of name and phone number of an FBI support employee and the name of a Special
Agent "could subject the Agent and employee to harassment") (Exemptions 6 and 7(C)); Hall,
552 F. Supp. 2d at 30 ("Pursuant to Exemption 6, individuals have a privacy interest in avoiding
disclosure of identifying information if disclosure would subject them to harassment."); Reilly
v. DOE, No. 07-995, 2007 WL 4548300, at *6 (N.D. Ill. Dec. 18, 2007) ("If the names of the [Merit
Review Committee] members were disclosed to the public, they would be subject to
harassment from disgruntled applicants whose proposals were denied."); George v. IRS, No.
05-955, 2007 WL 1450309, at *11 (N.D. Cal. May 14, 2007) ("IRS employees have a strong right
to privacy in order to fulfill their obligations without fear that taxpayers will attempt to harass
or contact employees directly instead of using the administrative and judicial processes for
appeal."); Bigwood v. USAID, 484 F. Supp. 2d 68, 77 (D.D.C. 2007) ("Defendant has presented
declarations that detail the potential harm to the employees if the identities of the grantee
organizations at issue in this case are released."); Long v. OPM, No. 05-1522, 2007 WL 2903924,
at *15 (N.D.N.Y. Sept. 30, 2007) ("[W]hether the disclosure of names of government employees
threatens a significant privacy interest depends on the consequences likely to ensue from
disclosure."); O'Keefe v. DOD, 463 F. Supp. 2d 317, 324 (E.D.N.Y. 2006) ("Government
employees, and specifically law enforcement personnel, have a significant privacy interest in
their identities, as the release of their identities may subject them to embarrassment and
harassment.") (Exemption 7(C)); Judicial Watch, Inc. v. Dep't of the Army, 402 F. Supp. 2d 241,
251 (D.D.C. 2005) (granting defendant's motion for summary judgment as to information
withheld pursuant to Exemption 6; finding that it is "likely" that the documents would be
published on the Internet and that media reporters would seek out employees, and stating
"[t]his contact is the very type of privacy invasion that Exemption 6 is designed to prevent").
But see U.S. Dep't of State v. Ray, 502 U.S. 164, 179-82 (1991) (Scalia, J., concurring in part)
(suggesting that "derivative" privacy harm should not be relied upon in evaluating privacy
interests); Associated Press v. DOD, 410 F. Supp. 2d 147, 151 (D.D.C. 2006) (suggesting that
"derivative" harms might not be cognizable under Exemption 6, based on Justice Scalia's
concurring opinion in Ray); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003, 2004 WL
3426434, at *16-17 (D.N.M. Feb. 28, 2004) (deciding that agency did not meet its burden of
establishing that names of financial institutions and amounts of individual loans in lienholder
(continued...) Privacy Interest 429
the initial disclosure and unwanted intrusions as a result of that disclosure would be "to honor
form over substance."51
Along this line of reasoning, the D.C. Circuit in Multi Ag Media LLC v. USDA concluded
that the disclosure of two databases containing information on crops and field acreage, and
farm data on a digitized aerial photograph, would compromise a greater than de minimis
privacy interest of individual farmers.52 Although "not persuaded that the privacy interest that
may exist is particularly strong," the court found that "[t]elling the public how many crops are
on how much land or letting the public look at photographs of farmland with accompanying
data will in some cases allow for an inference to be drawn about the financial situation of an
individual farmer."53
Similarly, the Court of Appeals for the Tenth Circuit, in Forest Guardians v. FEMA,
decided that the release of "electronic mapping files" would invade the privacy interest of
homeowners.54 The files contained the specific locations of insured structures that "could
easily lead to the discovery of an individual's name and home address," as well as "unwanted
and unsolicited mail, if not more."55
In some instances, the disclosure of information might involve no invasion of privacy
because, fundamentally, the information is of such a nature that no expectation of privacy
exists.56 For example, FOIA requesters (except those making requests for records on
50(...continued)
agreements could be used to trace individual permittees); Dayton Newspapers, Inc. v. VA, 257
F. Supp. 2d 988, 1001-05 (S.D. Ohio 2003) (rejecting argument based upon agency's concern
that names of judges and attorneys could be used to search through databases to identify
claimants and thereby invade privacy of claimants).
51 Hudson v. Dep't of the Army, No. 86-1114, 1987 WL 46755, at *3 (D.D.C. Jan. 29, 1987)
(protecting personal identifying information on the basis that its disclosure under the FOIA
could ultimately lead to physical harm), aff'd, 926 F.2d 1215 (D.C. Cir. 1991) (unpublished table
decision); see also, e.g., Hemenway v. Hughes, 601 F. Supp. 1002, 1006-07 (D.D.C. 1985)
(same).
52 515 F.3d at 1230.
53 Id. (concluding, ultimately, that despite this privacy interest, information should be
disclosed due to strong public interest); see, e.g., Seized Prop. Recovery., 502 F. Supp. 2d at
58 ("[I]ndividuals have a privacy interest in the nondisclosure of their names and addresses
when linked to financial information, especially when this information could be used for
solicitation purposes.") (Exemption 6 and 7(C)).
54 410 F.3d 1214, 1220-21 (10th Cir. 2005).
55 Id. (finding that additional information, such as individual's decision to buy flood
insurance, could be revealed through disclosure of requested files and thus also invade
privacy).
56 See, e.g., People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere
(continued...) 430 Exemption 6
themselves) do not ordinarily expect that their names will be kept private; therefore, release
of their names would not cause even the minimal invasion of privacy necessary to trigger the
balancing test.57
Similarly, civilian federal employees who are not involved in law enforcement generally
have no expectation of privacy regarding their names, titles, grades, salaries, and duty
stations as employees58 or regarding the parts of their successful employment applications
56(...continued)
identity of individuals who voluntarily submitted comments regarding the Lincoln video does
not raise the kind of privacy concerns protected by Exemption 6."); Fuller v. CIA, No. 04-253,
2007 WL 666586, at *4 (D.D.C. Feb. 28, 2007) (finding that information reflecting only
professional and business judgments and relationships "cannot fairly be characterized as
personal information that exemption (b)(6) was meant to protect"); Alliance for the Wild
Rockies v. Dep't of the Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999) (finding that commenters
to proposed rulemaking could have no expectation of privacy when agency made clear that
their identities would not be concealed).
57 See Holland v. CIA, No. 91-1233, 1992 WL 233820, at *15-16 (D.D.C. Aug. 31, 1992)
(holding that researcher who sought assistance of presidential advisor in obtaining CIA files
he had requested is comparable to FOIA requester whose identity is not protected by
Exemption 6); Martinez v. FBI, No. 82-1547, slip op. at 7 (D.D.C. Dec. 19, 1985) (denying
protection for identities of news reporters seeking information concerning criminal
investigation) (Exemption 7(C)); see also FOIA Update, Vol. VI, No. 1, at 6 (advising agencies
that the identities of first-party requesters under the Privacy Act of 1974, 5 U.S.C. § 552a
(2006), should be protected because, unlike under the FOIA, an expectation of privacy can
fairly be inferred from the personal nature of the records involved in those requests). But see
Silets v. DOJ, 945 F.2d 227, 230 (7th Cir. 1991) (en banc) (protecting name of high school
student who requested information about wiretaps on Jimmy Hoffa).
58 See OPM Regulation, 5 C.F.R. § 293.311 (2009) (specifying that certain information
contained in federal employee personnel files is available to public); see also FLRA v. U.S.
Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (noting that performance awards
"have traditionally been subject to disclosure"); Core v. USPS, 730 F.2d 946, 948 (4th Cir. 1984)
(finding no substantial invasion of privacy in information identifying successful federal job
applicants); Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 257
(D.D.C. 2005) (noting that Justice Department paralegals' names and work numbers "are
already publicly available from [OPM]"), appeal dismissed voluntarily, No. 06-5055, 2006 WL
1214937 (D.C. Cir. Apr. 28, 2006); Lawyers Comm. for Human Rights v. INS, 721 F. Supp. 552,
569 (S.D.N.Y. 1989) (stating that "disclosure [of names of State Department's officers and staff
members involved in highly publicized case] merely establishes State [Department]
employees' professional relationships or associates these employees with agency business");
Nat'l W. Life Ins. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (discerning no
expectation of privacy in names and duty stations of Postal Service employees); FOIA Update,
Vol. III, No. 4, at 3 ("Privacy Protection Considerations") (discussing extent to which privacy
of federal employees can be protected); cf. Tomscha v. GSA, No. 03-6755, 2004 WL 1234043,
at *4-5 (S.D.N.Y. June 3, 2004) (deciding without discussion that amount of performance
award was properly redacted when agency showed that there could be "mathematical
(continued...) Privacy Interest 431
that show their qualifications for their positions.59 However, federal civilian employees do
have a protectible privacy interest in purely personal details that do not shed light on agency
functions. 60 Indeed, courts generally have recognized the sensitivity of information contained
58(...continued)
linkage" between award and performance evaluation), aff'd, 158 F. App'x 329, 329 (2d Cir.
2005) (agreeing with the district court's finding that "the release of the justifications for [lowranking
GSA employee's] awards would constitute more than a de minimis invasion of
privacy"). But see Rogers v. Davis, No. 08-177, 2009 WL 213034, at *3 (E.D. Mo. Jan. 28, 2009)
("Government employees have a privacy interest in their names and phone numbers,
especially when associated with a complaint of misconduct."); United Am. Fin., Inc., 531 F.
Supp. 2d at 42-43 (concluding that Exemption 6 protects against disclosure of names of USPS
employees regarding information pertaining to their financial choices).
59 See Habeas Corpus Resource Ctr. v. DOJ, No. 08-2649, 2008 WL 5000224, at *4 (N.D. Cal.
Nov. 21, 2008) (ordering release of email chains regarding the decision to hire a DOJ attorney
because "[p]laintiff's interest - and the public's interest - in determining whether [attorney's]
hiring was improper is sufficient to outweigh any minimal privacy interest [the attorney] may
have in keeping these opinions from the public"); Cowdery, Ecker & Murphy, LLC v. Dep't of
Interior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007) ("Because exemption 6 seeks to protect
government employees from unwarranted invasions of privacy, it makes sense that FOIA
should protect an employee's personal information, but not information related to job
function."); Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that the
agency had "released information pertaining to the successful candidates' educational and
professional qualifications, including letters of commendation and awards, as well as their
prior work history, including federal positions, grades, salaries, and duty stations"); Samble
v. U.S. Dep't of Commerce, No. 1:92-225, slip op. at 11 (S.D. Ga. Sept. 22, 1994) (requiring
disclosure of successful job applicant's "undergraduate grades; private sector performance
awards; foreign language abilities; and his answers to questions concerning prior firings, etc.,
convictions, delinquencies on federal debt, and pending charges against him"); Associated
Gen. Contractors, Inc. v. EPA, 488 F. Supp. 861, 863 (D. Nev. 1980) (education, former
employment, academic achievements, and employee qualifications). But see People for
Ethical Treatment of Animals v. USDA, No. 06-930, 2007 WL 1720136, at *4 (D.D.C. June 11,
2007) ("'[A]n employee has at least a minimal privacy interest in his or her employment history
and job performance evaluations. That privacy interest arises in part from the presumed
embarrassment or stigma wrought by negative disclosures.'" (quoting Stern v. FBI, 737 F.2d
84, 91 (D.C. Cir. 1984))) (Exemption 7(C)).
60 See, e.g., DOD v. FLRA, 510 U.S. at 500 (federal employees' home addresses); Kidd v. DOJ,
362 F. Supp. 2d 291, 296-97 (D.D.C. 2005) (home telephone number); Barvick, 941 F. Supp. at
1020-21 (personal information such as home addresses and telephone numbers, social security
numbers, dates of birth, insurance and retirement information, reasons for leaving prior
employment, and performance appraisals); Stabasefski v. United States, 919 F. Supp. 1570,
1575 (M.D. Ga. 1996) (names of FAA employees who received Hurricane Andrew assistance
payments); Plain Dealer Publ'g Co. v. U.S. Dep't of Labor, 471 F. Supp. 1023, 1028-30 (D.D.C.
1979) (medical, personnel, and related documents of employees filing claims under Federal
Employees Compensation Act); Info. Acquisition Corp. v. DOJ, 444 F. Supp. 458, 463-64 (D.D.C.
1978) ("core" personal information such as marital status and college grades). But see Wash.
(continued...) 432 Exemption 6
in personnel-related files and have accorded protection to the personal details of a federal
employee's service.61 In addition, the identities of persons who apply but are not selected for
federal government employment may be protected.62 Even suggestions submitted to an
60(...continued)
Post Co. v. HHS, 690 F.2d 252, 258-65 (D.C. Cir. 1982) (holding personal financial information
required for appointment as HHS scientific consultant not exempt when balanced against
need for oversight of awarding of government grants); Trupei v. DEA, No. 04-1481, slip op. at
3-5 (D.D.C. Sept. 27, 2005) (ordering disclosure of signature where name of retired DEA agent
was already released, because "speculative" possibility of misuse of signature did not
establish cognizable privacy interest); Husek v. IRS, No. 90-CV-923, 1991 U.S. Dist. LEXIS
20971, at *1 (N.D.N.Y. Aug. 16, 1991) (holding citizenship, date of birth, educational
background, and veteran's preference of federal employees not exempt), aff'd, 956 F.2d 1161
(2d Cir. 1992) (unpublished table decision).
61 See, e.g., Ripskis, 746 F.2d at 3-4 (names and identifying data contained on evaluation
forms of HUD employees who received outstanding performance ratings); Warren v. Soc. Sec.
Admin., No. 98-CV-0116E, 2000 WL 1209383, at *4 (W.D.N.Y. Aug. 22, 2000) (award
nomination forms for specific employees), aff'd, 10 F. App'x 20 (2d Cir. 2001); Rothman v.
USDA, No. 94-8151, slip op. at 6 (C.D. Cal. June 17, 1996) (settlement agreement related to
charge of employment discrimination that "could conceivably lead to embarrassment or
friction with fellow employees or supervisors"); Resendez v. Runyon, No. 94-434F, slip op. at
6-7 (W.D. Tex. Aug. 11, 1995) (names of applicants for supervisory training who have not yet
been accepted or rejected); McLeod v. U.S. Coast Guard, No. 94-1924, slip op. at 8-10 (D.D.C.
July 25, 1995) (Coast Guard officer's evaluation report), summary affirmance granted, No. 96
5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997); Putnam v. DOJ, 873 F. Supp. 705, 712-13
(D.D.C. 1995) (names of FBI employees mentioned in "circumstances outside of their official
duties," such as attending training classes and as job applicants); Ferri v. DOJ, 573 F. Supp.
852, 862-63 (W.D. Pa. 1983) (FBI background investigation of Assistant United States
Attorney); Dubin v. Dep't of the Treasury, 555 F. Supp. 408, 412 (N.D. Ga. 1981) (studies of
supervisors' performance and recommendations for performance awards), aff'd, 697 F.2d 1093
(11th Cir. 1983) (unpublished table decision); see also FLRA v. U.S. Dep't of Commerce, 962
F.2d at 1060 (distinguishing personnel "ratings," which traditionally have not been disclosed,
from "performance awards," which ordinarily are disclosed); cf. Prof'l Review Org., Inc. v. HHS,
607 F. Supp. 423, 427 (D.D.C. 1985) (résumé data of proposed staff of government contract
bidder).
62 See Core, 730 F.2d at 948-49 (protecting identities and qualifications of unsuccessful
applicants for federal employment); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.
Supp. 2d 146, 177 (D.D.C. 2004) (holding that résumé of individual interested in project that
never "got out of the embryonic stages" was properly withheld); Warren, 2000 WL 1209383,
at *4 (protecting identities of unsuccessful job applicants); Judicial Watch, Inc. v. Exp.-Imp.
Bank, 108 F. Supp. 2d 19, 38 (D.D.C. 2000) (protecting résumés of individuals whose
applications for insurance were withdrawn or denied); Judicial Watch, Inc. v. Comm'n on U.S.
Pac. Trade & Inv. Policy, No. 97-0099, 1999 WL 33944413, at *11-12 (D.D.C. Sept. 30, 1999)
(protecting identities of individuals considered for but not appointed to Commission);
Rothman, No. 94-8151, slip op. at 8-9 (C.D. Cal. June 17, 1996) ("Disclosure of information in the
applications of persons who failed to get a job may 'embarrass or harm' them."); Barvick, 941
(continued...) Privacy Interest 433
Employee Suggestion Program have been withheld to protect employees with whom the
suggestions are identifiable from the embarrassment that might occur from disclosure.63
Federal employees involved in law enforcement, as well as military personnel and
Internal Revenue Service employees, do possess, by virtue of the nature of their work,
protectible privacy interests in their identities and work addresses.64 In light of this privacy
62(...continued)
F. Supp. at 1021-22 (protecting all information about unsuccessful federal job applicants
because any information about members of "select group" that applies for such jobs could
identify them); Voinche v. FBI, 940 F. Supp. 323, 329-30 (D.D.C. 1996) (protecting identities of
possible candidates for Supreme Court vacancies), aff'd per curiam, No. 96-5304, 1997 WL
411685 (D.C. Cir. June 19, 1997); Putnam, 873 F. Supp. at 712-13 (protecting identities of FBI
personnel who were job candidates); Holland,1992 WL 233820, at *13-15 (protecting identity
of person not selected as CIA general counsel).
63 See Matthews v. USPS, No. 92-1208-CV-W-8, slip op. at 5 (W.D. Mo. Apr. 15, 1994).
64 See Lahr v. NTSB, No. 06-56717, 2009 WL 1740752, at *9-10 (9th Cir. June 22, 2009)
(reversing district court and holding that FBI agents have cognizable privacy interest in
withholding their names because release of FBI agents' identity would most likely subject
agents "to unwanted contact by the media and others, including [plaintiff], who are skeptical
of the government's conclusion" in investigation of crash of TWA Flight 800); Wood v. FBI, 432
F.3d 78, 87-89 (2d Cir. 2005) (protecting investigative personnel of FBI's Office of Professional
Responsibility); Judicial Watch, Inc. v. United States, 84 F. App'x 335, 338-39 (4th Cir. 2004)
(protecting names of lower-level clerical workers at IRS); New England Apple Council v.
Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984) (protecting identities of nonsupervisory Inspector
General investigators who participated in grand jury investigation of requester) (Exemption
7(C)); Moore, 601 F. Supp. 2d at 14 (protecting the name and phone number of an FBI support
employee and the name of a Special Agent because release "could subject the Agent and
employee to harassment") (Exemptions 6 and 7(C)); Cal-Trim Inc. v. IRS, 484 F. Supp. 2d 1021,
1027 (D. Ariz. 2007) (protecting names of lower-level IRS employees in internal IRS
correspondence so as not to expose them to unreasonable annoyance or harassment)
(Exemptions 6 and 7(C)); Clemmons v. U.S. Army Crime Records Ctr., No. 05-02353, 2007 WL
1020827, at *6 (D.D.C. Mar. 30, 2007) (withholding the identities of U.S. Army Criminal
Investigation Division special agents and military police (Exemptions 6 and 7(C)); Elec.
Privacy Info. Ctr. v. DHS, No. 04-1625, 2006 U.S. Dist. LEXIS 94615, at *30 (D.D.C. Dec. 22, 2006)
(protecting names of employees from United States Customs and Border Protection and DHS
involved in anti-terrorism efforts); Van Mechelen v. U.S. Dep't of the Interior, No. 05-5393, 2005
WL 3007121, at *4-5 (W.D. Wash. Nov. 9, 2005) (protecting identifying information of lowerlevel
Office of Inspector General and Bureau of Indian Affairs employees in report of
investigation) (Exemptions 6 and 7(C)), aff'd, 230 F. App'x 705 (9th Cir. 2007); Judicial Watch,
Inc. v. FDA, 407 F. Supp. 2d 70, 76-77 (D.D.C. 2005) (finding that HHS employees named in
records concerning abortion drug testing of mifepristone (also referred to as Mifeprex or RU
486) were properly protected pursuant to Exemption 6 in order to ensure employees' safety),
aff'd in pertinent part, 449 F.3d 141, 152-54 (D.C. Cir. 2006); Davy v. CIA, 357 F. Supp. 2d 76,
87-88 (D.D.C. 2004) (protecting CIA employee names). But see Stonehill v. IRS, 534 F. Supp.
2d 1, 12 (D.D.C. 2008) (ordering release of an IRS agent's name because defendant did not
(continued...) 434 Exemption 6
interest, the Department of Defense now regularly withholds personally identifying
information about all military and civilian employees with respect to whom disclosure would
"raise security or privacy concerns."65 For law enforcement personnel in particular, these
privacy interests are generally protected under Exemption 7(C).66 (For a more detailed
64(...continued)
provide satisfactory response to plaintiff's argument that names of other IRS agents involved
in underlying case had been released in thousands of documents and there was no reason
identified by defendant as to why redacted agent's name should be withheld) (Exemptions
6 and 7(C)).
65 Department of Defense Director for Administration and Management Memorandum for
DOD FOIA Offices 1-2 (Nov. 9, 2001), available at www.defenselink.mil/pubs/ foi/withhold.pdf
(noting that certain personnel's names can be released due to "the nature of their positions
and duties," including public affairs officers and flag officers); see also Schoenman, 575 F.
Supp. 2d at 160 (stating that "since the attacks, as a matter of official policy, the DoD carefully
considers and limits the release of all names and other personal information concerning
military and civilian personnel, based on a conclusion that they are at increased risk
regardless of their duties or assignment to such a unit"); Los Angeles Times Commc'ns LLC
v. U.S. Dep't of Labor, 483 F. Supp. 2d 975, 985-86 (C.D. Cal. 2007) (concluding that defendant
properly withheld information revealing the identity of all civilian contractors supporting
Allied military operations in Iraq and Afghanistan because "the privacy life or death interest
of the individual whose records are requested" outweighs "the public interest in disclosure");
Long, 2007 WL 2903924, at *16 n.8 (finding that certain DOD and non-DOD government
employees "have a privacy interest in their names and duty stations" when revelation of their
identities could possibly make them subject to harassment or embarrassment in their
occupation or personal lives); Hiken v. DOD, 521 F. Supp. 2d 1047, 1065 (N.D. Cal. 2007)
(finding that redactions of names of military personnel proper because "defendants present
a strong argument that the privacy interests at stake are significant where the disclosure of
these names would risk harm or retaliation"); Clemmons, 2007 WL 1020827, at *6 ("The
identities of [U.S. Army Criminal Investigation Division] special agents, military police, other
government personnel and [third-party] witnesses were all properly withheld under
Exemptions (b)(6) and (b)(7)(C)."); O'Keefe, 463 F. Supp. 2d at 327 (upholding DOD's
withholding of personal information of investigators as well as subjects of investigation found
in United States Central Command Report); Ctr. for Pub. Integrity v. OPM, No. 04-1274, 2006
WL 3498089, at *6 (D.D.C. Dec. 12, 2006) (finding that OPM properly withheld the names and
duty stations of DOD and certain non-DOD federal personnel in sensitive occupations under
Exemption 6); Deichman v. United States, No. 05-680, 2006 WL 3000448, at *7 (E.D. Va. Oct.
20, 2006) (upholding United States Joint Forces Command's withholding of employee names
and discussions of personnel matters relating to other employees under Exemption 6);
MacLean v. DOD, No. 04-2425, slip op. at 18 (S.D. Cal. June 2, 2005) (protecting "names,
initials, and other personal information" about Defense Hotline Investigators and other DOD
personnel) (Exemptions 6 and 7(C)).
66 See Keys v. DHS, 570 F. Supp. 2d 59, 68 (D.D.C. 2008) (stating that "'[o]ne who serves his
state or nation as a career public servant is not thereby stripped of every vestige of personal
privacy, even with respect to the discharge of his official duties. Public identification of any
of these individuals could conceivably subject them to harassment and annoyance in the
(continued...) Privacy Interest 435
discussion of the privacy protection accorded law enforcement personnel, see Exemption 7(C),
below.)
Unless the information has become "practicably obscure," as discussed below, there is
generally no expectation of privacy regarding information that is particularly well known or
is widely available within the public domain.67 Likewise, an individual generally does not
have any expectation of privacy with respect to information that he or she has made public.68
The D.C. Circuit has held that under the public domain doctrine, information that would
otherwise be subject to a valid FOIA exemption must be disclosed if that information is
preserved in a permanent public record or is otherwise easily accessible by the public.69 In
66(...continued)
conduct of their official duties and in their private lives'" (quoting Nix v. United States, 572 F.2d
998, 1006 (4th Cir. 1978))) (Exemption 7(C)).
67 See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007) (concluding
that the Inspector General's substantive response to the Integrity Committee's questions
should be released because "those portions answer Trentadue's allegations with respect to
specific individuals" and Trentadue's complaint filed with the Integrity Committee is a public
document included in the record of the appeal; therefore, the "[Inspector General's] response
to these accusations, by necessity, mentions the names of these individuals" and "[d]isclosure
of these names, when the allegations made against the individuals are already part of the
public record, would not invade the accused's privacy at all"); Detroit Free Press, Inc. v. DOJ,
73 F.3d 93, 96-97 (6th Cir. 1996) (finding no privacy rights in mug shots of defendants in
ongoing criminal proceedings when names are public and defendants have appeared in open
court) (Exemption 7(C)); Blanton v. DOJ, No. 93-2398, 1994 U.S. Dist. LEXIS 21444, at *11-12
(W.D. Tenn. July 14, 1994) ("The fact of [requester's former counsel's] representation is a matter
of public record . . . . Whether an individual possesses a valid license to practice law is also
a matter of public record and cannot be protected by any privacy interest."). But see Times
Picayune Publ'g Corp. v. DOJ, 37 F. Supp. 2d 472, 477-82 (E.D. La. 1999) (protecting the mug
shot of a prominent individual despite wide publicity prior to his guilty plea, and observing
that a "mug is more than just another photograph of a person") (Exemption 7(C)).
