Exemption 6

Department of Justice Guide to the Freedom of Information Act

Exemption 6

Personal privacy interests are protected by two provisions of the Freedom of

Information Act, Exemptions 6 and 7(C).

1

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."

2

Exemption 7(C) 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."

3

Under both personal privacy

exemptions of the FOIA, the concept of privacy not only encompasses that which is

inherently private, but also includes an "individual's control of information concerning

his or her person."

4

In order to determine whether Exemption 6 protects against disclosure, courts

require that agencies engage in the following four-step analysis: first, determine

whether the information at issue is a personnel, medical, or "similar" file;

5

second,

1

5 U.S.C. § 552(b)(6), (7)(C) (2006 & IV 2010); 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, 74 Fed. Reg. 51879 (Oct. 8, 2009); 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

5 U.S.C. § 552(b)(6).

3

5 U.S.C. § 552(b)(7)(C).

4

DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989).

5

5 U.S.C. § 552(b)(6).

Department of Justice Guide the the Freedom of Information Act

Exemption 6

2

determine whether there is a significant privacy interest in the requested information;

6

third, evaluate the requester's asserted FOIA public interest in disclosure;

7

and finally, if

there is a significant privacy interest in non-disclosure and a FOIA public interest in

disclosure, balance those competing interests to determine whether disclosure "would

constitute a clearly unwarranted invasion of personal privacy."

8

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 be found anywhere in the Act.'"

9

Each step of the Exemption 6 analysis is dependent upon the prior step being

satisfied. For example, if the information in question does not satisfy the threshold

requirement, it is unnecessary to evaluate privacy interests because Exemption 6 is

inapplicable.

10

Similarly, if significant privacy interests are not threatened by

disclosure, further analysis is unnecessary and the information at issue must be

6

See Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008) ("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,' because

'[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))).

7

See NARA v. Favish, 541 U.S. 157, 172 (2004) ("Where the privacy concerns . . . are

present, the exemption requires the person requesting the information to