68 See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (finding no
privacy interest in documents concerning presidential candidate's offer to aid federal
government in drug interdiction, a subject about which the candidate had made several public
statements); see also Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir 1998) (noting that
government lawyer investigated by DOJ's Office of Professional Responsibility diminished his
privacy interest by acknowledging existence of investigation but that he still retains privacy
interest in nondisclosure of any details of investigation) (Exemption 7(C)); Billington v. DOJ,
245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons contained
in a reporter's notes given to the State Department was not protected by Exemption 6,
because these persons "knew that they were speaking to a reporter on the record and
therefore could not expect to keep private the substance of the interview").
69 See Niagara Mohawk Power Corp. v. DOJ, 169 F.3d 16, 19 (D.C. Cir.1999); Davis v. DOJ,
968 F.2d 1276, 1279 (D.C. Cir. 1992) (Exemptions 7(C) & 7(D)); Avondale Indus. v. NLRB, 90
F.3d 955, 961 (5th Cir. 1996) (finding that names and addresses of voters in union election
(continued...)
436 Exemption 6
order for the public domain doctrine to apply, a requester must be able to point "to specific
information in the public domain that appears to duplicate that being withheld."70
While as a general rule individuals have no privacy interest in information that has been
previously disclosed, the Supreme Court's decision in Reporters Committee and its progeny
have recognized that individuals have a privacy interest in information that at one time may
have been disclosed or made publicly available, but is now difficult to obtain.71 That is, such
individuals may have a privacy interest in maintaining the information's "practical obscurity."72
69(...continued)
were already disclosed in voluminous public record and that there was no showing that public
record was compiled in such a way as to effectively obscure that information); Hall, 552 F.
Supp. 2d at 30-31 (stating that "[t]he court agrees that, to the extent that the non-redacted
portions specifically identify the names of individuals in specific redacted portions of the
documents, DOJ cannot redact these names" because "[t]he FOIA exemptions do not apply
once the information is in the public domain"); Aguirre v. SEC, 551 F. Supp. 2d 33, 58 (D.D.C.
2008) ("Given the extent to which plaintiff's allegations have been found to be credible by the
Senate Report, and the strong public interest in ferreting out possible improprieties at the
SEC, disclosure is clearly warranted in situations where the person has already been
identified in the Senate Report."); Hidalgo v. FBI, 541 F. Supp. 2d 250, 255 (D.D.C. 2008)
(finding government informant's personal privacy at stake, "but his interest is far more limited
than that of the typical confidential informant" because "status as a government informant is
open and notorious") (Exemptions 6 and 7(C)); O'Neill v. DOJ, No. 05-306, 2007 WL 983143, at
*9 (E.D. Wis. Mar. 26, 2007) ("Under the public domain doctrine, materials not normally
immunized from disclosure under FOIA lose their protective cloak once disclosed and
preserved in a permanent public record."); Nat'l W. Life Ins., 512 F. Supp. at 461 (noting that
names and duty stations of most federal employees are routinely published and available
through Government Printing Office).
70 Afshar v. U.S. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983); see, e.g., Edwards v.
DOJ, No. 04-5044, 2004 WL 2905342, at *1 (D.C. Cir. Dec. 15, 2004) (per curiam) (summarily
affirming district court's decision to bar release of any responsive documents pursuant to
Exemption 7(C); finding that appellant's argument that release of the documents was required
because government officially acknowledged the information contained therein, fails because
appellant "has failed to point to 'specific information in the public domain that appears to
duplicate that being withheld'" (quoting Davis, 968 F.2d at 1279)); Grandison v. DOJ, 600 F.
Supp. 2d 103, 117 (D.D.C. 2009) (finding that plaintiff failed to show that requested information
is publicly available because he "does not show that complete copies of the depositions and
answers to interrogatories requested under the FOIA have been disclosed and are preserved
in a permanent public court record").
71 See Reporters Comm., 489 U.S. at 780.
72 Id. (recognizing privacy interest in maintaining "practical obscurity" of "rap sheets" and
observing that if such items of information actually "were 'freely available,' there would be no
reason to invoke the FOIA to obtain access to" them); see, e.g., Associated Press v. DOJ, 549
F.3d at 65 (applying "practical obscurity" concept and noting that "[t]his [privacy] protection
extends even to information previously made public") (Exemptions 6 and 7(C)); Isley v. EOUSA,
(continued...) Privacy Interest 437
As the Supreme Court found, individuals can have a cognizable privacy interest in
identifying information "that might be found after a diligent search of courthouse files, county
archives, [. . .] local police stations," and other publicly available sources of information, but
otherwise is not readily available to the public. 73
Similarly, courts have found that the mere fact that some of the information may be
known to some members of the public does not negate the individual's privacy interest in
preventing further dissemination to the public at large.74 For example, the Supreme Court in
72(...continued)
No. 98-5098, 1999 WL 1021934, at *4 (D.C. Cir. Oct. 21, 1999) (finding no evidence that
previously disclosed documents "continue to be 'freely available' in any 'permanent public
record'") (Exemption 7(C)); Fiduccia v. DOJ, 185 F.3d 1035, 1046-47 (9th Cir. 1999) (finding
privacy interest based on "practical obscurity" justified and protecting information about two
individuals whose homes were searched ten years previously despite publicity at that time
and fact that some information might be public in various courthouses) (Exemption 7(C));
Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (holding that
there may be privacy interest in personal information even if "available on publicly recorded
filings"); Lawyers' Comm. for Civil Rights v. Dep't of Transp., No. 07-2590, 2008 WL 4482855,
at *21 (N.D. Cal. Sept. 30, 2008) (noting, consistent with "practical obscurity" principles, that
"the Ninth Circuit has held that simply because certain documents that would normally be
subject to Exemptions 7(C) and Exemption 6 have already been publicized does not mean they
must be disclosed by the agency"); Jarvis v. ATF, No. 07-111, 2008 WL 2620741, at *12 (N.D.
Fla. June 30, 2008) (stating that "[a] document previously disclosed may have 'practical
obscurity' and might not again become public without a diligent search[;]" consequently, "the
individual privacy exemption in the FOIA is not necessarily vitiated by prior disclosures");
Canaday v. ICE, 545 F. Supp. 2d 113, 117 (D.D.C. 2008) (relying on "practical obscurity" and
recognizing "a privacy interest in the identifying information of the Federal employees even
though the information may have been public at one time."); Leadership Conference on Civil
Rights, 404 F. Supp. 2d at 257-59 (holding, under Exemption 6, that law enforcement records
that were previously given to symposium members fall within "practical obscurity" rule);
Dayton Newspapers, Inc., 257 F. Supp. 2d at 1010 (reasoning that although modern search
engines might make even otherwise obscure personal information more widely available, that
"does not mean that [individuals] have lost all traits of privacy" in that information); Linn v.
DOJ, No. 92-1406, 1995 WL 417810, at *31 (D.D.C. June 6, 1995) (declaring that even if "some
of the names at issue were at one time released to the general public, individuals are entitled
to maintaining the 'practical obscurity' of personal information that is developed through the
passage of time"). But see CNA Holdings, Inc. v. DOJ, No. 07-2084, 2008 WL 2002050, at *6
(N.D. Tex. May 9, 2008) (finding court documents to be in the public domain due to defendant's
failure to meet its "burden to show that the documents that were clearly public and should be
in the court's files, according to PACER and the common record retention practice of federal
courts, are for some reason not actually still publicly available").
73 Reporters Comm., 489 U.S. at 764.
74 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 n.3 ("As a preliminary
matter, we reject [plaintiff's] contention that the unauthorized leak of the unredacted Cramer
Fire Report or OSHA's decision to identify certain employees in its own report diminishes the
(continued...)
438 Exemption 6
Favish held that the fact that one photograph of the death scene had been leaked to the media
did not detract from the weighty privacy interests of the surviving relatives to be secure from
intrusions by a "sensation-seeking culture" and in limiting further disclosure of the death scene
images, "for their own piece of mind and tranquility."75
74(...continued)
Forest Service's ability to apply Exemption 6 to redact the identities from the Report.");
Horowitz, 428 F.3d at 280 ("Even though the student did reveal his allegation to two Peace
Corps workers . . . he still has an interest in avoiding further dissemination of his identity.");
Barnard, 598 F. Supp. 2d at 12 ("Plaintiff's argument is foreclosed by a long line of cases
recognizing that individuals maintain an interest in their privacy even where some information
is known about them publicly."); Lawyers' Comm. for Civil Rights, 2008 WL 4482855, at *21
(stating that "a person may still have a privacy interest in information that has already been
publicized" and explaining that "[n]or is one's privacy interest in potentially embarrassing
information lost by the possibility that someone could reconstruct that data from public files");
Schoenman, 573 F. Supp. 2d at 149 ("[E]ven if Plaintiff is correct that he can guess the
individual's identity, 'the fact that Plaintiff may deduce the identities of individuals through
other means . . . does not diminish their privacy interests.'" (quoting Shores v. FBI, 185 F. Supp.
2d 77, 83 (D.D.C. 2002))); Thomas v. DOJ, 531 F. Supp. 2d 102, 109 (D.D.C. 2008) ("Third parties'
privacy interests are not lost because a requester knows or can determine from a redacted
record their identities . . . . Nor do third parties lose their privacy interests because their
names already have been disclosed.") (Exemption 7(C)); Summers v. DOJ, 517 F. Supp. 2d 231,
240 (D.D.C. 2007) ("The possibility that plaintiff has determined the identity of the agent,
however, does not undermine that agent's privacy interests."); Lee v. DOJ, No. 05-1665, 2007
WL 744731, at *2 (D.D.C. Mar. 6, 2007) ("[A]lthough the documents may contain information
that has already been made public at one time, given that the information would disclose
incidents of prior criminal conduct by third parties, those individuals certainly have privacy
interests in keeping the information from renewed public scrutiny.") (Exemptions 6 and 7(C));
Pendergrass v. DOJ, No. 04-112, 2005 WL 1378724, at *4 (D.D.C. June 7, 2005) (reasoning that
individual does not lose all privacy interest in telephone conversation even if she knew of
potential for monitoring of such calls); Edmonds v. FBI, 272 F. Supp. 2d 35, 53 (D.D.C. 2003)
(finding that media identification of persons mentioned in a law enforcement file "does not
lessen their privacy interests or 'defeat the exemption,' for prior disclosure of personal
information does not eliminate an individual's privacy interest in avoiding subsequent
disclosure by the government") (Exemptions 6 and 7(C)), appeal dismissed voluntarily, No. 03
5364, 2004 WL 2806508 (D.C. Cir. Dec. 7, 2004); Mueller, 63 F. Supp. 2d at 743 (stating that
existence of publicity surrounding events does not eliminate privacy interest) (Exemptions 6
and 7(C)); Chin, No. 97-2176, slip op. at 5 (W.D. La. June 24, 1999) (concluding that although
"some of the events are known to certain members of the public . . . this fact is insufficient to
place this record for dissemination into the public domain"), aff'd per curiam, No. 99-31237 (5th
Cir. June 15, 2000); cf. Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996) (treating requester's
personal knowledge as irrelevant in assessing privacy interests).
75 541 U.S. at 166-71; see also Baltimore Sun v. U.S. Customs Serv., No. 97-1991, slip op. at
5 (D. Md. Nov. 21, 1997) (finding that subject of photograph introduced into court record
"retained at least some privacy interest in preventing the further dissemination of the
photographic image" when "[t]he photocopy in the Court record was of such poor quality as
to severely limit its dissemination") (Exemption 7(C)).
Privacy Interest 439
However, the District Court for the Southern District of New York decided that military
detainees at Guantanamo Bay had no privacy interest in their identifying information because
they provided the information at formal legal proceedings before a tribunal and there was no
evidence that the detainees "were informed that the proceedings would remain confidential
in any respect."76 Indeed, even though the tribunal records were not made available to the
general public and press attendees had to agree to confidentiality requirements, the court
concluded that the detainees had no privacy interest in stopping further dissemination of their
identifying information. 77 On reconsideration, the court went even further by stating, in dicta,
that third parties had "even less of an expectation" of privacy in the disclosure of their
identifying information by detainees at the tribunals.78
The District Court for the Southern District of New York has also held that height and
weight information concerning Guantanamo Bay detainees was not exempt from disclosure
under Exemption 6.79 Finding at best only a "modest" privacy interest in the nondisclosure of
the information, the court acknowledged that prior cases involving height and weight
information frequently resulted in decisions concluding that the privacy interest in the
nondisclosure of such information is "quite weak." 80 After analyzing the privacy interest at
issue, the court concluded that DOD had failed to make "any particularized showing that
disclosure of this information is likely to lead to retaliation, harassment, or embarrassment."81
Moreover, the court went further by suggesting that "at least some detainees would welcome
having this information disclosed" due to the fact that the "immediate impetus" for the FOIA
request concerned an investigation by the Associated Press of hunger strikes by detainees.82
As for the public interest in disclosure of the information, the court stated that "there is a clear
public interest in obtaining this information so as to assess, not only DOD's conduct with
respect to the hunger strikes at Guantanamo, but more generally DOD's care and (literally)
feeding of the detainees."83 Weighing this public interest in disclosure against the privacy
interest in nondisclosure, the court concluded that the height and weight information
contributes significantly to public understanding of the operations or activities of the
76 Associated Press, 410 F. Supp. 2d at 150 (distinguishing privacy interests involved with
Guantanamo Bay detainees from those involved in Ray, based upon express promises of
confidentiality that had been granted to Haitian "boat people").
77 Id. at 156 & n.2 (opining that the testifying detainees had no privacy interest in their
testimony before tribunals because they did not know of confidentiality requirements, nor did
government require such confidentiality in order to protect any privacy interest of detainees).
78 Id. at 154.
79 Associated Press v. DOD, 462 F. Supp. 2d 573, 577-78 (S.D.N.Y. 2006).
80 Id. at 577 (citing cases).
81 Id.
82 Id.
83 Id. (clarifying that information pertaining to both the height and weight of the detainees
is necessary because "weight information only takes on significance when paired with the
corresponding information on height").
440 Exemption 6
government and this public interest in disclosure "more than outweighs the modest privacy
interest, if any, here proffered by DOD."84
Recently, the Court of Appeals for the Second Circuit decided that Guantanamo Bay
detainees and their family members have a "measurable privacy interest" in the nondisclosure
of their names and identifying information contained in records regarding allegations of abuse
by military personnel and other detainees. 85 Relying upon Exemption 7(C), the Court
concluded that identifying information about detainees, including those detainees who
allegedly have been abused by military personnel and those detainees who are alleged to
have abused other detainees, is entitled to protection because "the privacy interest of the
detainees in nondisclosure of their names and identifying information is not outweighed by
any minimal public interest that might be served by such disclosure."86 Regarding the
identifying information of detainees' family members, the Second Circuit concluded that the
information was exempt from disclosure pursuant to Exemption 6.87 Analyzing the privacy
interest of the family members' identifying information, the Second Circuit found that "[i]f
disclosed, the information would also reveal that the family members are relatives of certain
Guantanamo Bay detainees who testified about the Taliban before the [Administrative Review
Boards]."88 After balancing the privacy interest and public interest in the identifying
information, the court concluded "that disclosing the names and addresses of the family
members would constitute a clearly unwarranted invasion of the family members' privacy
interest because such disclosure would not shed any light on DOD’s action in connection with
the detainees' claims at issue here."89
The majority of courts to have considered the issue have held that individuals who
write to the government expressing personal opinions generally do so with some expectation
of confidentiality unless they are advised to the contrary in advance;90 their identities, but not
84 Id. at 578.
85 Associated Press v. DOD, 554 F.3d at 286.
86 Id. at 290.
87 Id. at 293.
88 Id. at 292.
89 Id. at 293.
90 Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d at 36-37 (concluding
that the agency "made it abundantly clear in its notice that the individuals submitting
comments to its rulemaking would not have their identities concealed" when the rulemaking
notice "specified that '[t]he complete file for this proposed rule is available for inspection'"); see
also U.S. Government, Regulations.gov, The Privacy and Use Notice Regarding Comment
Submission, available at http://www.regulations.gov/search/footer/privacyanduse.jsp (last
visited Apr. 30, 2009) (establishing a government portal facilitating the location, review, and
submission of comments on federal regulations published in the Federal Register that are
open for public comment; and providing that "The comments you provide to a Federal
Department or Agency through Regulations.gov are collected voluntarily and may be publicly
(continued...)
Privacy Interest 441
necessarily the substance of their letters, ordinarily have been withheld.91 For instance, the
Court of Appeals for the Fourth Circuit protected under Exemption 7(C) the names and
addresses of people who wrote to the IRS expressing concerns about an organization's taxexempt
status.92 The District Court for the District of Columbia reached the same conclusion
as the Fourth Circuit for the names and addresses of people who wrote to the IRS to comment
on the same organization's tax-exempt status, both pro and con.93 The United States District
Court for the Northern District of California found that the names of persons who complained
to the TSA and FBI about the TSA "watch list" were properly protected, as long as those
individuals had not otherwise made their complaints public.94 Nevertheless, in some
circumstances courts have refused to accord privacy protection to such government
correspondents.95
90(...continued)
disclosed in a rulemaking docket or on the Internet.").
91 See, e.g., Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1125 (7th Cir. 2003) (finding that
the "core purposes" of the FOIA would not be served by the release of the names and
addresses of persons who complained to the FTC about "cramming"); Strout v. U.S. Parole
Comm'n, 40 F.3d 136, 139 (6th Cir. 1994) (articulating public policy against disclosure of names
and addresses of people who write Parole Commission opposing convict's parole); Carter,
Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 145 n.4 (D.D.C. 2007) ("Consumers making
complaints with the FTC have an expectation that it will protect their personal information.");
Kidd v. DOJ, 362 F. Supp. 2d at 297 (protecting names and addresses of constituents in letters
written to their congressman); Butler v. SSA, No. 03-0810, slip op. at 5 (W.D. La. June 25, 2004)
(finding that persons making complaints against an administrative law judge "have a privacy
interest" in their complaints), aff'd on other grounds, 146 F. App'x 752 (5th Cir. 2005); Voinche,
940 F. Supp. at 329-30 ("There is no reason to believe that the public will obtain a better
understanding of the workings of various agencies by learning the identities of . . . private
citizens who wrote to government officials . . . ."), aff'd per curiam, No. 96-5304, 1997 WL
411685 (D.C. Cir. June 19, 1997); Holy Spirit Ass'n v. U.S. Dep't of State, 526 F. Supp. 1022,
1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens to
communicate their concerns regarding their communities" is fostered by protecting identities
of writers); see also Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (MacKinnon, J.,
concurring) (concurring with the nondisclosure of correspondence because communications
from citizens to their government "will frequently contain information of an intensely personal
sort") (Exemptions 6 and 7(C)).
92 Judicial Watch, Inc. v. United States, 84 F. App'x at 337.
93 Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 28 (D.D.C. 2003) (Exemption 7(C)).
94 Gordon v. FBI, 388 F. Supp. 2d 1028, 1041-42, 1045 (N.D. Cal. 2005) (Exemptions 6 and
7(C)).
95 See People for the Am. Way Found., 503 F. Supp. 2d at 306 ("Disclosing the mere identity
of individuals who voluntarily submitted comments regarding the Lincoln video does not raise
the kind of privacy concerns protected by Exemption 6 . . . . Moreover, the public interest in
knowing who may be exerting influence on [agency] officials sufficient to convince them to
(continued...) 442 Exemption 6
Since the privacy interest under Exemption 6 only pertains to individuals, neither
corporations nor business associations possess protectible privacy interests.96 The closely
held corporation or similar business entity, however, is an exception to this principle:
"Exemption 6 applies to financial information in business records when the business is
individually owned or closely held, and 'the records would necessarily reveal at least a portion
of the owner's personal finances.'"97 Moreover, when a record reflects personal details
95(...continued)
change the video outweighs any privacy interest in one's name."); Lardner, 2005 WL 758267,
at *17, *19 (requiring release of identities of unsuccessful pardon applicants, as well as
individuals mentioned in pardon documents, because they wrote letters in support of pardon
applications or were listed as character references on pardon applications); Landmark Legal
Found. v. IRS, 87 F. Supp. 2d 21, 27-28 (D.D.C. 2000) (granting Exemption 3 protection under
26 U.S.C. § 6103, but declining to grant Exemption 6 protection to citizens who wrote to IRS
to express opinions or provide information; noting that "IRS has suggested no reason why
existing laws are insufficient to deter any criminal or tortious conduct targeted at persons who
would be identified"), aff'd on Exemption 3 grounds, 267 F.3d 1132 (D.C. Cir. 2001); Judicial
Watch v. DOJ, 102 F. Supp. 2d 6, 17-18 (D.D.C. 2000) (allowing deletion of home addresses and
telephone numbers but ordering release of identities of individuals who wrote to Attorney
General about campaign finance or Independent Counsel issues); Cardona v. INS, No. 93-3912,
1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995) (finding only "de minimis invasion of privacy" in
release of name and address of individual who wrote letter to INS complaining about private
agency that offered assistance to immigrants).
96 See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980) ("Exemption 6 is applicable
only to individuals."); Nat'l Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673, 686 n.44
(D.C. Cir. 1976) ("The sixth exemption has not been extended to protect the privacy interests
of businesses or corporations."); Hodes v. HUD, 532 F. Supp. 2d 108, 119 (D.D.C. 2008) ("As a
threshold matter, both Parties fail . . . to acknowledge that only individuals (not commercial
entities) may possess protectible privacy interests under Exemption 6."); Maydak v. DOJ, 362
F. Supp. 2d 316, 324-25 (D.D.C. 2005) (stating that Exemption 6 applies "'only to individuals'"
(quoting Sims, 642 F.2d at 572 n.47)); cf. Iowa Citizens for Cmty. Improvement v. USDA, 256
F. Supp. 2d 946, 952 n.10 (S.D. Iowa 2002) (dictum) (noting that "[i]t is not clear to this Court
that a trust, any more than a corporation, has a privacy interest worthy of protection under the
FOIA").
97 Multi Ag, 515 F.3d at 1228-29 (quoting Nat'l Parks, 547 F.2d at 685); see, e.g., Consumers'
Checkbook, 554 F.3d at 1051 ("We have . . . recognized substantial privacy interests in
business-related financial information for individually owned or closely held businesses.");
Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978) ("While corporations have no
privacy, personal financial information is protected, including information about small
businesses when the individual and corporation are identical.") rev'd on other grounds, 602
F.2d 1010 (1st Cir. 1979); see also Beard v. Espy, No. 94-16748, 1995 WL 792071, at *1 (9th Cir.
Dec. 11, 1995); Nat'l Parks, 547 F.2d at 685-86; Okla. Publ'g Co. v. HUD, No. CIV-87-1935-P, 1988
U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June 17, 1988); FOIA Update, Vol. III, No. 4, at 5
("FOIA Counselor: Questions & Answers") (advising that corporations do not have privacy,
but that personal financial information is protectible when individual and corporation are
identical). But see Long v. DOJ, 450 F. Supp. 2d 42, 72 (D.D.C. 2006) ("At most, [the
(continued...) Privacy Interest 443
regarding an individual, albeit within the context of a business record, the individual's privacy
interest is not diminished and courts have permitted agency withholding of such
information.98 Courts have found, however, that such an individual's expectation of privacy
is diminished with regard to matters in which he or she is acting in a business capacity.99 In
Doe v. Veneman, on the other hand, the District Court for the Western District of Texas ruled
that the Department of Agriculture had erroneously labeled individuals (who were taking part
in a USDA program) as "businesses" based on either the number of livestock they owned or
the fact that they had a name for their ranch, and it found that personally identifying
information about those individuals was exempt from disclosure.100
When analyzing the privacy interest in nondisclosure under the FOIA, courts have
found that the privacy interest of an individual may be diminished if that individual is
97(...continued)
Department of Justice] ha[s] shown that disclosure of one record would reveal that an
individual is associated with a business that in turn is a party to a legal proceeding. That fact,
standing alone, does not implicate the FOIA's personal privacy concerns."), amended by 457
F. Supp. 2d 30 (D.D.C. 2006), amended further on reconsideration, 479 F. Supp. 2d 23 (D.D.C.
2007).
98 See Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-89 (8th Cir. 2000)
(protecting identities of pork producers who signed petition calling for abolishment of
mandatory contributions to fund for marketing and advertising pork, because release would
reveal position on referendum and "would vitiate petitioners' privacy interest in secret ballot")
(reverse FOIA suit); Forest Guardians v. U.S. Forest Serv., No. 99-0615, slip op. at 39-45
(D.N.M. Jan. 29, 2001) (finding "'substantial' privacy interest" in personal loan information
contained on escrow waiver forms that record ranchers' use of federal grazing permits as loan
collateral) (reverse FOIA suit); Hill v. USDA, 77 F. Supp. 2d 6, 8 (D.D.C. 1999) (finding privacy
interest in records of business transactions between borrowers and partly owned family
corporation relating to loans made by Farmers Home Administration to individual borrowers),
summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000).
99 See, e.g., Hersh & Hersh v. HHS, No. 06-4234, 2008 WL 901539, at *8 (N.D. Cal. Mar. 31,
2008) (finding that business addresses, phone numbers, and job titles of non-federal corporate
employees do not implicate the same type of heightened concerns as "private citizens'
identities, home addresses, home telephone numbers, social security numbers, medical
information, etc."); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp. 2d 1088,
1089 (D. Or. 1998) (concluding that cattle owners who violated federal grazing laws have
"diminished expectation of privacy" in their names when such information relates to
commercial interests) (Exemption 7(C)); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36
(D.D.C. Oct. 18, 1996) (finding that farmers who received subsidies under cotton price-support
program have only minimal privacy interests in home addresses from which they also operate
businesses), appeal dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson &
Bishop Chartered v. USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (concluding that
commercial mushroom growers operating under individual names have no expectation of
privacy).
100 Doe v. Veneman, 230 F. Supp. 2d 739, 748-51 (W.D. Tex. 2002), aff'd in pertinent part on
other grounds, 380 F.3d 807, 818 n.39 (5th Cir. 2004). 444 Exemption 6
deceased.101 While courts have not established a bright-line rule regarding the extent to
which an agency must go in determining whether an individual has died, the D.C. Circuit has
held that an agency must take certain "basic steps," which can vary depending on the specific
circumstances of a particular case, to investigate whether disclosure would violate a living
person's privacy interests. 102 An agency must take these basic steps to determine life status
before invoking a privacy interest under Exemptions 6 or 7(C).103 The D.C. Circuit has upheld
the use of the FBI's "100-year rule," in making its privacy protection determinations whereby
the FBI assumes that an individual is alive unless his or her birthdate is more than 100 years
101 See Davis v. DOJ, 460 F.3d 92, 97-98 (D.C. Cir. 2007) ("We have recognized 'that the
privacy interest in nondisclosure of identifying information may be diminished where the
individual is deceased.'" (quoting Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) ("The fact
of death, therefore, while not requiring the release of identifying information, is a relevant
factor to be taken into account in the balancing decision whether to release information.")))
(Exemption 7(C)); Grandison, 600 F. Supp. 2d at 114 ("However, 'the death of the subject of
personal information does diminish to some extent the privacy interest in that information,
though it by no means extinguishes that interest; one's own and one's relations' interests in
privacy ordinarily extend beyond one's death'" (quoting Schrecker v. DOJ, 254 F.3d 162, 166
(D.C. Cir. 2001))); Schoenman, 575 F. Supp. 2d at 176 ("Significantly, the D.C. Circuit also
recognizes 'that the privacy interest in nondisclosure of identifying information may be
diminished where the individual is deceased,' and has explained that '[t]he fact of death,
therefore, while not requiring the release of information, is a relevant factor to be taken into
account in the balancing decision whether to release information.'" (quoting Schrecker v. DOJ,
349 F.3d at 661)); Summers, 517 F. Supp. 2d at 241 ("This Circuit has 'recognized that the
privacy interest in nondisclosure of identifying information may be diminished where the
individual is deceased.'" (quoting Davis, 460 F.3d at 98)).
102 See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002) (finding that agency's efforts
to determine if individuals were alive or dead met "basic steps" necessary to determine
information that could affect privacy interests, and concluding that "[w]e will not attempt to
establish a brightline set of steps for agency to take" in determining whether an individual is
dead); see also, e.g., Manna v. DOJ, No. 92-1840, slip op. at 8 (D.N.J. Aug. 27, 1993) (finding
government's obligation fulfilled by search of computerized index system and index cards for
evidence of death of witness relocated more than twenty years ago), aff'd, 51 F.3d 1158 (3d
Cir. 1995); Williams v. DOJ, 556 F. Supp. 63, 66 (D.D.C. 1982) (finding agency's good-faith
processing, rather than extensive research for public disclosures, sufficient in lengthy,
multifaceted judicial proceedings).
103 See Schrecker v. DOJ, 254 F.3d 162, 167 (D.C. Cir. 2001) ("Without confirmation that the
Government took certain basic steps to ascertain whether an individual was dead or alive, we
are unable to say whether the Government reasonably balanced the interests in personal
privacy against the public interest in release of the information at issue."); Schoenman, 576 F.
Supp. 2d at 9-10, 13-14 (declaring that an agency must make reasonable effort to determine
an individual's life status prior to invoking privacy interest under Exemptions 6 and 7(C), and
finding that "agencies must take pains to ascertain life status in the first instance, i.e., in
initially balancing the privacy and public interests at issue").
Privacy Interest 445
ago.104
When analyzing protectible privacy interests, "survivor privacy" warrants discussion.
The Supreme Court held unanimously in Favish that the "FOIA recognizes surviving family
members' right to personal privacy with respect to their close relative's death-scene
images."105 This case involved a request for several death-scene photographs of a former
Deputy White House Counsel.106 The government protected the photographs under the FOIA,
but the lower courts ordered them disclosed.107 Favish argued, relying on particular language
in Reporters Committee, that only the individual who was the direct "subject" of the records
could have a privacy interest in those records.108 The Court rejected this argument, stating
that "[t]he right to personal privacy is not confined, as Favish argues, to the 'right to control
information about oneself.' Favish misreads [our opinion] in Reporters Committee and adopts
too narrow an interpretation of the case's holding."109
The Court then decided that "survivor privacy" was a valid privacy interest protected
by Exemption 7(C), based on three factors. First, Reporters Committee did not restrict
104 Schrecker, 349 F.3d at 662-65 (holding that the FBI's administrative process of using its
"100-year rule," searching the Social Security Death Index if an individual's birthdate is in
records, and using its institutional knowledge, is reasonable and sufficient in determining
whether individuals mentioned in requested records are deceased); see Davis, 460 F.3d at
101-05 (acknowledging FBI's use of "100-year rule"; finding that use of the rule was destined
to fail when applied to audiotapes, as opposed to documents, and stating that "[t]he
reasonableness of [the "100-year rule"] depends upon the probability that the responsive
records will contain the individual's birth date . . . . [I]t seems highly unlikely that the
participants in an audiotaped conversation would have announced their ages or dates of
birth") (Exemption 7(C)); see also Schoenman, 576 F. Supp. 2d at 10 ("The D.C. Circuit has
concluded that the 100-year rule is, as a general matter, a reasonable prophylactic
presumption."); Summers, 517 F. Supp. 2d at 242 (concluding that defendants adequately
"determined the life status of named agents by using the agency's '100-year rule,' the Who Was
Who publication, the institutional knowledge of employees, and prior FOIA requests" given
that "there are over 1100 responsive documents, and there are likely many third-party named
individuals whose privacy is at issue"); Piper v. DOJ, 428 F. Supp. 2d 1, 3 (D.D.C. Apr. 12, 2006)
(observing that D.C. Circuit in Schrecker, 349 F.3d at 665, concluded that use of "100-year rule"
was reasonable), aff'd, 222 F. App'x 1 (D.C. Cir. 2007).
105 541 U.S. at 170; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"
(posted 4/9/04).
106 541 U.S. at 161.
107 Id. at 161-64; see FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case"
(posted 5/13/03; supplemented 10/10/03) (chronicling case's history).
108 541 U.S. at 165.
109 Id.
446 Exemption 6
personal privacy as "some limited or 'cramped notion' of that idea,"110 so personal privacy is
broad enough to protect surviving family members' "own privacy rights against public
intrusions."111 Second, the Court reviewed the long tradition at common law of
"acknowledging a family's control over the body and death images of the deceased."112 Third,
the Court reasoned that Congress used that background in creating Exemption 7(C), including
the fact that the governmentwide FOIA policy memoranda of two Attorneys General had
specifically extended privacy protection to families.113
Thus, the Supreme Court endorsed the holdings of several lower courts in recognizing
that surviving family members have a protectible privacy interest in sensitive, often graphic,
personal details about the circumstances surrounding an individual's death.114
110 Id. at 165.
111 Id. at 167.
112 Id. at 168. But cf. Showler v. Harper's Magazine Found., No. 05-178, slip op. at 6 (E.D.
Okla. Dec. 22, 2005) (finding that a photograph of a deceased individual was distinguishable
from the death-scene photographs in Favish because, inter alia, the photograph "was taken
at a public, newsworthy event" and "was the same scene the funeral attendees observed").
113 541 U.S. at 169 (citing Attorney General's Memorandum on the Public Information Section
of the Administrative Procedure Act (FOIA) 36 (June 1967) and Attorney General's
Memorandum on the 1974 Amendments to the Freedom of Information Act 9-10 (Feb. 1975)).
114 See, e.g., Hale v. DOJ, 973 F.2d 894, 902 (10th Cir. 1992) (perceiving "no public interest
in photographs of the deceased victim, let alone one that would outweigh the personal privacy
interests of the victim's family") (Exemption 7(C)), cert. granted, vacated & remanded on other
grounds, 509 U.S. 918 (1993); Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (affirming
nondisclosure of autopsy reports of individuals killed by cyanide-contaminated products);
Badhwar v. U.S. Dep't of the Air Force, 829 F.2d 182, 186 (D.C. Cir. 1987) (noting that some
autopsy reports might "shock the sensibilities of surviving kin"); Marzen v. HHS, 825 F.2d 1148,
1154 (7th Cir. 1987) (holding deceased infant's medical records exempt because their release
"would almost certainly cause . . . parents more anguish"); Isley v. EOUSA, No. 96-0123, slip
op. at 3-4 (D.D.C. Feb. 25, 1998) (approving the withholding of "medical records, autopsy
reports and inmate injury reports pertaining to a murder victim as a way of protecting
surviving family members"), aff'd on other grounds, 203 F.3d 52 (D.C. Cir. 1999) (unpublished
table decision); Katz v. NARA, 862 F. Supp. 476, 483-86 (D.D.C. 1994) (holding that Kennedy
family's privacy interests would be invaded by disclosure of "graphic and explicit" JFK autopsy
photographs), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir. 1995); N.Y. Times Co. v. NASA,
782 F. Supp. 628, 631-32 (D.D.C. 1991) (withholding audiotape of voices of Space Shuttle
Challenger astronauts recorded immediately before their deaths, to protect family members
from pain of hearing final words of loved ones); Cowles Publ'g Co. v. United States, No. 90-349,
slip op. at 6-7 (E.D. Wash. Dec. 20, 1990) (withholding identities of individuals who became
ill or died from radiation exposure, in order to protect living victims and family members of
deceased persons from intrusive contacts and inquiries). But see Journal-Gazette Co. v. U.S.
Dep't of the Army, No. F89-147, slip op. at 8-9 (N.D. Ind. Jan. 8, 1990) (holding that because
autopsy report of Air National Guard pilot killed in training exercise contained "concise
(continued...) Privacy Interest 447
Although courts have found that one's status as a public figure might in some
circumstances factor into the privacy balance, a public figure does not, by virtue of his status,
forfeit all rights of privacy.115 Indeed, in Favish, the deceased former Deputy White House
Counsel's status as both a public figure and a high-level government official did not, in the
114(...continued)
medical descriptions of the cause of death," not "graphic, morbid descriptions," survivors'
minimal privacy interest was outweighed by public interest); cf. Outlaw v. U.S. Dep't of the
Army, 815 F. Supp. 505, 506 (D.D.C. 1993) (ordering disclosure in absence of evidence of
existence of any survivor whose privacy would be invaded by release of murder-scene
photographs of man murdered twenty-five years earlier); Rabbitt v. Dep't of the Air Force, 401
F. Supp. 1206, 1210 (S.D.N.Y. 1974) (ordering disclosure of medical records of two Air Force
personnel who died in airplane accident).
115 See Forest Serv. Employees for Envtl. Ethics, 524 F.3d at 1025 (noting that "while the
privacy interests of public officials are 'somewhat reduced' when compared to those of private
citizens, 'individuals do not waive all privacy interests . . . simply by taking an oath of public
office.'" (quoting Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001))); Kimberlin,
139 F.3d at 949 (stating that ''although government officials, as we have stated before, may
have a 'somewhat diminished' privacy interest, they 'do not surrender all rights to personal
privacy when they accept a public appointment'") (quoting Quinon v. FBI, 86 F.3d 1222, 1230
(D.C. Cir. 1996))) (Exemption 7(C)); Fund for Constitutional Gov't v. NARA, 656 F.2d 856, 865
(D.C. Cir. 1981); Nat'l Sec. News Serv., 584 F. Supp. 2d at 96 (finding that "[d]isclosure of the
requested patient admission records only would reveal who was admitted to the Naval
Medical Center; it would reveal nothing about the Navy's own conduct" and "[t]his is so
irrespective of whether one of the persons then admitted to the hospital is now a public
figure"); Canaday, 545 F. Supp. 2d at 118 (stating that public figures "do not forfeit all vestiges
of privacy"); Phillips v. ICE, 385 F. Supp. 2d 296, 305 (S.D.N.Y. 2005) (disregarding requester's
unsupported claim that former foreign government officials have no "legitimate privacy
interest[s]"); Wolk v. United States, No. 04-832, 2005 WL 465382, at *5 (E.D. Pa. Feb. 28, 2005)
("[O]fficials do not surrender all of their rights to personal privacy when they accept a public
appointment.") (Exemptions 6 and 7(C)); Elec. Privacy Info. Ctr. v. DOJ, No. 02-0063, slip op.
at 10 n.7 (D.D.C. Mar. 11, 2004) (concluding that "government officials do not lose all personal
private rights when they accept a public appointment"); Billington v. DOJ, 11 F. Supp. 2d 45,
62 (D.D.C. 1998) (finding that although public officials in some circumstances have diminished
privacy, residual privacy interests militate against disclosure of nonpublic details), aff'd in
pertinent part, 233 F.3d 581 (D.C. Cir. 2000); cf. McNamera v. DOJ, 974 F. Supp. 946, 959 (W.D.
Tex. 1997) (stating that "[s]imply because an individual was once a public official does not
mean that he retains that status throughout his life," and holding that three years after a
disgraced sheriff resigned he was "a private, not a public figure") (Exemption 7(C)); Steinberg
v. DOJ, No. 93-2409, slip op. at 11 (D.D.C. July 14, 1997) ("[E]ven widespread knowledge about
a person's business dealings cannot serve to diminish his or her privacy interests in matters
that are truly personal.") (Exemption 7(C)). But cf. Judicial Watch, Inc. v. DOJ, No. 00-745,
2001 U.S. Dist. LEXIS 25731, at *13 (D.D.C. Feb. 12, 2001) (suggesting that pardoned prisoners
lost any privacy interests since they "arguably bec[a]me public figures through their wellpublicized
pleas for clemency and [given] the speeches some have made since their release")
(Exemption 7(C)).
448 Exemption 6
Supreme Court's opinion, "detract" at all from the "weighty privacy interests involved."116
Likewise, a candidate for a political office, either federal or nonfederal, does not forfeit all
rights to privacy.117 Notably, courts afford foreign nationals the same basic privacy rights
under the FOIA as they afford U.S. citizens.118
Individuals do not waive their privacy rights merely by signing a document that states
that information may be released pursuant to the FOIA.119 As one court has observed, such
a statement is not a waiver of the right to confidentiality, it is merely a warning by the agency
and corresponding acknowledgment by the signers "that the information they were providing
could be subject to release." 120 Similarly, the Court of Appeals for the Eighth Circuit has held
that individuals who sign a petition, knowing that those who sign afterward will observe their
116 541 U.S. at 171.
117 See Nation Magazine, 71 F.3d at 894 & n.9 ("Although candidacy for federal office may
diminish an individual's right to privacy . . . it does not eliminate it[.]"); Hunt v. U.S. Marine
Corps, 935 F. Supp. 46, 54 (D.D.C. 1996) (finding that senatorial candidate has unquestionable
privacy interest in his military service personnel records and medical records); Nation
Magazine v. Dep't of State, No. 92-2303, 1995 WL 17660254, at *10 (D.D.C. Aug. 18, 1995)
(upholding refusal to confirm or deny existence of investigative records pertaining to
presidential candidate); cf. Iowa Citizens, 256 F. Supp. 2d at 954 (ruling that nominee for
position of Undersecretary of Agriculture for Rural Development does not forfeit all privacy
rights).
118 See Ray, 502 U.S. at 175-79 (applying traditional analysis of privacy interests under FOIA
to Haitian nationals); Judicial Watch, Inc. v. DHS, 514 F. Supp. 2d 7, 10 n.4 (D.D.C. 2007)
(stating that "courts in our Circuit have held that foreign nationals are entitled to the same
privacy rights under FOIA as United States citizens"); Ctr. for Nat'l Sec. Studies v. DOJ, 215 F.
Supp. 2d 94, 105-06 (D.D.C. 2002) (recognizing, without discussion, the privacy rights of post
9/11 detainees who were unlawfully in the United States) (Exemption 7(C)), aff'd on other
grounds, 331 F.3d 918 (D.C. Cir. 2003); Schiller v. INS, 205 F. Supp. 2d 648, 662 (W.D. Tex. 2002)
(finding that "[a]liens [and] their families . . . have a strong privacy interest in nondisclosure
of their names, addresses, and other information which could lead to revelation of their
identities") (Exemption 7(C)); Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at
*8 (D.D.C. Mar. 30, 2001) (protecting asylum application filed on behalf of Cuban émigré);
Hemenway, 601 F. Supp. at 1005-07 (according Exemption 6 protection to citizenship
information regarding news correspondents accredited to attend State Department press
briefings).
119 See Lakin Law Firm, 352 F.3d at 1124-25 (explaining that a warning on Federal Trade
Commission website that "information provided may be subject to release under the FOIA"
cannot be construed as a waiver by consumers) (emphasis added); Hill, 77 F. Supp. 2d at 8
(noting that disclosure warning in loan documents was "a warning, not a waiver," and that
"[t]he statement does not say that the government will not attempt to protect privacy rights
by asserting them, and indeed the government is expected to do so.").
120 Hill, 77 F. Supp. 2d at 8 (holding borrowers of Farmers Home Administration loans did
not waive their privacy interests by signing loan-application documents that contained a mere
warning information supplied could be released). Privacy Interest 449
signatures, do not waive their privacy interests.121 While such persons "would have no reason
to be concerned that a limited number of like-minded individuals may have seen their names,"
they may well be concerned "that the petition not become available to the general public,
including those opposing [the petitioners' position]."122
In addition, individuals who testify at criminal trials do not forfeit their rights to privacy
except on those very matters that become part of the public record.123 Nor do individuals who
plead guilty to criminal charges lose all rights to privacy with regard to the proceedings
against them.124 Similarly, individuals who provide law enforcement agencies with reports
of illegal conduct have well-recognized privacy interests, particularly when such persons
reasonably fear reprisals for their assistance.125 Even absent any evidence of fear of reprisals,
121 See Campaign for Family Farms, 200 F.3d at 1188.
122 Id.
123 See Isley, 1999 WL 1021934, at *4; Kiraly v. FBI, 728 F.2d 273, 279 (6th Cir. 1984); Brown
v. FBI, 658 F.2d 71, 75 (2d Cir. 1981); see also Scales, 594 F. Supp. 2d at 91 ("The mere fact that
Hubbard testified at trial, or that she acknowledged at trial that there were forgery charges
pending against her at that time, does not constitute a waiver of her privacy rights to all other
related information, as requested by the plaintiff."); Jarvis, 2008 WL 2620741, at *13 ("That the
individual testified in a public trial, however, is not necessarily a waiver.") (Exemption 7(C));
Valdez v. DOJ, 474 F. Supp. 2d 128, 133 (D.D.C. 2007) ("The fact that a third party testified
publicly at trial does not diminish or waive his privacy interest.") (Exemption 7(C)); Meserve
v. DOJ, No. 04-1844, 2006 WL 2366427, at *7 (D.D.C. Aug. 14, 2006) ("[A] witness who testifies
at trial does not waive her personal privacy."); Butler v. DOJ, 368 F. Supp. 2d 776, 783-84 (E.D.
Mich. 2005) (protecting information about "informant who gave grand jury testimony
implicating Plaintiff in crimes") (Exemptions 6 and 7(C)); Coleman v. FBI, 13 F. Supp. 2d 75, 80
(D.D.C. 1998); cf. Irons v. FBI, 880 F.2d 1446, 1454 (1st Cir. 1989) (en banc) (holding that
disclosure of any source information beyond that actually testified to by confidential source
is not required) (Exemption 7(D)).
124 See Times Picayune, 37 F. Supp. 2d at 477-78 (refusing to order release of a mug shot,
which with its "unflattering facial expressions" and "stigmatizing effect [that] can last well
beyond the actual criminal proceedings . . . preserves, in its unique and visually powerful way,
the subject individual's brush with the law for posterity"); see also McNamera, 974 F. Supp.
at 959 (holding that convict's privacy rights are diminished only with respect to information
made public during criminal proceedings against him) (Exemption 7(C)).
125 See McCutchen v. HHS, 30 F.3d 183, 189 (D.C. Cir. 1994) ("The complainants [alleging
scientific misconduct] have a strong privacy interest in remaining anonymous because, as
'whistle-blowers,' they might face retaliation if their identities were revealed.") (Exemption
7(C)); Holy Spirit, 683 F.2d at 564-65 (concurring opinion) (recognizing that writers of letters
to authorities describing "'bizarre' and possibly illegal activities . . . could reasonably have
feared reprisals against themselves or their family members") (Exemptions 6 and 7(C));
Amuso, 600 F. Supp. 2d at 93 ("Disclosure of the interviewee's identity could result in
harassment, intimidation, or threats of reprisal or physical harm to the interviewee.");
Clemmons, 2007 WL 1020827, at *6 (stating that "there is a significant interest in maintaining
(continued...) 450 Exemption 6
however, witnesses who provide information to investigative bodies -- administrative and
civil, as well as criminal -- ordinarily are accorded privacy protection. 126 (For a more
125(...continued)
the secrecy of the identity of witnesses and third party interviewees so that law enforcement
can continue to gather information through these interviews while assuring that the
interviewees will not be subject to harassment or reprisal") (Exemptions 6 and 7(C));
Balderrama v. DHS, No. 04-1617, 2006 WL 889778, at *9 (D.D.C. Mar. 30, 2006) ("[T]he
individuals whose identities have been protected -- witnesses, undercover officers, informants
-- maintain a substantial privacy interest in not being identified with law enforcement
proceedings.") (Exemptions 6 and 7(C)); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest
Serv., No. 05-6015, 2005 WL 3488453, at *3 (D. Or. Dec. 21, 2005) (protecting identities of lowlevel
and mid-level Forest Service employees who cooperated with accident investigation,
because "these employees could face harassment"), aff'd, 524 F.3d 1021 (9th Cir. 2008);
Billington v. DOJ, 301 F. Supp. 2d 15, 19-21 (D.D.C. 2004) (protecting identity of reporter who
furnished interview notes to State Department, partly based upon existence of "substantial"
fear of reprisal by Lyndon LaRouche followers); McQueen v. United States, 264 F. Supp. 2d
502, 519-20 (S.D. Tex. 2003) (protecting names and identifying information of grand jury
witnesses and other sources when suspect had made previous threats against witnesses)
(Exemption 7(C)), aff'd per curiam, 100 F. App'x 964 (5th Cir. 2004); Summers v. DOJ, No. 87
3168, slip op. at 4-15 (D.D.C. Apr. 19, 2000) (protecting identities of individuals who provided
information to FBI Director J. Edgar Hoover concerning well-known people "because persons
who make allegations against public figures are often subject to public scrutiny"); Ortiz v.
HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (noting that probable close relationship between
plaintiff and author of letter about her to HHS was likely to lead to retaliation); Cappabianca
v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1564-65 (M.D. Fla. 1994) (finding that the
"opportunity for harassment or embarrassment is very strong" in a case involving the
investigation of "allegations of harassment and retaliation for cooperation in a prior
investigation") (Exemptions 6 and 7(C)).
126 See, e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) (concluding that "[t]he public's
interest in learning the identities of witnesses and other third parties is minimal because the
information tells little or nothing about either the administration of the INS program or the
Inspector General's conduct of its investigation") (Exemptions 6 and 7(C)), vacated &
remanded, 541 U.S. 970, on remand, 380 F.3d 110 (2d Cir. 2004) (per curiam); Ford v. West, No.
97-1342, 1998 WL 317561, at *1-2 (10th Cir. June 12, 1998) (finding thoughts, sentiments, and
emotions of co-workers questioned in investigation of racial harassment claim to be within
protections of Exemptions 6 and 7(C)); Citizens for Responsibility & Ethics in Wash. v. Nat'l
Indian Gaming Comm'n, 467 F. Supp. 2d 40, 53 (D.D.C. 2006) ("The fact that an individual
supplied information to assist [National Indian Gaming Commission] in its investigations is
exempt from disclosure under FOIA, regardless of the nature of the information supplied.")
(Exemptions 6 and 7(C)); Brown v. EPA, 384 F. Supp. 2d 271, 278-80 (D.D.C. 2005) (protecting
government employee-witnesses and informants because "[t]here are important principles at
stake in the general rule that employees may come forward to law enforcement officials with
allegations of government wrongdoing and not fear that their identities will be exposed
through FOIA") (Exemption 7(C)); Wolk, 2005 WL 465382, at *5 n.7 (recognizing that
"interviewees who participate in FBI background investigations have a substantial privacy
interest") (Exemptions 6 and 7(C)); Hayes v. U.S. Dep't of Labor, No. 96-1149, slip op. at 9-10
(continued...) Privacy Interest 451
detailed discussion of the privacy protection accorded such law enforcement sources, see
Exemption 7(C), below.)
Faced with reverse FOIA challenges, several courts have had to consider whether to
order agencies not to release records pertaining to individuals that agencies had determined
should be disclosed.127 These privacy reverse FOIA cases are similar in posture to the more
common reverse FOIA cases that are based upon a submitter's claim that information falls
within Exemption 4, cases which ordinarily involve the agency conducting "submitter notice"
126(...continued)
(S.D. Ala. June 18, 1998) (magistrate's recommendation) (protecting information that "would
have divulged personal information or disclosed the identity of a confidential source" in an
OSHA investigation) (Exemption 7(C)), adopted, (S.D. Ala. Aug. 10, 1998); Tenaska Wash.
Partners v. DOE, No. 8:96-128, slip op. at 6-8 (D. Neb. Feb. 19, 1997) (protecting information
that would "readily identify" individuals who provided information during routine IG audit);
McLeod v. Peña, No. 94-1924, slip op. at 4 (D.D.C. Feb. 9, 1996) (protecting in their entireties
memoranda and witness statements concerning investigation of plaintiff's former
commanding officer when unit consisted of eight officers and twenty enlisted personnel)
(Exemption 7(C)), summary affirmance granted sub nom. McLeod v. U.S. Coast Guard, No. 96
5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997). But see Cooper Cameron Corp. v. U.S. Dep't
of Labor, 280 F.3d 539, 553-54 (5th Cir. 2002) (ordering disclosure of information that could link
witnesses to their OSHA investigation statements, because agency presented no evidence of
"possibility of employer retaliation") (Exemption 7(C)); Fortson, 407 F. Supp. 2d at 17 (deciding
that witness statements compiled during an investigation of an equal employment
opportunity complaint filed by the plaintiff must be released due to the following: the
government previously released the names of persons who gave statements during the
investigation; the agency offered only "pure speculation" of potential for harm to be caused by
disclosure of the statements; and "witness statements made during a discrimination
investigation are not the type of information that exemption 6 is designed to protect"); Fine
v. DOE, 823 F. Supp. 888, 896 (D.N.M. 1993) (ordering disclosure based partly upon the fact
that the plaintiff no longer was employed by the agency and was "not in a position on-the-job
to harass or intimidate employees of DOE/OIG and/or its contractors").
127 See, e.g., Nat'l Org. for Women v. SSA, 736 F.2d 727, 728 (D.C. Cir. 1984) (per curiam)
(affirming district court's decision to enjoin release of affirmative action plans submitted to
SSA) (Exemptions 4 and 6); Schmidt v. U.S. Dep't of the Air Force, No. 06-3069, 2007 WL
2812148, at *11 (C.D. Ill. Sept. 20, 2007) (finding that plaintiff has a valid privacy interest
regarding information about his discipline; however, disclosure of records regarding
disciplinary actions against plaintiff is proper because "[i]t is undisputed that the friendly-fire
incident garnered significant public and media attention" and "[t]he release of Schmidt's
reprimand gave the public, in the United States and around the world, insight into the way
in which the United States government was holding its pilot accountable") (Reverse
FOIA/Privacy Act "wrongful disclosure" suit); Sonderegger v. U.S. Dep't of the Interior, 424 F.
Supp. 847, 853-56 (D. Idaho 1976) (ordering temporary injunction of release of claimant names
and amount claimed for victims of Teton Dam disaster, while allowing release of amount paid
and category of payment with all personal identifying information deleted) (Exemptions 4 and
6). 452 Exemption 6
pursuant to the requirements of Executive Order 12,600.128 (See the further discussion of this
point under Reverse FOIA, below.) Despite this similarity, though, courts have generally not
found any requirement that an agency notify record subjects of their intent to disclose
personal information about them or that it "track down an individual about whom another has
requested information merely to obtain the former's permission to comply with the request."129
In a reverse FOIA case that reached the Court of Appeals for the Eighth Circuit, the
signers of a petition requesting a referendum to abolish a mandatory payment by pork
producers sued to prevent the Department of Agriculture from releasing their names pursuant
to a FOIA request.130 The Eighth Circuit agreed that, under the standards of the
Administrative Procedure Act,131 the Department of Agriculture's initial disclosure
determination was not in accordance with law and the names must be withheld.132
128 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. § 552 note (2006), and in FOIA Update, Vol. VIII,
No. 2, at 2-3; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted
4/9/04) (comparing the operation of the "submitter notice" provision to cases involving
personal privacy, where the individuals whose privacy "interests are being protected under
the FOIA rarely are aware of th[e FOIA] process, let alone involved in it").
129 Blakey v. DOJ, 549 F. Supp. 362, 365 (D.D.C. 1982) (Exemption 7(C)), aff'd in part &
vacated in part, 720 F.2d 215 (D.C. Cir. 1983); see Halpern v. FBI, No. 94-CV-365A, 2002 WL
31012157, at *10 (W.D.N.Y. Sept. 1, 2001) (magistrate's recommendation) (finding that there
exists "no authority requiring the Government to contact [individuals mentioned in
documents] for Exemption 6 to apply"), adopted, (W.D.N.Y. Oct. 17, 2001); cf. Hemenway, 601
F. Supp. at 1007 (placing burden on requester, not agency, to contact foreign correspondents
for requested citizenship information after receiving list of correspondents with office
telephone numbers and addresses, and noting that correspondents are "free to decline to
respond"). But see Associated Press v. DOD, 395 F. Supp. 2d 15, 16-17 & n.1 (S.D.N.Y. 2005)
(requiring agency to ask Guantanamo Bay detainees whether they wished their identifying
information to be released to plaintiff, based on fact that "detainees are in custody and
therefore readily available"); cf. War Babes v. Wilson, 770 F. Supp. 1, 4-5 (D.D.C. 1990)
(allowing agency sixty days to meet burden of establishing privacy interest by obtaining
affidavits from World War II servicemembers who objected to release of their addresses to
British citizens seeking to locate their fathers).
130 Campaign for Family Farms, 200 F.3d at 1182-84.
131 5 U.S.C. §§ 701-706 (2006) ("A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.");
see Chrysler v. Brown, 441 U.S. 281, 318 (1979) (deciding that judicial review based on
administrative record according to "arbitrary, capricious, or not in accordance with law"
standard applies to reverse FOIA cases).
132 Campaign for Family Farms, 200 F.3d at 1184-89; see also AFL-CIO v. Fed. Election
Comm'n, 177 F. Supp. 2d 48, 61-63 (D.D.C. 2001) (finding agency's refusal to invoke Exemption
7(C) to withhold identities of individuals in its investigative files to be "arbitrary, capricious
and contrary to law"), aff'd on other grounds, 333 F.3d 168 (D.C. Cir. 2003); Forest Guardians
v. U.S. Forest Serv., No. 99-0615, slip op. at 39-45 (D.N.M. Jan. 29, 2001) (setting aside agency's
(continued...)
Privacy Interest 453
In another decision involving the Department of Agriculture, arising in a reverse FOIA
context, the District Court for the Southern District of Texas found that an agency decision to
release identifying information about farmers and ranchers was incorrect and that this
information must be withheld.133 However, it went much further by issuing a permanent
injunction that prohibited the agency from releasing this sort of information in any form.134 On
appeal, the Court of Appeals for the Fifth Circuit concluded that the district court lacked the
jurisdiction to issue such a broad injunction because the Department of Agriculture had
already agreed to not release the information at issue;135 moreover, that injunction was found
to be overbroad because it prohibited disclosures outside the context of the FOIA request that
was at issue in that case.136
By contrast, a Native Hawaiian group brought suit to enjoin the Department of the Navy
from making public certain information concerning a large group of Native Hawaiian human
remains that had been inventoried pursuant to the Native American Graves Protection and
Repatriation Act.137 The court in that case held that the agency properly had determined that
the information did not qualify for Exemption 6 protection and that it could be released.138
Taking all of the aforementioned information into consideration when assessing
whether there is a protectible privacy interest, it is important to remember that if no
protectible privacy interest is ascertained, further analysis is unnecessary and the information
at issue must be disclosed. 139 If a protectible privacy interest is found to exist, the public
132(...continued)
decision to disclose personal financial information on escrow waiver forms that are used by
banks to record use of federal grazing permits as loan collateral) (reverse FOIA suit).
133 Doe v. Veneman, 230 F. Supp. 2d at 749-51.
134 Doe v. Veneman, No. 99-335, slip op. at 4-5 (W.D. Tex. Feb. 14, 2003).
135 Doe v. Veneman, 380 F.3d 807, 813-16 (5th Cir. 2004) ("Even though [the agency] decided
not to release personal . . . information [about participants in a livestock protection program],
the district court enjoined the release of personal information contained in the . . .
[management information system] database. By doing so, the district court acted without an
actual controversy and exceeded the legal basis for review under the APA.").
136 Id. at 818-20 (finding district court's injunction to be overbroad on several grounds).
137 Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1402-04 (D. Haw. 1995).
138 Id. at 1412-13 (concluding that Exemption 6 was not intended to protect information
pertaining to human remains, nor to protect information pertaining to large groups in which
individuals are not identifiable).
139 See Multi Ag, 515 F.3d at 1229 (stating that "'[i]f no significant privacy interest is
implicated . . . FOIA demands disclosure'" (quoting NARFE, 879 F.2d at 874)); Ripskis, 746 F.2d
at 3; Finkel, 2007 WL 1963163, at *9 (concluding that no balancing analysis was required "due
to the Court's determination that the [defendant] has failed to meet its heavy burden on the
issue of whether disclosure will invade the inspectors' privacy"); Holland, 1992 WL 233820, at
(continued...)
454 Exemption 6
interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure.140
Public Interest
Once it has been determined that a substantial privacy interest is threatened by a
requested disclosure, the second step in the balancing process comes into play; this stage of
the analysis requires an assessment of the public interest in disclosure.141 The burden of
establishing that disclosure would serve the public interest is on the requester.142 In DOJ v.
Reporters Committee for Freedom of the Press, the Supreme Court limited the concept of
public interest under the FOIA to the "core purpose" for which Congress enacted it: To "shed[]
light on an agency's performance of its statutory duties." 143 Information that does not directly
139(...continued)
*16 (stating that information must be disclosed when there is no significant privacy interest,
even if public interest is also de minimis).
140 See Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted' requires us
to balance the family's privacy interest against the public interest in disclosure.") (Exemption
7(C)).
141 See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C):
Step-by-Step Decisionmaking").
142 See Associated Press v. DOD, 549 F.3d 62, 66 (2d Cir. 2008) ("The requesting party bears
the burden of establishing that disclosure of personal information would serve a public
interest cognizable under FOIA."); Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 nn.8 &
13 (D.C. Cir. 1987); see also NARA v. Favish, 541 U.S. 157, 175 (2004) (instructing that the
balance does not even come "into play" when a requester has produced no evidence to
"warrant a belief by a reasonable person that the alleged Government impropriety might have
occurred") (Exemption 7(C)); Rogers v. Davis, No. 08-177, 2009 WL 213034, at *2 (E.D. Mo. Jan.
28, 2009) ("The burden of establishing that the disclosure would serve the public interest . .
. is on the requester."); Salas v. Office of Inspector General, 577 F. Supp. 2d 105, 112 (D.D.C.
2008) ("It is the requester's obligation to articulate a public interest sufficient to outweigh an
individual's privacy interest, and the public interest must be significant."); Lipsey v. EOUSA,
No. 06-423, 2007 WL 842956, at *5 (D.D.C. Mar. 19, 2007) ("Once a privacy interest is identified
under Exemption 7(C), the FOIA records requester must establish that (1) the public interest
is a significant one; and (2) the information is likely to advance that interest."); Prison Legal
News v. Lappin, 436 F. Supp. 2d 17, 22 (D.D.C. 2006) ("The burden of satisfying the 'public
interest standard' is on the requester.").
143 489 U.S. 749, 773 (1989); see Consumers' Checkbook Ctr. for the Study of Servs. v. HHS,
554 F.3d 1046, 1051 (D.C. Cir. 2009) ("The requested information must 'shed[ ] light on an
agency's performance of its statutory duties.'" (quoting Reporters Comm., 489 U.S. at 773)); see
also O'Kane v. U.S. Customs Serv., 169 F.3d 1308, 1310 (11th Cir. 1999) (per curiam) (affirming
that Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat.
3048, do not overrule Reporters Committee definition of "public interest"); cf. Favish, 541 U.S.
at 172 (reiterating the Reporters Committee "public interest" standard, and characterizing it
as "a structural necessity in a real democracy" that "should not be dismissed" – despite
(continued...) Public Interest 455
reveal the operations or activities of the federal government,144 the Supreme Court repeatedly
has stressed, "falls outside the ambit of the public interest that the FOIA was enacted to
serve."145 If an asserted public interest is found to qualify under this standard, it then must
143(...continued)
arguments by amici in the case that Reporters Committee had been "overruled" by the
Electronic FOIA amendments since 1996).
144 See Landano v. DOJ, 956 F.2d 422, 430 (3d Cir. 1992) (stating that there is "no FOIArecognized
public interest in discovering wrongdoing by a state agency") (Exemption 7(C)),
cert. denied on Exemption 7(C) question, 506 U.S. 868 (1992), & rev'd & remanded on other
grounds, 508 U.S. 165 (1993); Phillips v. Immigration & Customs Enforcement, 385 F. Supp. 2d
296, 305 (S.D.N.Y. 2005) (observing that, although privacy interests of government officials
may be lessened by countervailing public interest, that idea "would appear to be inapplicable
to former foreign government officials"); McMillian v. BOP, No. 03-1210, 2004 WL 4953170, at
7 n.11 (D.D.C. July 23, 2004) (ruling that the plaintiff's argument that an audiotape would
show the misconduct of the District of Columbia Board of Parole was irrelevant because "the
FOIA is designed to support the public interest in how agencies of the federal government
conduct business"); Garcia v. DOJ, 181 F. Supp. 2d 356, 374 (S.D.N.Y. 2002) (recognizing that
the "discovery of wrongdoing at a state as opposed to a federal agency . . . is not a goal of
FOIA") (Exemption 7(C)); see also FOIA Update, Vol. XII, No. 2, at 6 (advising that
"government" should mean federal government); cf. Lissner v. U.S. Customs Serv., 241 F.3d
1220, 1223 & n.2 (9th Cir. 2001) (finding a public interest in the agency's treatment of city
police officers arrested for smuggling steroids, but declining to "address the issue of whether
opening up state and local governments to scrutiny also raises a cognizable public interest
under the FOIA") (Exemption 7(C)).
145 Reporters Committee 489 U.S. at 775; see Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355,
355-56 (1997); DOD v. FLRA, 510 U.S. 487, 497 (1994); see also, e.g., Consumers' Checkbook,
554 F.3d at 1051 ("'[I]nformation about private citizens . . . that reveals little or nothing about
an agency's own conduct' does not serve a relevant public interest under FOIA." (quoting
Reporters Comm, 489 U.S. at 773)); Kishore v. DOJ, 575 F. Supp. 2d 243, 257 (D.D.C. 2008)
("Information about individuals that does not directly reveal the operations or activities of the
government-which is the focus of FOIA-'falls outside the ambit of the public interest that the
FOIA was enacted to serve' and may be protected under Exemption 7(C)." (quoting Reporters
Comm., 489 U.S. at 775)); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d
373, 382 (D.D.C. 2007) ("When the material in the government's control is a compilation of
information about private citizens, rather than a record of government actions, there is little
legitimate public interest that would outweigh the invasion of privacy because the information
reveals little or nothing about an agency's own conduct."); Piper v. DOJ, 428 F. Supp. 2d 1, 3
(D.D.C. 2006) (reasoning that "the public interest in knowing how the Department of Justice
. . . handles its investigations 'is served whether or not the names and identifying information
of third parties are redacted'"); Iowa Citizens for Cmty. Improvement v. USDA, 256 F. Supp. 2d
946, 951 (S.D. Iowa 2002) (declaring that while a presidential nominee's "fitness for public
office may be of great popular concern to the public," such concern "does not translate into a
real public interest that is cognizable . . . [under] the FOIA"); Gallant v. NLRB, No. 92-873, slip
op. at 8-10 (D.D.C. Nov. 6, 1992) (concluding that disclosure of names of individuals to whom
NLRB Member sent letters in attempt to secure reappointment would not add to
(continued...) 456 Exemption 6
be accorded some measure of value so that it can be weighed against the threat to privacy.146
And, as the Supreme Court in Favish emphasized, "the public interest sought to be advanced
[must be] a significant one."147
In Reporters Committee, the Supreme Court held that the requester's personal interest
is irrelevant to the public interest analysis. First, as the Court emphasized, the requester's
identity can have "no bearing on the merits of his or her FOIA request."148 In so declaring, the
145(...continued)
understanding of NLRB's performance of its duties), aff'd on other grounds, 26 F.3d 168 (D.C.
Cir. 1994); Andrews v. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (finding that although
release of an individual's address, telephone number, and place of employment might serve
a general public interest in the satisfaction of monetary judgments, "it does not implicate a
public interest cognizable under the FOIA"); FOIA Update, Vol. XVIII, No. 1, at 1; ("Supreme
Court Rules in Mailing List Case"); FOIA Update, Vol. X, No. 2, at 4, 6 ("OIP Guidance: Privacy
Protection Under the Supreme Court's Reporters Committee Decision").
146 See, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Ripskis v. HUD, 746 F.2d
1, 3 (D.C. Cir. 1981); Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d
856, 862 (D.C. Cir. 1981).
147 541 U.S. at 172; see also Martin v. DOJ, 488 F.3d 446, 458 (D.C. Cir. 2007) ("'In order to
trigger the balancing of public interests against private interests, a FOIA requester must (1)
show that the public interest sought to be advanced is a significant one, an interest more
specific than having the information for its own sake, and (2) show the information is likely to
advance that interest.'" (quoting Boyd v. DOJ, 475 F.3d 381, 387 (D.C. Cir. 2007))); Carpenter
v. DOJ, 470 F.3d 434, 440 (1st Cir. 2006) ("Because there is a valid privacy interest, the
requested documents will only be revealed where 'the public interest sought to be advanced
is a significant one, an interest more specific than having the information for its own sake.'"
(quoting Favish, 541 U.S. at 172)); Piper, 428 F. Supp. 2d at 3 ("The requester must
demonstrate that (1) the 'public interest sought to be advanced is a significant one' and (2) the
information requested 'is likely to advance that interest.'" (quoting Favish, 541 U.S. at 172)).
148 489 U.S. at 771; see also Favish, 541 U.S. at 170-72 (reiterating that "[a]s a general rule,
withholding information under FOIA cannot be predicated on the identity of the requester,"
but adding that this does not mean that a requester seeking to establish an overriding "public
interest" in disclosure of requested information "need not offer a reason for requesting the
information"); DOD v. FLRA, 510 U.S. at 496-501; Associated Press v. DOD, 554 F.3d 274, 285
(2d Cir. 2009) ("The public interest 'cannot turn on the purposes for which the request for
information is made,' and 'the identity of the requesting party has no bearing on the merits of
his or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at 771)); Carpenter, 470 F.3d at
440 ("Neither the specific purpose for which the information is requested nor the identity of
the requesting party has any bearing on the evaluation."); EduCap Inc. v. IRS, No. 07-2106,
2009 WL 416428, at *4 (D.D.C. Feb. 18, 2009) ("But under the FOIA, '[e]xcept for cases in which
the objection to disclosure is based on a claim of privilege and the person requesting
disclosure is the party protected by the privilege, the identity of the requesting party has no
bearing on the merits of his or her FOIA request.'" (quoting Reporters Comm., 489 U.S. at
771)); O'Neill v. DOJ, No. 05-0306, 2007 WL 983143, at *8 (E.D. Wis. Mar. 26, 2007) ("The
(continued...)
Public Interest 457
Court ruled that agencies should treat all requesters alike in making FOIA disclosure
decisions; the only exception to this, the Court specifically noted, is that of course an agency
should not withhold from a requester any information that implicates only that requester's
own interest.149 Furthermore, the "public interest" balancing required under the privacy
exemptions should not include consideration of the requester's "particular purpose" in making
the request.150 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 generally.151 This approach thus does not permit attention to the special
148(...continued)
requester's identity, purpose in making the request, and proposed use of the requested
information have no bearing on this balancing test.").
149 489 U.S. at 771; see, e.g., FOIA Update, Vol. X, No. 2, at 5 ("Privacy Protection Under the
Supreme Court's Reporters Committee Decision").
150 489 U.S. at 771-72; see also Favish, 541 U.S. at 172 (reiterating the Reporters Committee
principle that "citizens should not be required to explain why they seek the information" at
issue, but further elucidating that in a case where the requester's purported public interest
revolves around an allegation of government wrongdoing, "the usual rule that the citizen need
not offer a reason for requesting the information must be inapplicable"); DOD v. FLRA, 510 U.S.
at 496 (holding that “except in certain cases involving claims of privilege, ‘the identity of the
requesting party has no bearing on the merits of his or her FOIA request’”) (quoting Reporters
Comm., 489 U.S. at 773); Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1231 n.2 (D.C. Cir. 2008)
("Although Multi Ag may not want the information to check up on the government itself, the
use for which the requester seeks the information is not relevant for purposes of determining
the public interest under FOIA Exemption 6."); Consumers' Checkbook, 554 F.3d at 1051 ("The
requesting party's intended use for the information is irrelevant to our analysis."); Moore v.
United States, 602 F. Supp. 2d 189, 194 (D.D.C. 2009) ("The plaintiff's personal interest is, no
doubt, of paramount importance to him, but it is irrelevant to the FOIA, which by law is
sensitive only to a public interest."); Rogers, 2009 WL 213034, at *2 ("[T]he purposes for which
the FOIA request is made is irrelevant to whether an invasion of privacy is warranted.");
Thomas v. DOJ, 531 F. Supp. 2d 102, 108 (D.D.C. 2008) ("The purpose for which a requester
seeks federal government records is not relevant in a FOIA case.") (Exemption 7(C)). But see
Seized Prop. Recovery, Corp. v. Customs & Border Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007)
("The Court cannot ignore that Plaintiff's principal reason in seeking the disclosure of the
names and addresses of those persons whose property has been seized by Customs is to
solicit their business.") (Exemptions 6 and 7(C)).
151 489 U.S. at 772; see, e.g., Carpenter, 470 F.3d at 440 (observing that nature of requested
document and its relationship to opening agency action to light of public scrutiny determines
whether invasion of privacy is warranted); People for the Am. Way Found. v. Nat'l Park Serv.,
503 F. Supp. 2d 284, 304 (D.D.C. 2007) ("Accordingly, to assess the public interest, the Court
must examine 'the nature of the requested document and its relationship to the basic purpose
of [FOIA] to open agency action to the light of public scrutiny.'" (quoting Judicial Watch of
Florida, Inc. v. DOJ, 102 F. Supp. 2d 6, 17 (D.D.C. 2002))). 458 Exemption 6
circumstances of any particular FOIA requester. 152 As the Supreme Court stated in its
Reporters Committee decision, whether disclosure of a private document "is warranted must
turn on the nature of the requested document and its relationship to the basic purpose of the
Freedom of Information Act 'to open agency action to the light of public scrutiny’ rather than
on the particular purpose for which the document is being requested."153
Accordingly, a request made for the purpose of challenging a criminal conviction does
not further the public interest;154 nor does a request made in order to obtain or supplement
152 See 489 U.S. at 771-72 & n.20; see also Joseph W. Diemert, Jr. and Assocs. Co., L.P.A. v.
FAA, 218 Fed. App'x 479, 482 (6th Cir. 2007) (concluding that "the release of the requested
information is clearly an unwarranted invasion of personal privacy" because "[t]he disclosure
of such information would only serve the private interests of Diemert"); Schiffer v. FBI, 78 F.3d
1405, 1410-11 (9th Cir. 1996) (noting that individual interest in obtaining information about
oneself does not constitute public interest); Ubungen v. ICE, 600 F. Supp. 2d 9, 12 (D.D.C.
2009) (concluding that plaintiff's request for information about the whereabouts or fate of her
sister is "purely personal" and there is no public interest under the FOIA); Salas, 577 F. Supp.
2d at 111 (finding that plaintiff's argument that release of redacted information will expose an
agency's action pertaining to an incident involving plaintiff is insufficient because "[t]his one
incident, though of obvious importance to plaintiff, is not one of such magnitude that it
outweighs the agency employees' substantial privacy interest"); Summers v. DOJ, 517 F. Supp.
2d 231, 240 (D.D.C. 2007) (finding plaintiff's argument "that knowing the names of the FBI
agents in question would enable him to contact them and seek more information about [a
former agent]" insufficient since "the operative inquiry in determining whether disclosure of
a document implicating privacy issues is warranted is the nature of the requested document
itself, not the purpose for which the document is being requested"); Berger v. IRS, 487 F. Supp.
2d 482, 505 (D.N.J. 2007) (stating that disclosure of IRS employee's time sheets "would
primarily serve Plaintiffs' particular private interests as individual taxpayers. Disclosure
would not be 'instrumental in shedding light on the operations of government.'" (quoting Lewis
v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006))); Los Angeles Times
Commc'ns LLC v. Dep't of Labor, 483 F. Supp. 2d 975, 981 (C.D. Cal. 2007) ("Courts weigh the
public interest by considering the interest of the general public, not the private motives,
interests, or needs of a litigant."). But see Finkel v. Dep't of Labor, No. 05-5525, 2007 WL
1963163, at *9 (D.N.J. June 29, 2007) (noting that "plaintiff raises a legitimate public interest
in the information sought because his proposed research concerns OSHA's response to
beryllium sensitization amongst its own inspectors and the general workforce").
153 489 U.S. at 772 (quoting Rose, 425 U.S. at 372).
154 See Cole v. DOJ, No. 04-5329, 2005 U.S. App. LEXIS 7358, at *2-3 (D.C. Cir. Apr. 27, 2005)
(holding that requester's asserted public interest "that disclosure of the records is necessary
to show prosecutorial misconduct is insufficient to overcome Exemption 7(C), because
appellant has failed to put forward a 'meaningful evidentiary showing' that would 'warrant a
belief by a reasonable person that the alleged Government impropriety might have occurred'")
(quoting Favish, 541 U.S. at 174)); Amuso v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("Any
interest in the information for purposes of proving his innocence or proving that government
witnesses perjured testimony at his criminal trial does not overcome the individual's privacy
interest."); Lopez v. EOUSA, 598 F. Supp. 2d 83, 88 (D.D.C. 2009) (rejecting plaintiff's argument
(continued...) Public Interest 459
discovery in a private lawsuit serve the public interest.155 In fact, one court has observed that
if the requester truly had a great need for the records for purposes of litigation, he or she
should seek them in that forum, where it would be possible to provide them under an
appropriate protective order.156 Likewise, in Davy v. CIA, the requester's "personal crusade
to unearth . . . information" that was the subject of a book that he wrote was found not to
relate "in any way to a cognizable public interest."157 Furthermore, the Supreme Court has
found that requesters seeking to vindicate the policies of certain federal statutes, such as the
Federal Service Labor-Management Relations Statute, do not assert a valid public interest in
disclosure, as a requester's purposes are "irrelevant to the FOIA analysis."158
154(...continued)
that "the personal privacy exemptions must yield in the face of the plaintiff's belief that a Brady
violation infected his criminal trial"); Scales v. EOUSA, 594 F. Supp. 2d 87, 91 (D.D.C. 2009)
(stating "that a bald assertion of a Brady violation is insufficient to overcome the individual's
privacy interests in the records at issue"); Thomas v. DOJ, No. 04-112, 2006 WL 722141, at *3
(E.D. Tex. Mar. 15, 2006) ("[T]he interest of a private litigant is not a significant public
interest."); Billington v. DOJ, 11 F. Supp. 2d 45, 63 (D.D.C. 1998) (noting that "requests for
Brady material are 'outside the proper role of FOIA'" (quoting Johnson v. DOJ, 758 F. Supp. 2,
5 (D.D.C. 1991))), aff'd in pertinent part, 233 F.3d 581 (D.C. Cir. 2000).
155 See Carpenter, 470 F.3d at 441 ("There is no public interest in supplementing an
individual's request for discovery.") (criminal trial) (Exemption 7(C)); Horowitz v. Peace Corps,
428 F.3d 271, 278-79 (D.C. Cir. 2005) (civil litigation); Brown v. FBI, 658 F.2d 71, 75 (2d Cir.
1981) (private litigation); Ebersole v. United States, No. 06-2219, 2007 WL 2908725, at *6 (D.
Md. Sept. 24, 2007) ("Thus, FOIA requests are not meant to displace discovery rules.")
(Exemption 7(C)); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1197 (N.D. Cal. 2006) ("Here, plaintiff
expressly acknowledges that she wants the discrimination complaint files to use as possible
evidence in her employment discrimination case . . . [which is] not a significant public interest
warranting disclosure of private information."); Cappabianca v. Comm'r, U.S. Customs Serv.,
847 F. Supp. 1558, 1564 (M.D. Fla. 1994) (seeking records for job-related causes of action
insufficient); Harry v. Dep't of the Army, No. 92-1654, slip op. at 7-8 (D.D.C. Sept. 10, 1993)
(seeking records to appeal negative officer efficiency report insufficient); NTEU v. U.S. Dep't
of the Treasury, 3 Gov't Disclosure Serv. (P-H) ¶ 83,224, at 83,948 (D.D.C. June 17, 1983)
(requesting records for grievance proceeding insufficient).
156 Gilbey v. Dep't of the Interior, No. 89-0801, 1990 WL 174889, at *2 (D.D.C. Oct. 22, 1990);
see also Billington, 11 F. Supp. 2d at 64 (noting that proper forum for challenging alleged
illegal warrantless search is in district court where case was prosecuted); Bongiorno v. Reno,
No. 95-72143, 1996 WL 426451, at *4 (E.D. Mich. Mar. 19, 1996) (observing that the proper
place for a noncustodial parent to seek information about his child is the "state court that has
jurisdiction over the parties, not a FOIA request or the federal court system"); cf. Favish, 541
U.S. at 174 ("There is no mechanism under FOIA for a protective order allowing only the
requester to see whether the information bears out his theory, or for proscribing its general
dissemination.").
157 357 F. Supp. 2d at 88.
158 DOD v. FLRA, 510 U.S. at 499. But cf. Cooper Cameron Corp. v. U.S. Dep't of Labor, 280
(continued...) 460 Exemption 6
Similarly, the Courts of Appeals for the District of Columbia, Second, Third, and Tenth
Circuits have also found that the public interest derived from monitoring compliance with the
Davis-Bacon Act159 is not a public interest whose significance outweighs competing privacy
interests of third parties. 160 These four circuit courts have held that although there may be a
minimal public interest in facilitating the monitoring of compliance with federal labor statutes,
disclosure of personal information that reveals nothing "directly about the character of a
government agency or official" bears only an "attenuated . . . relationship to governmental
activity."161 Accordingly, it has been held that such an "attenuated public interest in disclosure
does not outweigh the construction workers' significant privacy interest in [their names and
addresses]."162 Faced with the same public interest question, the Ninth Circuit took a different
approach but reached the same result.163 The Court of Appeals for the Ninth Circuit found a
public interest in monitoring the agency's "diligence in enforcing Davis-Bacon," but found the
weight to be given that interest weakened when the public benefit was derived neither
directly from the release of the information itself nor from mere tabulation of data or further
research, but rather, from personal contact with the individuals whose privacy was at issue.164
A central purpose of the FOIA is to "check against corruption and to hold the governors
accountable to the governed."165 Indeed, disclosure of information that would inform the
public of violations of the public trust serves a strong public interest and is accorded great
158(...continued)
F.3d 539, 548-49 (5th Cir. 2002) (finding a "public interest in monitoring agencies' enforcement
of the law in specific instances") (Exemption 7(C)).
159 40 U.S.C. §§ 3141-3144, 3146-3147 (2006) (requiring federal contractors to pay their
laborers no less than the prevailing wages for comparable work in their geographical area).
160 See Sheet Metal Workers Int'l Ass'n, Local No. 19 v. VA, 135 F.3d 891, 903-05 (3d Cir.
1998); Sheet Metal Workers Int'l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 997-98 (10th
Cir. 1995); Painting & Drywall Work Pres. Fund, Inc. v. HUD, 936 F.2d 1300, 1303 (D.C. Cir.
1991); Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991).
161 Hopkins, 929 F.2d at 88; see Sheet Metal Workers Int'l Ass'n, Local No. 19, 135 F.3d at
903-05; Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98; Painting & Drywall
Work Pres. Fund, Inc., 936 F.2d at 1303.
162 Painting & Drywall Work Pres. Fund., Inc., 936 F.2d at 1303; see Sheet Metal Workers
Int'l Ass'n, Local No. 9, 63 F.3d at 997-98; Hopkins, 929 F.2d at 88.
163 Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of the Air Force, 26 F.3d 1479,
1484-86 (9th Cir. 1994).
164 Id. at 1485; see also Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98.
165 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also ACLU v. DOD, 543
F.3d 59, 66 (2d Cir. 2008), application to extend time to file petition for cert. granted, No.
08A1068 (J. Ginsburg, May 29, 2009); Multi Ag, 515 F.3d at 1232; News-Press v. DHS, 489 F.3d
1173, 1190 (11th Cir. 2007); Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983);
Wash. Post Co. v. HHS, 690 F.2d 252, 264 (D.C. Cir. 1982); Nat'l Ass'n of Atomic Veterans, Inc.
v. Dir., Def. Nuclear Agency, 583 F. Supp. 1483, 1487 (D.D.C. 1984).
Public Interest 461
weight in the balancing process.166 As the Tenth Circuit has held, "[t]he public interest in
learning of a government employee's misconduct increases as one moves up an agency's
hierarchical ladder."167 As a general rule, demonstrated wrongdoing of a serious and
intentional nature by a high-level government official is of sufficient public interest to
outweigh almost any privacy interest of that official.168
By contrast, both serious and less serious misconduct by low-level agency employees
generally have not been considered of sufficient public interest to outweigh the privacy
166 See Favish, 541 U.S. at 172-73 (stressing that there should be a "necessary nexus
between the requested information and the asserted public interest that would be advanced
by disclosure"); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish"
(posted 4/9/04) (discussing the importance of establishing an "actual connection" between the
particular information at issue and the qualifying public interest articulated by the requester).
167 Trentadue v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir. 2007); see, e.g., Cowdery,
Ecker & Murphy, LLC v. Dep't of Interior, 511 F. Supp. 2d 215, 218 (D. Conn. 2007) ("[T]he
Second Circuit found that the official in question's 'high rank, combined with his direct
responsibility for the serious allegations examined . . . tilts strongly in favor of disclosure.'"
(quoting Perlman v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002))).
168 See, e.g., Perlman v. DOJ, 312 F.3d 100, 107 (2d Cir. 2002) (noting subject of request
involved INS general counsel investigated for allegedly granting improper access and
preferential treatment to former INS officials with financial interests in various visa investment
firms, and finding that government employee's high rank and responsibility for serious
allegations tilted the balance strongly in favor of disclosure), cert. granted, vacated &
remanded, 541 U.S. 970 (2004), reinstated after remand, 380 F.3d 110 (2d Cir. 2004); Stern v.
FBI, 737 F.2d 84, 93-94 (D.C. Cir. 1984) (name of high-level FBI official censured for deliberate
and knowing misrepresentation) (Exemption 7(C)); Ferri v. Bell, 645 F.2d 1213, 1218 (3d Cir.
1981) (finding attempt to expose alleged deal between prosecutor and witness to be in public
interest) (Exemption 7(C)), vacated & reinstated in part on reh'g, 671 F.2d 769 (3d Cir. 1982);
Columbia Packing Co. v. USDA, 563 F.2d 495, 499 (1st Cir. 1977) (information about federal
employees found guilty of accepting bribes); Cowdery, 511 F. Supp. 2d at 221 (D. Conn. 2007)
(performance evaluation information pertaining to high ranking federal employee charged
with wrongdoing); Chang v. Dep't of the Navy, 314 F. Supp. 2d 35, 42-45 (D.D.C. 2004)
(information about Naval Commander's nonjudicial punishment for involvement in accident
at sea) (Privacy Act "wrongful disclosure" suit); Wood v. FBI, 312 F. Supp. 2d 328, 345-51 (D.
Conn. 2004) (identifying information linking FBI Supervisory Special Agent's name with
specific findings and disciplinary action taken against him), aff'd in part & rev'd in part, 432
F.3d 78 (2d Cir. 2005); Lurie v. Dep't of the Army, 970 F. Supp. 19, 39-40 (D.D.C. 1997)
(information concerning "mid- to high-level" Army medical researcher whose apparent
misrepresentation and misconduct contributed to appropriation of $20,000,000 for particular
form of AIDS research); Sullivan v. VA, 617 F. Supp. 258, 260-61 (D.D.C. 1985) (reprimand of
senior official for misuse of government vehicle and failure to report accident) (Privacy Act
"wrongful disclosure" suit/Exemption 7(C)); Cong. News Syndicate v. DOJ, 438 F. Supp. 538,
544 (D.D.C. 1977) (misconduct by White House staffers). 462 Exemption 6
interest of the employee.169 The D.C. Circuit has held that there is not likely to be strong
public interest in disclosure of the names of censured employees when the case has not
"occurred against the backdrop of a well-publicized scandal" that has resulted in "widespread
169 See, e.g., Rose, 425 U.S. at 381 (protecting names of cadets found to have violated
Academy honor code); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d
1021, 1025 (9th Cir. 2008) ("[W]e have placed emphasis on the employee's position in her
employer's hierarchical structure as 'lower level officials . . . generally have a stronger interest
in personal privacy than do senior officials.'") (quoting Dobronski v. FCC, 17 F.3d 275, 280 n.4
(9th Cir. 1994)); Trentadue, 501 F.3d at 1234 (concluding that agency properly withheld
identifying information about employees because "[e]ach of these individuals was a low-level
employee who committed serious acts of misconduct" and even though "[t]he public interest
in learning how law enforcement agencies dealt with these individuals is very high," the
"[d]isclos[ure of] the names of the employees . . . would shed little light on the operation of
government"); Hoyos v. United States, No. 98-4178, slip op. at 3 (11th Cir. Feb. 1, 1999) (finding
"little public interest in access to [identities of individuals fired from the VA], especially when
the reasons for removal -- the information that truly bears upon the agency's conduct, which
is the focus of FOIA's concern -- were readily made available"); Beck v. DOJ, 997 F.2d 1489,
1493 (D.C. Cir. 1993) ("The identity of one or two individual relatively low-level government
wrongdoers, released in isolation, does not provide information about the agency's own
conduct.") (Exemptions 6 and 7(C)); Stern, 737 F.2d at 94 (protecting names of mid-level
employees censured for negligence); Chamberlain v. Kurtz, 589 F.2d 827, 842 (5th Cir. 1979)
(protecting names of disciplined IRS agents); MacLean v. U.S. Dep't of Army, No. 05-1519, 2007
WL 935604, at *13 (S.D. Cal. Mar. 6, 2007) ("Moreover, 'lower level officials . . . generally have
a stronger interest in personal privacy than do senior officials,' . . . the public's interest in
misconduct by a lower level official is weaker than its interest in misconduct by a senior
official" (quoting Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir. 1994))) (Exemptions 6 and
7(C)); Kimmel v. DOD, No. 04-1551, 2006 WL 1126812, at *3 (D.D.C. Mar. 31, 2006) (protecting
names of civilian personnel below level of office director and of military personnel below rank
of colonel (or captain in Navy); finding that disclosure of names would not shed any light on
subject matter of FOIA request seeking release of documents related to posthumous
advancement of Rear Admiral Husband E. Kimmel to rank of admiral on retired list of Navy);
Buckley v. Schaul, No. 03-03233, slip op. at 8-9 (W.D. Wash. Mar. 8, 2004) (protecting identity
of regional counsel alleged to have violated Privacy Act) (Exemptions 6 and 7(C)), aff'd, 135
F. App'x 929 (9th Cir. 2005); Chang, 314 F. Supp. 2d at 44-45 (protecting names and results of
punishment of lower-level officers involved in collision of Navy vessel with another ship);
Jefferson v. DOJ Office of the Inspector General, No. 01-1418, slip op. at 11 (D.D.C. Nov. 14,
2003) ("A [nonsupervisory] Attorney-Advisor is not a government employee whose rank is so
high that the public interest in disclosure of information pertaining to her performance of
official government functions outweighs her personal privacy interest in protecting
information about the details of a law enforcement investigation of her alleged misconduct.")
(Exemption 7(C)); Butler v. DOJ, No. 86-2255, 1994 WL 55621, at *10 (D.D.C. Feb. 3, 1994)
(protecting identity of FBI Special Agent who received "mild admonishment" for conduct that
"was not particularly egregious"); Cotton v. Adams, 798 F. Supp. 22, 26-27 (D.D.C. 1992)
(finding that release of IG reports on conduct of low-level Smithsonian Institution employees
would not allow public to evaluate Smithsonian's performance of mission); Heller v. U.S.
Marshals Serv., 655 F. Supp. 1088, 1091 (D.D.C. 1987) (protecting names of agency personnel
found to have committed "only minor, if any, wrongdoing") (Exemption 7(C)). Public Interest 463
knowledge" that certain employees were disciplined. 170 As such, courts customarily have
extended protection to the identities of mid- and low-level federal employees accused of
misconduct, as well as to the details and results of any internal investigations into such
allegations of impropriety.171 The D.C. Circuit reaffirmed this position in Dunkelberger v.
170 Beck, 997 F.2d at 1493-94; see Chin v. U.S. Dep't of the Air Force, No. 97-2176, slip op. at
3 (W.D. La. June 24, 1999) (finding a significant privacy interest in records that "document[]
personal and intimate incidents of misconduct [that have] not previously been a part of the
public domain"), aff'd per curiam, No. 99-31237 (5th Cir. June 15, 2000).
171 See, e.g., Stern, 737 F.2d at 94 (protecting identities of mid-level employees censured for
negligence, but requiring disclosure of identity of high-level employee found guilty of serious,
intentional misconduct) (Exemption 7(C)); Chamberlain, 589 F.2d at 841-42 (protecting names
of disciplined IRS agents); MacLean, 2007 WL 935604, at *10-12 (protecting identity of military
attorneys who issued illegal subpoenas in court marshal proceedings); Cawthon v. DOJ, No.
05-0567, 2006 WL 581250, at *2-4 (D.D.C. Mar. 9, 2006) (protecting information about two
Federal Bureau of Prisons doctors, including records pertaining to malpractice and disciplinary
matters); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., No. 05-6015, 2005 WL
3488453, at *4 (D. Or. Dec. 21, 2005) ("USFS employees are publically employed . . . [and] the
names of the employees . . . holds little or no expectation of privacy. The expectation,
however, increases when attached to stigmatizing events."), aff'd, 524 F.3d 1021 (9th Cir.
2008); Mueller v. U.S. Dep't of the Air Force, 63 F. Supp. 2d 738, 743-45 (E.D. Va. 1999)
(unsubstantiated allegations of prosecutorial misconduct) (Exemptions 6 and 7(C)); Chin, No.
97-2176, slip op. at 3-5 (W.D. La. June 24, 1999) (investigations of fraternization), aff'd per
curiam, No. 99-31237 (5th Cir. June 15, 2000); Lurie, 970 F. Supp. at 40 (identities of HIV
researchers who played minor role in possible scientific misconduct), appeal dismissed
voluntarily, No. 97-5248 (D.C. Cir. Oct. 22, 1997); McLeod v. Peña, No. 94-1924, slip op. at 4-6
(D.D.C. Feb. 9, 1996) (investigation of Coast Guard officer for alleged use of government
resources for personal religious activities) (Exemption 7(C)), summary affirmance granted sub
nom. McLeod v. U.S. Coast Guard, No. 96-5071, 1997 WL 150096 (D.C. Cir. Feb. 10, 1997);
Cotton, 798 F. Supp. at 25-28 (report of Inspector General's investigation of low-level
employees of Smithsonian Institution museum shops); Schonberger v. NTSB, 508 F. Supp. 941,
944-45 (D.D.C.) (results of complaint by employee against supervisor), aff'd, 672 F.2d 896 (D.C.
Cir. 1981) (unpublished table decision); Iglesias v. CIA, 525 F. Supp. 547, 561 (D.D.C. 1981)
(agency attorney's response to Office of Professional Responsibility misconduct allegations);
see also McCutchen v. HHS, 30 F.3d 183, 187-89 (D.C. Cir. 1994) (identities of both federally
and privately employed scientists investigated for possible scientific misconduct protected)
(Exemption 7(C)); cf. Heller, 655 F. Supp. at 1091 ("extremely strong interest" in protecting
privacy of individual who cooperated with internal investigation of possible criminal activity
by fellow employees). But see Schmidt v. U.S. Air Force, 2007 WL 2812148, at *11 (C.D. Ill.
Sept. 20, 2007) (finding that although Air Force officer had a privacy interest in keeping
information about his discipline confidential, competing public interest in deadly friendly-fire
incident with international effects outweighed that privacy interest and shed light on how the
United States government was holding its pilot accountable); Gannett River States Publ'g
Corp. v. Bureau of the Nat'l Guard, No. J91-0455, 1992 WL 175235, at *5-6 (S.D. Miss. Mar. 2,
1992) (holding that given previous disclosure of investigative report of helocasting accident,
disclosure of actual discipline received would result in "insignificant burden" on soldiers'
privacy interests). 464 Exemption 6
DOJ172 in which it held that, even post-Reporters Committee, the D.C. Circuit's decision in
Stern v. FBI provides guidance for the balancing of the privacy interests of federal employees
found to have committed wrongdoing against the public interest in shedding light on agency
activities.173
Additionally, any asserted "public interest" in the disclosure of mere allegations of
wrongdoing cannot outweigh an individual's privacy interest in avoiding unwarranted
association with such allegations. 174 Indeed, in Favish, the Supreme Court held that mere
172 906 F.2d 779, 782 (D.C. Cir. 1990) (upholding FBI's refusal to confirm or deny existence
of letters of reprimand or suspension for alleged misconduct by undercover agent) (Exemption
7(C)); Favish, 541 U.S. at 175 (noting that "[a]llegations of government misconduct are 'easy
to allege and hard to disprove'" (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998)).
173 Dunkelberger, 906 F.2d at 781; see also Ford v. West, No. 97-1342, 1998 WL 317561, at
*2-3 (10th Cir. June 12, 1998) (protecting information about discipline of coworker and finding
that redacted information would not inform public about agency's response to racial
harassment claim); Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998) (protecting information
about investigation of staff-level attorney for allegations of unauthorized disclosure of
information to media) (Exemption 7(C)); Beck, 997 F.2d at 1494 (upholding agency's refusal to
either confirm or deny existence of records concerning alleged wrongdoing of named DEA
agents) (Exemptions 6 and 7(C)); Hunt v. FBI, 972 F.2d 288-90 (9th Cir. 1992) (protecting
contents of investigative file of nonsupervisory FBI agent accused of unsubstantiated
misconduct) (Exemption 7(C)); Early v. OPR, No. 95-0254, slip op. at 2-3 (D.D.C. Apr. 30, 1996)
(upholding OPR's refusal to confirm or deny existence of complaints or investigations
concerning performance of professional duties of one United States district court judge and
two AUSAs) (Exemption 7(C)), summary affirmance granted, No. 96-5136, 1997 WL 195523
(D.C. Cir. Mar. 31, 1997).
174 See, e.g., Sussman v. USMS, 494 F.3d 1106, 1115 (D.C. Cir. 2007) (finding that USMS
properly protected the privacy of various individuals stressing that "[w]hile we find [plaintiff]
did in fact allege misconduct, his bare and undeveloped allegations would not warrant a belief
by a reasonable person that impropriety might have occurred") (Exemption 7(C)); McCutchen,
30 F.3d at 187-89 (protecting identities of scientists found not to have engaged in alleged
scientific misconduct) (Exemption 7(C)); Hunt, 972 F.2d at 288-90 (protecting investigation of
named FBI agent cleared of charges of misconduct) (Exemption 7(C)); Dunkelberger, 906 F.2d
at 781-82 (same) (Exemption 7(C)); Carter, 830 F.2d at 391 (protecting identities of attorneys
subject to disciplinary proceedings, which were later dismissed); Bullock v. FBI, 587 F. Supp.
2d 250, 253 (D.D.C. 2008) ("Absent strong evidence of official misconduct, the identities of law
enforcement officials are protected by Exemption 7(C) . . . . Plaintiff's unsupported allegations
of official misconduct do not outweigh the privacy interests of these law enforcement
officials.") (Exemption 7(C)); Barbosa v. DEA, 541 F. Supp. 2d 108, 111-12 (D.D.C. 2008) (stating
that plaintiff must present "'more than a bare suspicion' of official misconduct; '[r]ather, the
requester must produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred' . . . For it is '[o]nly when [such evidence
is] produced [that] there [will] exist a counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested records'" (quoting Favish, 541 U.S.
at 174-75)); Buckley, No. 03-03233, slip op. at 10-11 (W.D. Wash. Mar. 8, 2004) ("If these files
(continued...) Public Interest 465
allegations of wrongdoing are "insufficient" to satisfy the "public interest" standard required
under the FOIA.175 The Court observed that if "bare allegations" could be sufficient to satisfy
the public interest requirement, then the exemption would be "transformed . . . into nothing
more than a rule of pleading."176 Indeed, the Supreme Court has opined that if mere
allegations were all that were necessary to override a personal privacy interest, then that
privacy interest would become worthless.177 Moreover, the Supreme Court in Favish pointedly
recognized that "allegations of misconduct are 'easy to allege and hard to disprove'"178 and that
174(...continued)
were released, the public disclosure of allegations of impropriety against [regional counsel]
and whomever else, without any findings of actual misconduct, could scar employees'
personal and professional reputations.") (Exemptions 6 and 7(C)), aff'd, 135 F. App'x 929 (9th
Cir. 2005); Edmonds v. FBI, 272 F. Supp. 2d 35, 52 (D.D.C. 2003) (protecting identities of FBI
clerical employees and FBI Special Agents because there was no reason to believe that their
identities would shed light on alleged misconduct in FBI's language division) (Exemptions 6
and 7(C)), appeal dismissed voluntarily, No. 03-5364, 2004 WL 2806508 (D.C. Cir. Dec. 7, 2004);
McQueen v. United States, 264 F. Supp. 2d 502, 533-34 (S.D. Tex. 2003) (deciding that public
interest would not be served by "disclosure of information regarding unsubstantiated
allegations" made against three government employees) (Exemptions 6 and 7(C)), aff'd, 100
F. App'x 964 (5th Cir. 2004) (per curiam); Pontecorvo v. FBI, No. 00-1511, slip op. at 40 (D.D.C.
Sept. 30, 2001) (declining to order disclosure of the identity of an FBI Special Agent under
investigation by the FBI Office of Professional Responsibility when the investigation was
instituted solely "because of Plaintiff's own written request, not the independent
determination of the Bureau") (Exemption 7(C)). But see Dobronski v. FCC, 17 F.3d 275, 278-80
(9th Cir. 1994) (ordering release of employee's sick leave slips despite fact that requester's
allegations of abuse of leave time were wholly based upon unsubstantiated tips).
175 541 U.S. at 173; see also Harrison v. BOP, No. 07-1543, 2009 WL 1163909, *8 (D.D.C. May
1, 2009) ("Plaintiff's vague allegations of 'fabricated' charges, 'illegal and conspiratorial conduct'
between a prison counselor and the BOP officer who screened [plaintiff's] telephone call, his
non-specific reference to 'corrupt acts and practices of federal employees,' and his implied
suspicions as to the qualifications of the disciplinary hearing officer, do not rise to the level
required by the rule articulated in Favish." (quoting plaintiff's filing) (internal citations
omitted)); Aguirre v. SEC, 551 F. Supp. 2d 33, 56 (D.D.C. 2008) ("A 'bare suspicion' of agency
misconduct is insufficient; the FOIA requester 'must produce evidence that would warrant a
belief by a reasonable person that the alleged Government impropriety might have occurred.'"
(quoting Favish, 541 U.S. at 174)).
176 541 U.S. at 174.
177 See U.S. Dep't of State v. Ray, 502 U.S. 164, 179 (1991) ("If a totally unsupported
suggestion that the interest in finding out whether Government agents have been telling the
truth justified disclosure of private materials, Government agencies would have no defenses
against requests for production of private information."); see also Favish, 541 U.S. at 173
(emphasizing importance of "practical[ity]" in privacy-protection decisionmaking).
178 541 U.S. at 175 (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998)); see also Ray,
502 U.S. at 178-79 (holding that there is presumption of legitimacy given to government
(continued...) 466 Exemption 6
courts therefore must require a "meaningful evidentiary showing" by the FOIA requester.179
Therefore, the Court adopted a higher standard for evaluation of "agency wrongdoing" claims
and held that "the requester must establish more than a bare suspicion in order to obtain
disclosure. Rather, the requester must produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might have occurred."180 Indeed,
several courts have applied this heightened standard to allegations of government misconduct
and repeatedly have found that plaintiffs have not provided the requisite evidence required
by Favish.181
178(...continued)
conduct, and noting that privacy interests would be worthless if only bare allegations could
overcome these interests); O'Neill, 2007 WL 983143, at *9 (stating that "court must insist on
a meaningful evidentiary showing").
179 541 U.S. at 175; Martin, 488 F.3d at 458 (concluding that "'[u]nsubstantiated assertions
of government wrongdoing . . . do not establish a meaningful evidentiary showing'" (quoting
Boyd v. DOJ, 475 F.3d 381, 388 (D.C. Cir. 2007))); Jarvis v. ATF, No. 07-111, 2008 WL 2620741,
at *13 (N.D. Fla. June 30, 2008) ("When the significant asserted public interest is to uncover
Government misfeasance, there must be a meaningful evidentiary showing.").
180 541 U.S. at 174; Associated Press v. DOD, 554 F.3d at 289 (Exemptions 6 and 7(C)); Lane
v. Department of Interior, 523 F.3d 1128, 1138 (9th Cir. 2008) (finding that because interest in
disclosure involved government employee's alleged misconduct, requester was required to
"produce evidence that would warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred" (quoting Favish, 541 U.S. at 174)); Judicial
Watch v. DHS, 598 F. Supp. 2d 93, 97 (D.D.C. 2009) ("The extra burden established by Favish
only applies when the requester asserts government negligence or improper conduct.");
Martin, 488 F.3d at 458 (stating that "'[i]f the public interest is government wrongdoing, then
the requester must produce evidence that would warrant a belief by a reasonable person that
the alleged Government impropriety might have occurred'" (quoting Boyd, 475 F.3d at 387));
Aguirre, 551 F. Supp. 2d at 56 ("A 'bare suspicion' of agency misconduct is insufficient."
(quoting Favish, 541 U.S. at 174)).
181 See Associated Press v. DOD, 554 F.3d at 289-92 (concluding that redactions of the
detainees' identifying information was proper because plaintiff failed to produce sufficient
evidence of impropriety by DOD) (Exemption 7(C)); Carpenter, 470 F.3d at 442 (declaring that
valid public interest in disclosure of information relating to allegations of impropriety on part
of government officials must be supported by more than mere suspicion improper actions
occurred) (Exemption 7(C)); Wood v. FBI, 432 F.3d 78, 89 (2d Cir. 2005) (finding that plaintiff's
"unsupported allegations" do not overcome "presumption of legitimacy . . . [of] government
actions"); Horowitz, 428 F.3d at 278 & n.1 (finding that the plaintiff offered "no further details
to support these extremely speculative allegations" and did not "overcome the presumption
that the Peace Corps' [ ] official conduct was proper"); Oguaju v. United States, 378 F.3d 1115,
1117 (D.C. Cir. 2004) (ruling that plaintiff "failed to make the requisite showing" required by
Favish), reh'g denied & amended, 386 F.3d 273 (D.C. Cir. 2004) (per curiam); Long v. OPM, No.
05-1522, 2007 WL 2903924, at *18 (N.D.N.Y. Sept. 30, 2007) ("Although plaintiffs have
submitted declarations from reporters who . . . have uncovered government wrongdoing,
plaintiffs submit no actual evidence of wrongdoing, thus this factor weighs against
(continued...)
Public Interest 467
Moreover, even when the existence of an investigation of misconduct has become
publicly known, the accused individual ordinarily has an overriding privacy interest in not
having the further details of the matter disclosed. 182 And even where misconduct actually is
found, the agency is not necessarily required to disclose every piece of information pertaining
to the investigation.183
Public oversight of government operations is the essence of public interest under the
FOIA. Courts have found that requesters claiming such an interest must support their claim
by more than mere allegation and must show how the public interest would be served by
disclosure in the particular case.184
181(...continued)
disclosure.").
182 See Forest Serv. Employees, 524 F.3d at 1025 (protecting identities of low-level and midlevel
employees because "the public association of the employees with this tragedy would
subject them to the risk of embarrassment in their official capacities and in their personal
lives"); Kimberlin v. DOJ, 139 F.3d 944, 949 (D.C. Cir. 1998) (concluding that AUSA "did not,
merely by acknowledging the investigation and making a vague references to its conclusion,
waive all his interest in keeping the contents of the OPR file confidential") (Exemption 7(C));
Mueller, 63 F. Supp. 2d at 743 (declaring that even given pre-existing publicity, "individuals
have a strong interest in not being associated with alleged wrongful activity, particularly
where, as here, the subject of the investigation is ultimately exonerated") (Exemptions 6 and
7(C)); see also Bast v. FBI, 665 F.2d 1251, 1255 (D.C. Cir. 1981) (explaining that publicity over
an alleged transcript-alteration incident actually could exacerbate the harm to a privacy
interest because "[t]he authoritative nature of such findings threatens much greater damage
to an individual's reputation than newspaper articles or editorial columns" and "renewed
publicity brings with it a renewed invasion of privacy"); Chin, No. 97-2176, slip op. at 5 (W.D.
La. June 24, 1999) (finding that the fact "that some of the events are known to certain
members of the public . . . is insufficient to place this record for dissemination into the public
domain").
183 See, e.g., Office of Capital Collateral Counsel, N. Region of Fla. v. DOJ, 331 F.3d 799, 803
04 (11th Cir. 2003) (protecting AUSA's "private thoughts and feelings concerning her
misconduct . . . and its effect on her, her family, and her career"); see also Kimberlin, 139 F.3d
at 949 (finding that an AUSA "still has a privacy interest . . . in avoiding disclosure of the
details of the investigation," despite the AUSA's acknowledgment that he was disciplined
after the investigation); Halloran v. VA, 874 F.2d 315, 320-22 (5th Cir. 1989) (noting that
employees of government contractor investigated by government for fraud did not lose privacy
interests in comments transcribed in government investigatory files) (Exemption 7(C)).
184 See Accuracy in Media, Inc. v. Nat'l Park Serv., 194 F.3d 120, 124 (D.C. Cir. 1999)
(discounting inconsistencies in multiple agency reports from complex crime scene as "hardly
so shocking as to suggest illegality or deliberate government falsification") (Exemption 7(C));
Schiffer, 78 F.3d at 1410 (rejecting public interest argument absent evidence suggesting
wrongdoing by FBI); Computer Prof'ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897,
904-05 (D.C. Cir. 1996) ("[T]he public interest is insubstantial unless the requester puts
forward compelling evidence that the agency denying the FOIA request is engaged in illegal
(continued...) 468 Exemption 6
Accordingly, assertions of "public interest" are scrutinized by the courts to ensure that
they legitimately warrant the overriding of important privacy interests.185 As is discussed in
more detail below, sometimes the courts do find that the public interest warrants overriding
the privacy interest at stake. 186 As stated by the Second Circuit in Hopkins v. HUD, "[t]he
184(...continued)
activity and shows that the information sought is necessary in order to confirm or refute that
evidence.") (Exemption 7(C)); Halloran, 874 F.2d at 323 (finding that while there is general
public interest in the government's interaction with federal contractors, "merely stating that
the interest exists in the abstract is not enough"; requesters must show how that interest
would be served by compelling disclosure); LaRouche v. DOJ, No. 90-2753, slip op. at 22-23
(D.D.C. Nov. 17, 2000) ("[W]hile the public interest in possible corruption is great, mere
inferences of a violation carry little weight."); Wichlacz v. Dep't of Interior, 938 F. Supp. 325,
333 (E.D. Va. 1996) (observing that plaintiff "has set forth no evidence to buttress his bald
allegations" of cover-up in investigation of death of former Deputy White House Counsel, a
theory substantially undercut by then-ongoing Independent Counsel investigation), aff'd, 114
F.3d 1178 (4th Cir. 1997) (unpublished table decision); Allard v. HHS, No. 4:90-CV-156, slip op.
at 10-11 (W.D. Mich. Feb. 14, 1992) (finding that "conclusory allegations" of plaintiff -- a
prisoner with violent tendencies -- concerning ex-wife's misuse of children's social security
benefits do not establish public interest), aff'd, 972 F.2d 346 (6th Cir. 1992) (unpublished table
decision).
185 See, e.g., Favish, 541 U.S. at 172 (stressing the requirement that "the public interest
sought to be advanced [be] a significant one"); Consumers' Checkbook, 554 F.3d at 1056
(concluding after careful scrutinizing of the various assertions of public interest asserted by
plaintiff, that "the requested data does not serve any FOIA-related public interest in
disclosure").
186 See Detroit Free Press, Inc. v. DOJ, 73 F.3d 93, 97-98 (6th Cir. 1996) (finding that the
agency's disclosure of the mug shots of indicted individuals during the course of an ongoing
criminal proceeding could reveal an "error in detaining the wrong person for an offense" or the
"circumstances surrounding an arrest and initial incarceration"); Rosenfeld v. DOJ, 57 F.3d 803,
811-12 (9th Cir. 1995) (concluding that disclosure of the identities of individuals investigated
would reveal whether the "FBI abused its law enforcement mandate by overzealously
investigating a political protest movement to which some members of the government may
then have objected") (Exemption 7(C)); Gordon v. FBI, 388 F. Supp. 2d 1028, 1041 (N.D. Cal.
2005) (finding public interest served by disclosure of individual agency employee names
because their names show "who are making important government policy") (Exemptions 6 and
7(C)); Lardner v. DOJ, No. 03-0180, 2005 WL 758267, at *17 (D.D.C. Mar. 31, 2005) (finding that
the public interest in analyzing the "circumstances in which the executive chooses to grant
or deny a pardon and the factors that bear on that decision" would be served by the release
of the names of unsuccessful pardon applicants); Baltimore Sun v. U.S. Marshals Serv., 131 F.
Supp. 2d 725, 729-30 (D. Md. 2001) (declaring that "[a]ccess to the names and addresses [of
purchasers of seized property] would enable the public to assess law enforcement agencies'
exercise of the substantial power to seize property, as well as USMS's performance of its
duties regarding disposal of forfeited property") (Exemption 7(C)), appeal dismissed
voluntarily, No. 01-1537 (4th Cir. June 25, 2001); Judicial Watch v. DOJ, 102 F. Supp. 2d 6, 17
18 (D.D.C. 2000) (allowing deletion of home addresses and telephone numbers, but ordering
(continued...)
Public Interest 469
simple invocation of a legitimate public interest . . . cannot itself justify the release of personal
information. Rather, a court must first ascertain whether that interest would be served by
disclosure." 187 The Second Circuit in Hopkins found a legitimate public interest in monitoring
HUD's enforcement of prevailing wage laws generally, but found that disclosure of the names
and addresses of workers employed on HUD-assisted public housing projects would shed no
light on the agency's performance of that duty in particular.188 The Ninth Circuit in Minnis v.
186(...continued)
release of identities of individuals who wrote to Attorney General about campaign finance or
Independent Counsel issues); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp.
2d 1088, 1093 (D. Or. 1998) (finding that public interest in knowing how agency is enforcing
land-management laws is served by release of names of cattle owners who violated federal
grazing laws) (Exemption 7(C)); Maples v. USDA, No. F 97-5663, slip op. at 14 (E.D. Cal. Jan.
13, 1998) (finding that release of names and addresses of permit holders would show public
how permit process works and eliminate "suspicions of favoritism in giving out permits" for
use of federal lands).
187 929 F.2d at 88 (citing Halloran, 874 F.2d at 323 (observing that "merely stating that the
interest exists in the abstract is not enough; rather, the court should have analyzed how that
interest would be served by compelling disclosure")); see also Favish, 541 U.S. at 172-73
(highlighting "the nexus required between the requested documents and the purported public
interest served by disclosure"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of an IRS
agent's time sheets would do little to serve plaintiff's asserted public interest that the records
would shed light on the operations of the IRS in conducting investigations of taxpayers).
188 929 F.2d at 88; see also Associated Press v. DOD, 554 F.3d at 293 ("We conclude that the
public interest in evaluating whether DOD properly followed-up on the detainees' claims of
mistaken identity have been adequately served by the disclosure of the redacted information
and that disclosing names and addresses of the family members would constitute a clearly
unwarranted invasion of the family members' privacy interest because such disclosure would
not shed any light on DOD's action in connection with the detainees' claims at issue here.");
Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1083 (6th Cir. 1998) (finding that
information about individual taxpayers does not serve any possible public interest in "how the
IRS exercises its power over the collection of taxes"); Grandison v. DOJ, 600 F. Supp. 2d 109,
117 (D.D.C. 2009) ("Release of the names of law enforcement personnel, witnesses, experts,
targets of investigation, court reporters and other court personnel, sheds no light on the
working of the government."); Anderson v. DOJ, 518 F. Supp. 2d 1, 14 (D.D.C. 2007) (protecting
retired DEA Special Agent's home address because release of the address "in no way would
further FOIA's basic purpose"); Sutton v. IRS, No. 05-7177, 2007 WL 30547, at *6 (N.D. Ill. Jan.
4, 2007) (protecting personal information of third-party taxpayers and IRS personnel because
"none of their personal information will give Plaintiff a greater understanding of how the
agency is performing its duties"); Forest Guardians v. U.S. Dep't of the Interior, No. 02-1003,
2004 WL 3426434, at *17 (D.N.M. Feb. 28, 2004) (finding public interest served by release of
financial value of loans and names of financial institutions that issued loans, but "protecting
any arguably private personal financial or other information concerning individual [Bureau of
Land Management] grazing permittees"); Hecht v. USAID, No. 95-263, 1996 WL 33502232, at
*12 (D. Del. Dec. 18, 1996) (determining that the public interest is served by release of
redacted contractor's employee data sheets without the names, addresses, and other
(continued...) 470 Exemption 6
USDA recognized a valid public interest in questioning the fairness of an agency lottery
system that awarded permits to raft down the Rogue River, but found, upon careful analysis,
that the release of the names and addresses of the applicants would in no way further that
interest.189 Similarly, in Heights Community Congress v. VA, the Court of Appeals for the Sixth
Circuit found that the release of names and home addresses would result only in the
"involuntary personal involvement" of innocent purchasers rather than appreciably furthering
a concededly valid public interest in determining whether anyone had engaged in "racial
steering." 190
Several courts, moreover, have observed that the minimal amount of information of
interest to the public revealed by a single incident or investigation does not shed enough light
188(...continued)
identifying information of employees); Stabasefski v. United States, 919 F. Supp. 1570, 1575
(M.D. Ga. 1996) (finding that public interest is served by release of redacted vouchers showing
amounts of Hurricane Andrew subsistence payment to FAA employees; disclosure of names
of employees would shed no additional light on agency activities); Gannett Satellite Info.
Network, Inc. v. U.S. Dep't of Educ., No. 90-1392, 1990 WL 251480, at *6 (D.D.C. Dec. 21, 1990)
("If in fact a student has defaulted, [his] name, address, and social security number would
reveal nothing about the Department's attempts to collect on those defaulted loans. Nor
would [they] reveal anything about the potential misuse of public funds.").
189 737 F.2d 784, 787 (9th Cir. 1984); see Wood, 432 F.3d at 89 ("Given that the FBI has
already revealed the substance of the investigation and subsequent adjudication, knowledge
of the names of the investigators would add little, if anything, to the public's analysis of
whether the FBI dealt with the accused agents in an appropriate manner."); Larson v. Dep't
of State, No. 02-01937, 2005 WL 3276303, at *29 (D.D.C. Aug. 10, 2005) (stating that the
plaintiff did "not . . . adequately explain how disclosure of the identities of these particular
sources would shed much, if any, light on the operations of [the Department of State]"); Kelly
v. CIA, No. 00-2498, slip op. at 49-50 (D.D.C. Sept. 25, 2002) (finding that although the "public
interest in [the CIA's former] MKULTRA [program] is certainly very high," plaintiff had not
demonstrated how disclosing the names of individual test subjects would shed light on the
MKULTRA program or CIA activities), appeal on adequacy of search dismissed on procedural
grounds, No. 02-5384, 2003 WL 21804101 (D.C. Cir. July 31, 2003); Times Picayune Publ'g Corp.
v. DOJ, 37 F. Supp. 2d 472, 480-81 (E.D. La. 1999) (concluding that release of mug shot would
not inform members of public about "activities of their government") (Exemption 7(C));
Baltimore Sun Co. v. U.S. Customs Serv., No. 97-1991, slip op. at 7 (D. Md. Nov. 21, 1997)
(finding that the photograph of an individual who pled guilty to trafficking in child
pornography was not "sufficiently probative of the fairness of [his] sentence that its disclosure
[would] inform[] the public of 'what the government is up to'") (Exemption 7(C)); N.Y. Times
Co. v. NASA, 782 F. Supp. 628, 632-33 (D.D.C. 1991) (finding that release of the audiotape of
the Challenger astronauts' voices just prior to the explosion would not serve the "undeniable
interest in learning about NASA's conduct before, during and after the Challenger disaster").
190 732 F.2d 526, 530 (6th Cir. 1984); see Painting Indus., 26 F.3d at 1484-85 (protecting
names and addresses of employees on payroll records, and stating that the "additional public
benefit the requesters might realize through [contacting the employees] is inextricably
intertwined with the invasions of privacy that those contacts will work"). Public Interest 471
on an agency's conduct to overcome the subject's privacy interest in his records.191 Courts
have distinguished between showing public interest in only the general subject area of the
request, as opposed to the public interest in the specific subject area of the disclosable
portions of the requested records.192
Linking the requested records with the asserted public interest is required by the
Supreme Court's holding in Favish, which emphasized that there must be a "nexus between
the requested information and the asserted public interest that would be advanced by
disclosure." 193 Likewise, the Supreme Court in Reporters Committee held that the "rap sheet"
of a defense contractor, if such existed, would reveal nothing directly about the behavior of
191 See Tomscha v. GSA, 158 F. App'x 329, 331 (2d Cir. 2005) (finding that disclosure of the
justification for awards given to "a single low-ranking employee of the GSA . . . would not
'contribute significantly to the public understanding of the operations or activities of the
government'" (quoting DOD v. FLRA, 510 U.S. at 495)); Oguaju v. United States, 288 F.3d 448,
451 (D.C. Cir. 2002) (declaring that "even if the records Oguaju seeks would reveal wrongdoing
in his case, exposing a single, garden-variety act of misconduct would not serve the FOIA's
purpose of showing 'what the Government is up to'") (Exemption 7(C)), vacated & remanded,
541 U.S. 970, on remand, 378 F.3d 1115 (D.C. Cir.), reh'g denied & amended, 386 F.3d 273 (D.C.
Cir. 2004) (per curiam); Needy v. FBI, 208 F.3d 461, 464 (4th Cir. 2000) (observing that "courts
have refused to recognize, for purposes of FOIA, a public interest in nothing more than the
fairness of a criminal defendant's own trial") (Exemption 7(C)); Hunt, 972 F.2d at 289
(observing that disclosure of single internal investigation file "will not shed any light on
whether all such FBI investigations are comprehensive or whether sexual misconduct by
agents is common"); Salas, 577 F. Supp. 2d at 112 (finding that OIG properly redacted
personally identifying information about Border Patrol employees mentioned in investigative
records about a complaint by plaintiff concluding that "[t]his one incident, though of obvious
importance to plaintiff, is not one of such magnitude that it outweighs the agency employees'
substantial privacy interest"); Berger, 487 F. Supp. 2d at 505 (finding that disclosure of one IRS
employee's time sheets would not serve the public interest); Mueller, 63 F. Supp. 2d at 745
("[T]he interest of the public in the personnel file of one Air Force prosecutor is attenuated
because information concerning a single isolated investigation reveals relatively little about
the conduct of the Air Force as an agency.") (Exemptions 6 and 7(C)); Chin, No. 97-2176, slip
op. at 5 (W.D. La. June 24, 1999) (finding only "marginal benefit to the public interest" in
release of the facts of a single case, particularly "where alternative means exist -- such as
statistical samples or generalized accounts -- to satisfy the public interest").
192 See, e.g., ACLU of N. Cal. v. DOJ, No. 04-4447, 2005 WL 588354, at *13 (N.D. Cal. Mar. 11,
2005) (ruling that "it was not sufficient for the plaintiffs to show [public] interest in only the
general subject area of the request"); Elec. Privacy Info. Ctr. v. DOD, 355 F. Supp. 2d 98, 102
(D.D.C. 2004) (stating that "[t]he fact that [the requester] has provided evidence that there is
some media interest in data mining as an umbrella issue does not satisfy the requirement that
[the requester] demonstrate interest in the specific subject of [its] FOIA request"); see also
Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (stating that an inquiry regarding the
public interest "should focus not on the general public interest in the subject matter of the
FOIA request, but rather on the incremental value of the specific information being withheld")
(Exemption 7(C)).
193 541 U.S. at 172-73. 472 Exemption 6
the Congressman with whom the contractor allegedly had an improper relationship, nor
would it reveal anything about the conduct of the DOD. 194 Courts have generally found that
the information must clearly reveal official government activities, and that it is not enough that
the information would permit speculative inferences about the conduct of an agency or a
government official,195 or that it might aid the requester in lobbying efforts that would result
194 489 U.S. at 774; see also Associated Press v. DOD, 554 F.3d at 288 ("This Court has
similarly said that 'disclosure of information affecting privacy interests is permissible only if
the information reveals something directly about the character of a government agency or
official.'" (quoting Hopkins v. HUD, 929 F.2d 81, 88 (2d Cir. 1991))); Nat'l Ass'n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafter NARFE] (finding that
names and home addresses of federal annuitants reveal nothing directly about workings of
government); Halloran, 874 F.2d at 323 ("[M]erely stating that the interest exists in the
abstract is not enough; rather, the court should have analyzed how that interest would be
served by compelling disclosure."); Kimberlin v. Dep't of the Treasury, 774 F.2d 204, 208 (7th
Cir. 1985) ("The record fails to reflect any benefit which would accrue to the public from
disclosure and [the requester's] self-serving assertions of government wrongdoing and
coverup do not rise to the level of justifying disclosure.") (Exemption 7(C)); Stern, 737 F.2d at
92 (finding that certain specified public interests "would not be satiated in any way" by
disclosure) (Exemption 7(C)); Barnard v. DHS, 598 F. Supp. 2d 1, 9 (D.D.C. 2009) ("Where, as
here, the nexus between the information sought and the asserted public interest is lacking,
the asserted public interests will not outweigh legitimate privacy interests."); Long v. OPM,
2007 WL 2903924, at *18 (concluding that "[t]he link between the disclosure of the names and
duty station of these federal employees - which reveals nothing directly about an employee's
job function or the agency he or she works for - and the conduct of the . . . federal agencies . . .
is too attenuated to weigh in favor of disclosure"); Seized Prop. Recovery, 502 F. Supp. 2d at
59 (stating that there must be a nexus between the information sought under FOIA and the
public's ability to learn about the agency's operations) (Exemptions 6 and 7(C)); Elec. Privacy
Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 117-18 (D.D.C. 2005) ("Names alone will not shed any
light on how the agencies worked with the airlines."); Nation Magazine v. Dep't of State, No.
92-2303, 1995 WL 17660254, at *10 & n.15 (D.D.C. Aug. 18, 1995) ("[T]he public interest in
knowing more about [presidential candidate H. Ross] Perot's dealings with the government
is also not the type of public interest protected by the FOIA."). But see Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) (finding that agency's response to
presidential candidate H. Ross Perot's offer to assist in drug interdiction would serve public
interest in knowing about agency's plans to privatize government functions).
195 See Reporters Comm., 489 U.S. at 774, 766 n.18; see also Cozen O'Connor v. Dep't of
Treasury, 570 F. Supp. 2d 749, 781 (E.D. Pa. 2008) (stating that "[during information gathering
and compilation, government agencies may coincidentally receive personal and private
information that has no bearing on their decision-making or operations[,]" and "[i]n those
instances, the relationship of the information to the individual is not pertinent to the
government's workings"); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12,
1996) (ruling that the possibility that release of names and addresses of rejected social
security disability claimants could ultimately reveal the agency's wrongful denial is "too
attenuated to outweigh the significant invasion of privacy"), aff'd per curiam, No. 96-9000 (11th
Cir. July 8, 1997). But see Avondale Indus. v. NLRB, 90 F.3d 955, 961-62 (5th Cir. 1996)
(declaring that disclosure of marked unredacted voting lists in union representation election
(continued...)
Public Interest 473
in passage of laws and thus benefit the public in that respect.196
A very significant development concerning this issue occurred in U.S. Department of
State v. Ray,
197 when the Supreme Court recognized that although there was a legitimate
public interest in whether the State Department was adequately monitoring Haiti's promise
not to prosecute Haitians who were returned to their country after failed attempts to enter the
United States, the Court determined that this public interest had been "adequately served" by
release of redacted summaries of the agency's interviews with the returnees and that "[t]he
addition of the redacted identifying information would not shed any additional light on the
Government's conduct of its obligation."198 Although the plaintiff claimed that disclosure of
the identities of the unsuccessful emigrants would allow him to reinterview them and elicit
further information concerning their treatment, the Court found "nothing in the record to
suggest that a second set of interviews with the already-interviewed returnees would
produce any relevant information . . . . Mere speculation about hypothetical public benefits
cannot outweigh a demonstrably significant invasion of privacy."199
195(...continued)
would give plaintiff information it needs to determine whether NLRB conducted election
tainted with fraud and corruption); Int'l Diatomite Producers Ass'n v. SSA, No. 92-1634, 1993
WL 137286, at *5 (N.D. Cal. Apr. 28, 1993) (finding that release of vital status information
concerning diatomite industry workers serves "public interest in evaluating whether public
agencies . . . carry out their statutory duties to protect the public from the potential health
hazards from crystalline silica exposure").
196 See NARFE, 879 F.2d at 875.
197 502 U.S. 164 (1991).
198 Id. at 178; see also Associated Press, 554 F.2d at 293 (concluding that "the public interest
in evaluating whether DOD properly followed-up on the detainees' claims of mistaken identity
have been adequately served by the disclosure of the redacted information and that disclosing
names and addresses of the family members would constitute a clearly unwarranted invasion
of the family members' privacy interest because such disclosure would not shed any light on
DOD's action in connection with the detainees' claims at issue here"); Seized Prop. Recovery,
502 F. Supp. 2d at 60 (noting that "any documents containing information about Custom's
performance or behavior would advance [the public interest of informing the citizenry of how
Customs operates] regardless of whether they contained the names and addresses of
individuals whose property was subject to forfeiture") (Exemptions 6 and 7(C)); Pub. Citizen,
Inc. v. RTC, No. 92-0010, 1993 WL 1617868, at *3-4 (D.D.C. Mar. 19, 1993) (adjudging public
interest in agency's compliance with Affordable Housing Disposition Program to be served by
release of information with identities of bidders and purchasers redacted). But seeRosenfeld,
57 F.3d at 811-12 (concluding that disclosure of names of investigative subjects would serve
public interest in knowing whether FBI "overzealously" investigated political protest group by
allowing comparison of investigative subjects to group's leadership roster) (Exemption 7(C)).
199 502 U.S. at 178-79; see also Forest Serv. Employees, 524 F.3d at 1027-28 (finding that
plaintiff, who admitted that "the identities of the employees alone will shed no new light on
the Forest Service's performance of its duties beyond that which is already publicly known[,]"
(continued...) 474 Exemption 6
The Supreme Court expressly declined in Ray to decide whether a public interest that
stems not from the documents themselves but rather from a "derivative use" to which the
documents could be put could ever be weighed in the balancing process against a privacy
interest.200 Subsequently, however, several lower courts faced the "derivative use" issue and
ordered the release of names and home addresses of private individuals in certain contexts
despite the fact that the public benefit to be derived from release of the information depended
upon the requesters' use of the lists to question those individuals concerning the government's
diligence in performing its duties. These courts have found a "derivative use" public interest
in the following contexts:
(1) a list of individuals who sold land to the Fish and Wildlife Service, which could be
used to contact the individuals to determine how the agency acquires property
throughout the United States;201
(2) a list of Haitian nationals returned to Haiti, which could be used for follow-up
interviews with the Haitians to learn "whether the INS is fulfilling its duties not to turn
away Haitians who may have valid claims for political asylum;"202
(3) a list of citizens who reported wolf sightings, which could be used to monitor the
Fish and Wildlife Service's enforcement of the Endangered Species Act;203
(4) the names of agents involved in the management and supervision of the FBI's 1972
investigation of John Lennon, which could be used to help determine whether the
199(...continued)
did not persuade the court that "direct contact with the employees would produce any
information that has not already been revealed to the public through the four investigations
that have already occurred and the three reports that have been publicly released"); Navigator
Publ'g v. DOT, 146 F. Supp. 2d 68, 71 (D. Me. 2001) (concluding that release of addresses of
merchant mariners licensed by United States would serve only "hypothetical 'derivative use'"
that is far outweighed by "demonstrably significant invasion of privacy"), appeal dismissed,
No. 01-1939 (1st Cir. Sept. 19, 2001).
200 502 U.S. at 178-79; Associated Press, 554 F.3d at 290 (explaining that the "derivative use"
theory "posits that the public interest can be read more broadly to include the ability to use
redacted information to obtain additional as yet undiscovered information outside the
government files").
201 Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me. Apr. 14, 1994).
202 Ray v. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (distinguishing Ray, 502 U.S. 164,
on the basis that "in the instant case . . . the public interest is not adequately served by release
of the redacted logs [and] this Court cannot say that interviewing the returnees would not
produce any information concerning our government's conduct during the interdiction
process").
203 Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13 (D. Wyo. May 31,
1994). Public Interest 475
investigation was politically motivated;204
(5) the name and address of an individual who wrote a letter complaining about an
immigration assistance company, which could be used to determine whether the INS
acted upon the complaint;205
(6) the names and addresses of individuals who received property seized under federal
law, which could enable the public to assess the government's exercise of its power to
seize and dispose of property;206 and
(7) the addresses of claimants awarded disaster assistance by FEMA based upon
claims of damages from various hurricanes in Florida in 2004, which could be used to
uncover further information pertaining to allegations of fraud and wasteful spending
in the distribution of disaster assistance by FEMA.207
However, the Second Circuit and the Ninth Circuit have expressed skepticism as to
whether "derivative use" can support a public interest under the FOIA. In Associated Press
v. DOD, the Second Circuit stated that "[a]lthough this Court has not addressed the issue of
whether a 'derivative use' theory is cognizable under FOIA as a valid way by which to assert
that a public interest is furthered, we have indicated that it may not be."208 Similarly, in Forest
Service Employees the Ninth Circuit observed that "[w]e have previously expressed
skepticism at the notion that such derivative use of information can justify disclosure under
Exemption 6," and concluded that the plaintiff's theory that "the only way the release of the
identities of the Forest Service employees can benefit the public is if the public uses such
information to contact the employees directly" is an unjustified reason to release their
identities.209 Other courts have been skeptical of the derivative use theory as well. 210
204 Weiner v. FBI, No. 83-1720, slip op. at 5-7 (C.D. Cal. Dec. 6, 1995) (Exemptions 6 and
7(C)).
205 Cardona v. INS, No. 93-3912, 1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995).
206 Baltimore Sun, 131 F. Supp. 2d at 729-30.
207 Sun-Sentinel v. DHS, 431 F. Supp. 2d 1258, 1269-73 (S.D. Fla. 2006), aff'd sub nom. NewsPress
v. DHS, 489 F.3d 1173 (11th Cir. 2007).
208 554 F.3d at 290.
209 524 F.3d at 1027-28.
210 See, e.g., Painting Indus., 26 F.3d at 1484-85 (concluding that the public interest in
monitoring an agency's enforcement of the Davis-Bacon Act is not served by disclosure of
names and addresses on payroll records because an additional step of contacting employees
is required and the "additional public benefit the requester might realize through these
contacts is inextricably intertwined with the invasions of privacy that those contacts will
work," but also reasoning that if yielding a public interest required only some further research
by the requester, then the fact that the use is a "derivative" one should not detract from the
strength of that public benefit); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 86-87 (D.D.C. 2003)
(continued...) 476 Exemption 6
Finally, if alternative, less intrusive means are available to obtain information that
would serve the public interest, there is less need to require disclosure of information that
would cause an invasion of someone's privacy. Accordingly, the D.C. Circuit has found that
"[w]hile [this is] certainly not a per se defense to a FOIA request," it is appropriate, when
assessing the public interest side of the balancing equation, to consider "the extent to which
there are alternative sources of information available that could serve the public interest in
disclosure."211
210(...continued)
(holding that "disclosure is not compelled under the FOIA because the link between the
request and the potential illumination of agency action is too attenuated . . . and this Court
does not understand the FOIA to encompass" a derivative theory of public interest); Sammis
v. Barnhardt, No. C01-3973, 2002 WL 1285050, at *2 (N.D. Cal. June 6, 2002) ("If this court
allowed disclosure, plaintiff would have to obtain the information, use it to contact applicants
directly, and cause them to take action . . . . This derivative type of benefit is too tenuous to
merit invading individuals' privacy."); Horsehead Indus. v. EPA, No. 94-1299, slip op. at 6
(D.D.C. Mar. 13, 1997) (acknowledging that disclosure of the identities of homeowners who
volunteered to participate in a Superfund study might "provide a glimpse into EPA's activities,"
but finding that "this interest pales in comparison to the potential harm to the privacy" of study
participants, based in part upon "reports of trespassers taking environmental samples"); Upper
Peninsula Envtl. Coal. v. Forest Serv., No. 2:94-cv-021, slip op. at 10 (W.D. Mich. Sept. 28, 1994)
(finding the "derivative" public interest in gathering information that might assist the Forest
Service in managing a wilderness area to be only "negligible," because "[i]t is not the purpose
of the FOIA to allow private citizens to do the work of government agencies").
211 DOD v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992); see Forest Serv. Employees, 524 F.3d
at 1028 ("As a result of the substantial information already in the public domain, we must
conclude that the release of the identities of the employees who participated in the Forest
Service's response to the Cramer Fire would not appreciably further the public's important
interest in monitoring the agency's performance during that tragic event."); Office of the
Capital Collateral Counsel, 331 F.3d at 804 (finding that there is substantial public information
available about the AUSA's misconduct and that therefore any "public interest in knowing how
DOJ responded to [the AUSA's] misconduct can be satisfied by this other public information");
Painting Indus., 26 F.3d at 1485 (union may "pass out fliers" or "post signs or advertisements
soliciting information from workers about possible violations of the Davis-Bacon Act"); FLRA
v. U.S. Dep't of Commerce, 962 F.2d 1055, 1060 n.2 (D.C. Cir. 1992) (union may "distribute
questionnaires or conduct confidential face-to-face interviews" to obtain rating information
about employees); Painting & Drywall, 936 F.2d at 1303 (contact at workplace is alternative
to disclosing home addresses of employees); Multnomah County Med. Soc'y, 825 F.2d 1410,
1416 (9th Cir. 1987) (medical society can have members send literature to their patients as
alternative to disclosure of identities of all Medicare beneficiaries); Chin, No. 97-2176, slip op.
at 4-5 (W.D. La. June 24, 1999) (release of "statistical data and/or general accounts of
incidents" would be an alternative to releasing investigative records of named individual to
show whether government policies were "administered in an arbitrary manner"); cf. Cowdery,
511 F. Supp. 2d at 219 (stating that "it is not clear from the Department's arguments that other
means could adequately provide such information and such an assessment," and so
concluding that "this factor weighs in favor of disclosure"); Heat & Frost Insulators & Asbestos
Workers, Local 16 v. U.S. Dep't of the Air Force, No. S92-2173, slip op. at 3-4 (E.D. Cal. Oct. 4,
(continued...)
Public Interest 477
This principle was taken into account in Favish where, considering the public interest
in disclosure, the Supreme Court recognized that the government had thoroughly investigated
the suicide at issue and that "[i]t would be quite extraordinary to say we must ignore the fact
that five different inquiries into the . . . matter reached the same conclusion."212 Likewise, the
Tenth Circuit found no public interest in a request to FEMA for "electronic map files" showing
the locations of federally insured structures, because the electronic files were "merely
cumulative of the information" that FEMA already had released in "hard copies" of the maps
and because the requester already had a "plethora of information" with which "to evaluate
FEMA's activities."213
Similarly, although courts ordinarily discuss the "public interest" as weighing in favor
of disclosure, several courts including the D.C. Circuit have implicitly recognized that there
can be a public interest in the nondisclosure of personal privacy information -- particularly, the
public interest in avoiding the impairment of ongoing and future law enforcement
investigations.214
211(...continued)
1993) (no alternative to union's request for payroll records -- with names, addresses, and social
security numbers redacted -- would allow union to monitor agency's collection of records in
compliance with federal regulations); Cotton, 798 F. Supp. at 27 n.9 (suggesting that request
for all inspector general reports, from which identifying information could be redacted, would
better serve public interest in overseeing discharge of inspector general duties than does
request for only two specific investigative reports involving known individuals).
212 541 U.S. at 175; see Forest Serv. Employees, 524 F.3d at 102 (noting that four federal
agencies investigated the Cramer Fire incident and "the Forest Service conducted its own
investigation and produced an accident report . . . [containing] a detailed narrative of the
agency's response to the fire as well as findings that the Forest Service's own management
failings contributed to the tragedy").
213 Forest Guardians v. FEMA, 410 F.3d 1214, 1219 & n.3 (10th Cir. 2005).
214 See, e.g., Perlman, 312 F.3d at 106 ("The strong public interest in encouraging witnesses
to participate in future government investigations offsets the weak public interest in learning
witness and third party identities.") (Exemptions 6 and 7(C)); Strout v. U.S. Parole Comm'n, 40
F.3d 136, 139 (6th Cir. 1994) ("[T]here would appear to be a public policy interest against such
disclosure, as the fear of disclosure to a convicted criminal could have a chilling effect on
persons, particularly victims, who would otherwise provide the Commission with information
relevant to a parole decision."); Miller v. Bell, 661 F.2d 623, 631 (7th Cir. 1981) (observing that
the district court failed to consider "the substantial public interest in maintaining the integrity
of future FBI undercover investigations") (Exemption 7(C)); Fund for Constitutional Gov't, 656
F.2d at 865-66 (recognizing that "public interest properly factors into both sides of the
balance," and finding that agency properly withheld the identities of government officials
investigated but not charged with any crime in "Watergate" investigation) (Exemption 7(C));
Amuso, 600 F. Supp. 2d at 97 (stating that "[i]ndividuals involved in law enforcement
investigations" and suspects have a "'substantial interest' in the nondisclosure of their
identities and connection to a particular investigation"); Diaz, No. 01-40070, slip op. at 10 (D.
Mass. Dec. 20, 2001) (deciding that there would be "chilling" effect if conversations between
(continued...) 478 Exemption 6
In conclusion, the public interest analysis is only part of the overall process for
determining whether personal privacy interests should be protected under the FOIA. If an
agency determines that no legitimate FOIA public interest exists, and there is a privacy
interest in the information, then the information should be protected.215 If, on the other hand,
a FOIA public interest is found to exist, the next step of the analysis requires the public
interest in disclosure to be weighed against the privacy interest in nondisclosure.216
Balancing Process
If an agency determined that there is a substantial (i.e., more than de minimis) privacy
interest in nondisclosure of requested information and there is also a FOIA public interest in
disclosure (i.e., the information reveals the operations or activities of the government) the two
competing interests must be weighed against one another in order to determine whether
disclosure would constitute a clearly unwarranted invasion of personal privacy.217 In other
words, identifying a substantial privacy interest and the existence of a FOIA public interest
"does not conclude the inquiry; it only moves it along to the point where [the agency] can
'address the question whether the public interest in disclosure outweighs the individual
privacy concerns.'"218 If the privacy interests against disclosure are greater than the public
interests in disclosure, the information may be properly withheld; alternatively, if the balance
214(...continued)
inmates and their attorneys were disclosed to public anytime they spoke on monitored prison
telephones).
215 See Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988)
(perceiving no public interest in disclosure of employees' social security numbers); Schoenman
v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008); Seized Prop. Recovery, 502 F. Supp. 2d at 56 ("If
no public interest is found, then withholding the information is proper, even if the privacy
interest is only modest."); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 144-45
(D.D.C. 2007) (Exemptions 6 and 7(C)).
216 See Associated Press v. DOD, 554 F.3d at 291 ("'Only where a privacy interest is
implicated does the public interest for which the information will serve become relevant and
require a balancing of the competing interests.'" (quoting FLRA v. VA, 958 F.2d 503, 509
(1992))); see also Ripskis, 746 F.2d at 3; Favish, 541 U.S. at 171 ("The term 'unwarranted'
requires us to balance the family's privacy interest against the public interest in disclosure.")
(Exemption 7(C)).
217 See DOD v. FLRA, 510 U.S. 487, 495 (1994); DOJ v. Reporters Comm. For Freedom of the
Press, 489 U.S. 749, 762 (1989)(discussing balancing in Exemption 7(C) context, which
generally employs same balancing test applicable in Exemption 6 cases); Dep't of the Air
Force v. Rose, 425 U.S. 352, 372 (1976); see also FOIA Update, Vol. X, No. 2, at 7 ("FOIA
Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decision making").
218 Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (quoting Nat'l Ass'n
of Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002); see Reporters Comm., 489 U.S. at
749 (a "court must balance the public interest in disclosure against the interest Congress
intended the [e]xemption to protect"); FLRA, 510 U.S. at 495 (same); Dep't of State v. Ray, 502
U.S. 164, 175 (1991) (same); Rose 425 U.S. at 372 (same). Balancing Process 479
is in favor of disclosure the information should be released.219
Some courts apply a four-part balancing test created by the Court of Appeals for the
Ninth Circuit in Church of Scientology v. U.S. Dep't of Army,220 which, although not expressly
overturned, has been impliedly superseded in favor of the two-factor test, as evidenced by the
majority of subsequent case law.221
As the Supreme Court has held: "Exemption 6 does not protect against disclosure every
incidental invasion of privacy, only such disclosures as constitute 'clearly unwarranted'
invasions of personal privacy."222 In balancing these interests, "the 'clearly unwarranted'
language of Exemption 6 weights the scales in favor of disclosure"223 and "creates a 'heavy
burden'" for an agency invoking Exemption 6.224
Although "the presumption in favor of disclosure is as strong [under Exemption 6] as
219 See, e.g., Rose, 502 U.S. at 177 (noting that "unless the invasion of privacy is 'clearly
unwarranted,' the public interest in disclosure must prevail"); News-Press v. DHS, 489 F.3d
1173, 1205 (11th Cir. 2007) ("In order to affirm withholding the addresses, we would have to
find that the privacy interests against disclosure are greater than the public interest in
disclosure."); see also Pub. Citizen Health Research Group v. U.S. Dep't of Labor, 591 F.2d 808,
809 (D.C. Cir. 1978) (finding that "[s]ince this is a balancing test, any invasion of privacy can
prevail, so long as the public interest balanced against it is sufficiently weaker").
220 611 F.2d 738 (9th Cir. 1979); see Habeas Corpus Res. Ctr. v. DOJ, No. 08-2649, 2008 WL
5000224 at *4 (N.D. Cal. Nov. 21, 2008) (applying a four-part balancing test); MacLean v. U.S.
Dep’t of Army, No. 05-CV-1519, 2007 WL 935604 at *15 (S.D. Cal. Mar. 6, 2007) (applying a fourpart
balancing test).
221 See Painting Industry of Haw. Market Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d
1479, 1482 (9th Cir.1994) ("Exemption 6 requires that courts balance the public interests in
disclosure against the privacy interests that would be harmed by disclosure."); Hunt v. FBI,
972 F.2d 286, 290 (9th Cir.1992) (recognizing that Exemption 6 requires "a balancing of the
public interest in disclosure against the possible invasion of privacy caused by the
disclosure"); Or. Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1089 (D. Or.
1998) (noting that four-factor test "has been effectively superseded by the exclusive two-factor
test").
222 Rose, 425 U.S. at 382; see, e.g., Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009)
(same).
223 Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984); see, e.g., Morley v. CIA, 508 F.3d 1108, 1127
(D.C. Cir. 2007) ("'Exemption 6's requirement that disclosure be clearly unwarranted instructs
us to tilt the balance (of disclosure interests against privacy interests) in favor of disclosure.'"
(quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982))).
224 Morley, 508 F.3d at 1127, (quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir.
1982)). 480 Exemption 6
can be found anywhere in the Act,"225 courts have readily protected personal, intimate details
of an individual's life. For example, as the Court of Appeals for the District of Columbia Circuit
has noted, courts have traditionally upheld the nondisclosure of information concerning
"marital status, legitimacy of children, identity of fathers of children, medical condition,
welfare payments, alcoholic consumption, family fights, reputation" and similarly personal
information.226 Furthermore, courts have consistently upheld protection for:
(1) birth dates;227
(2) religious affiliations;228
(3) citizenship data;229
225 Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982).
226 Rural Hous. Alliance v. USDA, 498 F.2d 73, 77 (D.C. Cir. 1974); see Hardison v. Sec'y of
VA, 159 F. App'x 93, 94 (11th Cir. 2005) (dates of marriage and spouses' names); McDonnell
v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) ("living individual has a strong privacy
interest in withholding his medical records"); Nat'l Sec. News Serv. v. U.S. Dep't of Navy, 584
F. Supp. 2d 94, 97 (D.D.C. 2008) (upholding nondisclosure of hospital patient admission
records); Pub. Employees for Envtl. Responsibility v. U.S. Dep't of the Interior, No. 06-182, 2006
WL 3422484, at *4 n.4 (D.D.C. Nov. 28, 2006) (withholding information detailing employee's
physical ailments and medical advice regarding those ailments); Sousa v. DOJ, No. 95-375,
1997 U.S. Dist. LEXIS 9010, at *22 (D.D.C. June 18, 1997) (withholding co-defendant's medical
records); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (upholding
nondisclosure of names, addresses, and claim denial letters of rejected social security
disability claimants), aff'd per curiam, No. 96-9000 (11th Cir. July 8, 1997); Hunt v. U.S. Marine
Corps, 935 F. Supp. 46, 54 (D.D.C. 1996) (observing that although public may have interest in
a political candidate's fitness for office, disclosure of candidate's medical records would not
shed light on conduct of Marine Corps).
227 See, e.g., Hardison, 159 F. App'x at 93; In Defense of Animals v. NIH, 543 F. Supp. 2d 70,
80 (D.D.C. 2008) ("Exemption 6 allows an agency to withhold documents if they contain
personal identifying information, such as 'place of birth, date of birth, date of marriage,
employment history, and comparable data.'" (quoting U.S. Dep't of State v. Wash. Post Co., 456
U.S. 595, 600)); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 83 F. Supp. 2d 105, 112 (D.D.C.
1999), appeal dismissed voluntarily, No. 99-5054 (D.C. Cir. Sept. 10, 1999).
228 See, e.g., Church of Scientology, 611 F.2d at 747.
229 See U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (passport information);
Hemenway v. Hughes, 601 F. Supp. 1002, 1006 (D.D.C. 1985) ("Nationals from some countries
face persistent discrimination . . . [and] are potential targets for terrorist attacks."); cf. Judicial
Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at *8 (D.D.C. Mar. 30, 2001) (asylum
application); Judicial Watch, Inc., 83 F. Supp. 2d at 112 (visa and passport data). Balancing Process 481
(4) genealogical history establishing membership in a Native American Tribe;230
(5) social security numbers;231
(6) criminal history records;232
(7) incarceration of United States citizens in foreign prisons;233
(8) identities of crime victims;234 and
(9) financial information.235
230 Quinault Indian Nation v. Gover, No. C97-5625, transcript at 52-57 (W.D. Wash. Oct. 19,
1998), aff'd sub nom. Quinault Indian Nation v. Deer, 232 F.3d 896 (9th Cir. 2000) (unpublished
table decision).
231 See, e.g., Sherman v. U.S. Dep't of the Army, 244 F.3d 357, 365-66 (5th Cir. 2001);
Norwood v. FAA, 993 F.2d 570, 575 (6th Cir. 1993); Schoenman v. FBI, 575 F. Supp. 2d 136, 164
(D.D.C. 2008) (concluding that "the Army has properly invoked FOIA Exemption 6 to withhold
the names, birthdates, and social security numbers of government personnel and third
parties"); Peay v. DOJ, No. 04-1859, 2006 WL 1805616, at *2 (D.D.C. June 29, 2006) ("The IRS
properly applied exemption 6 to the social security numbers of IRS personnel."); Dayton
Newspapers, Inc. v. U.S. Dep't of the Navy, No. C-3-95-328, slip op. at 31-38 (S.D. Ohio Sept.
12, 1996) (same); Fid. Nat'l Title Ins. Co. v. HHS, No. 91-5484, slip op. at 6-7 (C.D. Cal. Feb. 13,
1992) (same).
232 See, e.g., Reporters Comm., 489 U.S. at 780; Associated Press v. DOJ, 549 F.3d 62, 66 (2d
Cir. 2008) (per curiam) (holding commutation petition exempt from disclosure under
Exemptions 6 and 7(C)); Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1124-26 (D.C. Cir. 2004)
(protecting pardon applications, which include information about crimes committed); Lee v.
DOJ, No. 05-1665, 2007 WL 744731, at *2 (D.D.C. Mar. 6, 2007) (withholding list of individuals
convicted of serious criminal activity from whom the government attempted to collect
restitution).
233 See Harbolt v. Dep't of State, 616 F.2d 772, 774 (5th Cir. 1980).
234 See, e.g., Horowitz v. Peace Corps, 428 F.3d 271, 279-80 (D.C. Cir. 2005) ("Our law
uniformly recognizes that strong privacy interests are implicated when . . . [an] individual has
reported a sexual assault."); Elliott v. FBI, No. 06-1244, 2007 WL 1302595, at *6 (D.D.C. May 2,
2007) (upholding FBI's withholding of identity of juvenile victim of sexual assault) (Exemption
7(C)).
235 See, e.g., Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046, 1056 (D.C. Cir.
2009) (concluding that HHS properly withheld information that could reveal total payments
received by physicians from Medicare for covered services); Beard v. Espy, No. 94-16748, 1995
WL 792071, at *1 (9th Cir. Dec. 11, 1995); Hill v. USDA, 77 F. Supp. 2d 6, 8-9 (D.D.C. 1999),
summary affirmance granted, No. 99-5365, 2000 WL 520724, at *1 (D.C. Cir. Mar. 7, 2000);
Green v. United States, 8 F. Supp. 2d 983, 998 (W.D. Mich. 1998), appeal dismissed, No. 98
(continued...) 482 Exemption 6
Even "favorable information," such as details of an employee's outstanding performance
evaluation, can be protected on the basis that it "may well embarrass an individual or incite
jealousy" among coworkers.236 Moreover, release of such information "reveals by omission the
identities of employees who did not receive high ratings, creating an invasion of their
privacy."237
Balancing Process for Names & Addresses
Requests for the names and home addresses of individuals has generated much
litigation over the years. Because agencies may neither distinguish between requesters nor
limit the use to which disclosed information is put,238 courts have found that an analysis of the
consequences of disclosure of names and addresses cannot turn on the identity or purpose
of the requester.239 The Supreme Court has held that compilations of names and home
235(...continued)
1568 (6th Cir. Aug. 11, 1998); Stabasefski v. United States, 919 F. Supp. 1570, 1575 (M.D. Ga.
1996); Biase v. Office of Thrift Supervision, No. 93-2521, slip op. at 8-10 (D.N.J. Dec. 10, 1993);
Okla. Publ'g Co. v. HUD, No. 87-1935-P, 1988 U.S. Dist. LEXIS 18643, at *4-5 (W.D. Okla. June
17, 1988).
236 Ripskis, 746 F.2d at 3; see Hardison, 159 F. App'x at 93 (performance appraisals); FLRA
v. U.S. Dep't of Commerce, 962 F.2d 1055, 1059-61 (D.C. Cir. 1992) (performance appraisals);
Lewis v. EPA, No. 06-2660, 2006 WL 3227787, at *6 (E.D. Pa. Nov. 3, 2006) (employee or
candidate rankings and evaluations); Vunder v. Potter, No. 05-142, 2006 WL 162985, at *2-3
(D. Utah Jan. 20, 2006) (narrative of accomplishments submitted to superiors for consideration
in performance evaluation); Tomscha v. GSA, No. 03-6755, 2004 WL 1234043, at *4 (S.D.N.Y.
June 3, 2004) ("Both favorable and unfavorable assessments trigger a privacy interest."), aff'd,
158 F. App'x 329, 331 (2d Cir. 2005) ("[W]e agree with the district court's finding that the
release of the justifications for [plaintiff's] awards would constitute more than a de minimis
invasion of privacy, as they necessarily include private, albeit positive, information regarding
his job performance."). But see also Hardy v. DOD, No. CV-99-523, 2001 WL 34354945, at *9
(D. Ariz. Aug. 27, 2001) (finding concern with jealousy on parts of co-workers diminished by
fact that subject employee had since retired).
237 FLRA, 962 F.2d at 1059.
238 See NARA v. Favish, 541 U.S. 157, 174 (2004) ("It must be remembered that once there
is disclosure, the information belongs to the general public. There is no mechanism under
FOIA for a protective order allowing only the requester to see . . . the information . . . or for
proscribing its general dissemination."); Forest Serv. Employees for Envtl. Ethics v. U.S. Forest
Serv., 524 F.3d 1021, 1025 (9th Cir. 2008) ("FOIA provides every member of the public with
equal access to public documents and, as such, information released in response to one FOIA
request must be released to the public at large.").
239 See Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 356 (1997) (finding irrelevant
requester's claimed purpose for seeking mailing list in order to disseminate information); Nat'l
Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) [hereinafter
NARFE] (finding irrelevant requester's claimed purpose to use list of federal retirees to aid in
(continued...) Balancing Process for Names & Addresses 483
addresses are protectible under Exemption 6,240 and that specific lists may reveal sensitive
information beyond the mere names and addresses of the individuals found on the list.241 The
D.C. Circuit addressed the question of whether disclosure of mailing lists constituted a clearly
unwarranted invasion of personal privacy in National Ass'n of Retired Federal Employees v.
Horner, and, while stopping short of creating a nondisclosure category for all mailing lists, the
D.C. Circuit held that mailing lists consisting of names and home addresses of federal
annuitants are categorically withholdable under Exemption 6.242
239(...continued)
its lobbying efforts on behalf of those retirees); Schwarz v. Dep't of State, No. 97-1342, slip op.
at 5 (D.D.C. Mar. 20, 1998) (holding, despite plaintiff's claim that she needed address of third
party to assist her, that the "merits of an agency's FOIA determinations do not rest on the
identity of the requester or the purpose for which the information is intended to be used"), aff'd
per curiam, 172 F.3d 921 (D.C. Cir. 1998) (unpublished table decision); see also Robbins v.
HHS, No. 1:95-cv-3258, slip op. at 8-9 (N.D. Ga. Aug. 12, 1996) (rejecting as "too attenuated"
plaintiff's claim of intent to use names and addresses of rejected social security disability
claimants as means to represent them and "thereby 'promote the effective uniform
administration of the disability program,'" and ultimately reveal alleged wrongful denials
(quoting plaintiff's papers)); Bongiorno v. Reno, No. 95-72143, 1996 WL 426451, at *14 (E.D.
Mich. Mar. 19, 1996) (noting that requester sought personal information concerning his
adopted daughter "for his own purposes, [and] as understandable as they may be, [those
purpose are] not to shine a public light into the recesses of the federal bureaucracy"); Andrews
v. DOJ, 769 F. Supp. 314, 316-17 (E.D. Mo. 1991) (declining to release individual's address,
telephone number, and place of employment to requester seeking it for purpose of satisfying
monetary judgment).
240 See Bibles, 519 U.S. at 355-56 (protecting mailing list of recipients of Bureau of Land
Management publication); DOD v. FLRA, 510 U.S. 487, 494-502 (1994) (protecting names and
home addresses of federal employees in union bargaining units); Dep't of State v. Ray, 502 U.S.
164, 173-79 (1991) (withholding from interview summaries the names and addresses of Haitian
refugees interviewed by State Department about treatment upon return to Haiti).
241 See Ray, 502 U.S. at 176 (observing that disclosure of a list of Haitian refugees
interviewed by the State Department about their treatment upon return to Haiti "would
publicly identify the interviewees as people who cooperated with a State Department
investigation"); Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-88 (8th Cir. 2000)
(protecting list of pork producers who signed petition that declared their position on
referendum that was sought by petition) (reverse FOIA suit); NARFE, 879 F.2d at 876
(characterizing the list at issue as revealing that each individual on it "is retired or disabled
(or the survivor of such a person) and receives a monthly annuity check from the federal
Government"); Minnis v. USDA, 737 F.2d 784, 787 (9th Cir. 1984) ("Disclosure would reveal not
only the applicants' names and addresses, but also their personal interests in water sports
and the out-of-doors.").
242 NARFE, 879 F.2d at 879; see also Retired Officers Ass'n v. Dep't of the Navy, 744 F. Supp.
1, 2-3 (D.D.C. May 14, 1990) (holding names and home addresses of retired military officers
exempt); cf. Reed v. NLRB, 927 F.2d 1249, 1251-52 (D.C. Cir. 1991) (categorically protecting
"Excelsior" list (names and addresses of employees eligible to vote in union representation
(continued...) 484 Exemption 6
In these types of cases, courts have frequently found the asserted public interest too
attenuated to overcome the clear privacy interest an individual has in his name and home
address. Nevertheless, several lower courts have ordered the disclosure of such information
in certain contexts. Some of these courts have found little or no privacy interest in the names
and addresses at issue. 243 Other courts have ordered the release of such personal information
on the rationale that the names and addresses themselves would reveal (or lead to other
information that would reveal) how an agency conducted some aspect of its business.244
242(...continued)
elections)).
243 See Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 36 (D.C. Cir. 2002) (finding
privacy interest "relatively weak," and determining that public interest in learning about
agency's use of owl data is served by release of lot numbers of parcels of land where owls
have been spotted, even while acknowledging that the identities of landowners could be
determined by use of this information); Avondale Indus. v. NLRB, 90 F.3d 955, 961 (5th Cir.
1996) (finding that names and addresses of voters in union election already were disclosed
in voluminous public record); People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp.
2d 284, 306 (D.D.C. 2007) (ordering release of names of those who voluntarily submitted
comments regarding informational video shown at Lincoln Memorial because "the public
interest in knowing who may be exerting influence on National Park Service officials sufficient
to convince them to change the video outweighs any privacy interest in one's name.");
Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 729 (D. Md. 2001) (declaring that
purchasers of property previously seized by the government "voluntarily choose to participate
in . . . a wholly legal commercial transaction" and "have little to fear in the way of 'harassment,
annoyance, or embarrassment'") (Exemption 7(C)); Alliance for the Wild Rockies v. Dep't of the
Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999) (concluding that commenters to proposed
rulemaking could have little expectation of privacy when rulemaking notice stated that
complete file would be publicly available); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36
(D.D.C. Oct. 18, 1996) (finding minimal privacy interest in home addresses at which farmers
receiving subsidies under cotton price support program operate their businesses), appeal
dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson & Bishop Chartered v.
USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (finding no privacy interest in names of
commercial mushroom growers operating under own names).
244 See Baltimore Sun, 131 F. Supp. 2d at 729-30 (names and addresses of purchasers of
property seized by government found to allow public to assess agencies' exercise of their
power to seize property and their duty to dispose of such property) (Exemption 7(C)); Or.
Natural Desert Ass'n v. U.S. Dep't of Interior, 24 F. Supp. 2d 1088, 1093 (D. Or. 1998) (names
of cattle owners who violated federal grazing laws found to reveal "how government is
enforcing and punishing violations of land management laws") (Exemption 7(C)); Maples v.
USDA, No. 97-5663, slip op. at 14 (E.D. Cal. Jan. 13, 1998) (names and addresses of permit
holders for use of federal lands "would provide the public with an understanding of how the
permit process works"); Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip op. at 13
(D. Wyo. May 31, 1994) (list of citizens who reported wolf sightings found to show agency
activities "with respect to the duties imposed upon it by the Endangered Species Act"); Ray
v. DOJ, 852 F. Supp. 1558, 1564-65 (S.D. Fla. 1994) (names and addresses of interdicted
Haitians might reveal "information concerning our government's conduct during the
(continued...)
Balancing Process for Names & Addresses 485
For example, the Court of Appeals for the Eleventh Circuit concluded in News-Press v.
DHS that disclosure of the addresses of buildings that received disaster assistance from
FEMA should be released, but that the names of aid recipients were properly withheld.245 The
court recognized that the public had a legitimate interest in knowing whether FEMA
appropriately handled billions of dollars in disaster relief claims, especially in light of evidence
submitted by the requesters of wasteful or fraudulent spending of disaster assistance funds.246
The court went on to find that the addresses of those structures allegedly damaged would
shed light directly on the allegations of impropriety, as those addresses that received disaster
relief which were located outside the path of the natural disasters "plainly would raise red
flags" regarding FEMA’s effectiveness in properly distributing disaster assistance.247
Against this "powerful public interest,"248 the court weighed the privacy interests of aid
recipients in the nondisclosure of their home addresses. The Court identified a number of
privacy interests threatened by disclosure of the home addresses, including the fact that
disclosure of the addresses would allow the public to "link certain information already
disclosed by FEMA to particular individuals." 249 However, the court found that these privacy
interests were not substantial enough to warrant protection under Exemption 6.250 In
summary, the court stated that "[q]uite simply, the disclosure of the addresses serves a
powerful public interest, and the privacy interests extant cannot be said even to rival this
public interest, let alone exceed it, so that disclosure would constitute a 'clearly unwarranted'
invasion of personal privacy." 251 The court remarked that in this case it did "not find the
balancing calculus to be particularly hard."252
By contrast, the court held that disclosure of the names of the aid recipients would
constitute a "clearly unwarranted invasion of personal privacy."253 Whereas the addresses
would shed light directly on whether FEMA improperly disbursed funds, the names of those
244(...continued)
interdiction process"); Thott v. U.S. Dep't of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me.
Apr. 14, 1994) (list of individuals who sold land to Fish and Wildlife Service found to inform the
public "about the methods used by FWS in acquiring property throughout the United States").
245 489 F.3d 1173, 1205-06 (11th Cir. 2007).
246 Id. at 1192.
247 Id. at 1192-96.
248 Id. at 1196.
249 Id. at 1199.
250 Id. at 1200.
251 Id. at 1205.
252 Id.
253 Id.
486 Exemption 6
aid recipients "'would provide no further insight into the operations of FEMA.'"254 As such, the
court found that the public’s interest in the aid recipient names was "outweighed by the
increased privacy risks" posed by disclosure of those names.255
In certain circumstances, an individual may have an interest in having his or her
personal information disclosed rather than withheld. In Lepelletier v. FDIC, the D.C. Circuit
remanded the case back to the district court to determine whether some of the names of
individual depositors with unclaimed funds at banks for which the FDIC was then the receiver
should be released to a professional money finder.256 Introducing a new element into the
balancing test for this particular type of information, the D.C. Circuit held that the standard
test "is inapposite here, i.e., where the individuals whom the government seeks to protect
have a clear interest in the release of the requested information."257 As guidance to the lower
court charged with addressing this novel set of circumstances, the D.C. Circuit ordered, first,
that "release of names associated with unclaimed deposits should not be matched with the
amount owed to that individual" and, second, that "on remand, the District Court must
determine the dollar amount below which an individual's privacy interest should be deemed
to outweigh his or her interest in discovering his or her money, such that the names of
depositors with lesser amounts may be redacted."258
Partial Disclosures
In some contexts, deletion of the identities of the individuals mentioned in a document,
with release of the remaining material, provides protection for personal privacy while at the
same time allows for the disclosure of information regarding government activities. For
example, in Department of the Air Force v. Rose, the Supreme Court ordered the release of
case summaries of disciplinary proceedings, provided that personal identifying information
was deleted.259 Similarly, courts have ordered the disclosure of computerized lists of numbers
and types of drugs routinely ordered by the congressional pharmacy after deletion of any item
254 Id. at 1205 (quoting Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1271 (S.D. Fla. 2006)).
255 Id.
256 164 F.3d 37, 48-49 (D.C. Cir. 1999).
257 Id. at 48.
258 Id.
259 425 U.S. 352, 380-81 (1976); see Ripskis v. HUD, 746 F.2d 1, 4 (D.C. Cir. 1984)(noting that
agency voluntarily released outstanding performance rating forms with identifying
information deleted); Aldridge v. U.S. Comm'r of Internal Revenue, No. 7:00-CV-131, 2001 WL
196965, at *3 (N.D. Tex. Feb. 23, 2001) (determining that privacy interests of employees
recommended for discipline could be protected by redacting their names); Hecht v. USAID,
No. 95-263, 1996 WL 33502232, at *12 (D. Del. Dec. 18, 1996) (finding that privacy interests of
government contractor's employees could be protected by withholding their names and
addresses from biographical data sheets); Church of Scientology v. IRS, 816 F. Supp. 1138,
1160 (W.D. Tex. 1993) (ordering agency to protect employees' privacy interests in their
handwriting by typing handwritten records at requester's expense). Partial Disclosures 487
identifiable to a specific individual, 260 and have ordered the disclosure of documents
concerning disciplined IRS employees, provided that all names and other identifying
information were deleted. 261 Similarly, documents voluntarily submitted to the government
by private citizens have been held releasable, as long as redactions are made of personally
identifying information.262 For example, in Carter, Fullerton & Hayes LLC v. FTC, the FTC
released the text of all responsive documents located in its consumer complaint database
except for personal information pertaining to individual consumers.263
Nevertheless, in some situations the deletion of personal identifying information may
not be adequate to provide necessary privacy protection.264 As such, in Rose, the Supreme
Court specifically held that if it were determined on remand that the deletions of personal
references were not sufficient to safeguard privacy, then the summaries of disciplinary
hearings should not be released.265
260 See Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468-69 (D.C. Cir. 1983); see also
Dayton Newspapers, Inc. v. Dep't of the Air Force, 35 F. Supp. 2d 1033, 1035 (S.D. Ohio 1998)
(ordering release of militarywide medical tort-claims database with "claimants' names, social
security numbers, home addresses, home/work telephone numbers and places of
employment" redacted); Chi. Tribune Co. v. HHS, No. 95 C 3917, 1997 WL 1137641, at *18-19
(N.D. Ill. Feb. 26, 1997) (magistrate's recommendation) (ordering release of patient data forms
that identify patients only by nine-digit encoded "Study Numbers"), adopted, (N.D. Ill. Mar. 28,
1997); Minntech Corp. v. HHS, No. 92-2720, slip op. at 5 (D.D.C. Nov. 17, 1993) (ordering release
of FDA studies concerning mortality rates and use of kidney dialyzers with names, addresses,
places of birth, and last four digits of social security numbers deleted); Frets v. Dep't of
Transp., No. 88-404-W-9, 1989 WL 222608, at *5 (W.D. Mo. Dec. 14, 1989) (ordering disclosure
of drug reports of air traffic controllers with identities deleted); Citizens for Envtl. Quality v.
USDA, 602 F. Supp. 534, 538-39 (D.D.C. 1984) (ordering disclosure of health test results
because identity of single agency employee tested could not, after deletion of his name, be
ascertained from any information known outside appropriate part of agency (citing Rose, 425
U.S. at 380 n.19 (dicta))).
261 See Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979); cf. Senate of P.R. v. DOJ,
No. 84-1829, 1993 WL 364696, at *10-11 (D.D.C. Aug. 24, 1993) (ordering release of information
concerning cooperating inmate after redaction of identifying details).
262 See Billington v. DOJ, 258 F. App'x 348, 349 (D.C. Cir. 2007).
263 520 F. Supp. 2d 134, 148 (D.D.C. 2007).
264 See, e.g., Harry v. Dep't of the Army, No. 92-1654, slip op. at 9 (D.D.C. Sept. 13, 1993)
(concluding that redaction of ROTC personnel records was not possible because "intimate
character" of ROTC corps at university would make records recognizable to requester who
was in charge of university's ROTC program); see also Alirez v. NLRB, 676 F.2d 423, 428 (10th
Cir. 1982) (finding that deletion of names and other identifying data pertaining to small group
of co-workers was simply inadequate to protect them from embarrassment or reprisals
because requester could still possibly identify individuals) (Exemption 7(C)).
265 425 U.S. at 381; see also, e.g., ACLU v. DOD, 389 F. Supp. 2d 547, 572 (S.D.N.Y. 2005)
(continued...) 488 Exemption 6
In another example, to protect those persons who were the subjects of disciplinary
actions that were later dismissed, Court of Appeals for the District of Columbia Circuit upheld
the nondisclosure of public information contained in such disciplinary files when the redaction
of personal information would not be adequate to protect the privacy of the subjects because
the requester could easily obtain and compare unredacted copies of the documents from
public sources.266 Similarly, when the information in question concerns a small group of
individuals who are known to each other and easily identifiable from the details contained in
the information, redaction might not adequately protect privacy interests.267
Furthermore, when requested information is "unique and specific" to the subjects of a
265(...continued)
(declaring that for certain photographic and video images, "where the context compelled the
conclusion that individual recognition could not be prevented without redaction so extensive
as to render the images meaningless, [the court orders] those images not to be produced").
266 Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987); see also, e.g., Marzen
v. HHS, 825 F.2d 1148, 1152 (7th Cir. 1987) (concluding that redaction of "identifying
characteristics" would not protect the privacy of a deceased infant's family because others
could ascertain the identity and "would learn the intimate details connected with the family's
ordeal"); Campaign for Family Farms v. Veneman, No. 99-1165, 2001 WL 1631459, at *3 (D.
Minn. July 19, 2001) (finding that disclosure of zip codes and dates of signatures could identify
signers of petition); Ligorner v. Reno, 2 F. Supp. 2d 400, 405 (S.D.N.Y. 1998) (finding that
redaction of a complaint letter to the Office of Professional Responsibility would be inadequate
to protect the identities of the individual accused of misconduct and of the accuser, because
"public could deduce the identities of the individuals whose names appear in the document
from its context").
267 See, e.g., Alirez, 676 F.2d at 428 (finding that mere deletion of names and other
identifying data concerning small group of co-workers inadequate to protect them from
embarrassment or reprisals because requester could still possibly identify individuals)
(Exemption 7(C)); Karantsalis v. U.S. Dep't of Educ., No. 05-22088, slip op. at 4 n.4 (S.D. Fla.
Dec. 19, 2005) (reasoning that because the requested document dealt "with a particular, small
workplace, and since the contents of the report deal exclusively with confidential personnel
matters, it is not possible, as in some cases, merely to excise personally identifying
information"); Butler v. SSA, No. 03-0810, slip op. at 6 (W.D. La. June 25, 2004) (protecting
complaints made against the requester, "because the employee or employees who complained
could have been easily identified by the fact scenarios described in the documents"), aff'd on
other grounds, 146 F. App'x 752 (5th Cir. 2005); Rothman v. Dep't of Agric., No. 94-8151, slip
op. at 8-9 (C.D. Cal. June 17, 1996) (protecting information in employment applications that
pertains to knowledge, skills, and abilities of unsuccessful applicants, because the "field of
candidates for this particular position (canine officer) is specialized and is limited to about
forty persons who work in same agency and may know each other personally"); McLeod v.
Pena, No. 94-1924, slip op. at 6 (D.D.C. Feb. 9, 1996) (concluding that redaction of investigative
memoranda and witness statements would not protect privacy when "community of possible
witnesses and investigators is very small" -- eight officers and twenty enlisted personnel)
(Exemption 7(C)); Barvick v. Cisneros, 941 F. Supp. 1015, 1021-22 (D. Kan. 1996) (protecting
all information about unsuccessful federal job applicants because any information about
members of "select group" that applies for such job could identify them). Partial Disclosures 489
record, "individual identities may become apparent from the specific details set forth in [the]
documents," so that "deletion of personal identifying information . . . may not be adequate to
provide the necessary privacy protection."268 Indeed, a determination of what constitutes
identifying information requires both an objective analysis and an analysis "from the vantage
point of those familiar with the mentioned individuals."269
268 Rashid v. DOJ, No. 99-2461, slip op. at 15-16 (D.D.C. June 12, 2001); see Whitehouse v.
U.S. Dep't of Labor, 997 F. Supp. 172, 175 (D. Mass. 1998) (discerning "no practical way" to
sanitize "personal and unique" medical evaluation reports to prevent identification by
knowledgeable reader); Ortiz v. HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y. 1995) (finding that
factors such as type style, grammar, syntax, language usage, writing style, and mention of
facts "that would reasonably be known only by a few persons" could lead to identification of
the author if an anonymous letter were released) (Exemptions 7(C) and 7(D)), aff'd on
Exemption 7(D) grounds, 70 F.3d 729 (2d Cir. 1995).
269 Cappabianca v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1565 (M.D. Fla. 1994).
But see also ACLU v. DOD, 389 F. Supp. 2d at 572 ("If, because someone sees the redacted
pictures and remembers from earlier versions leaked to, or otherwise obtained by, the media
that his image, or someone else's, may have been redacted from the picture, the intrusion into
personal privacy is marginal and speculative, arising from the event itself and not the
redacted image.")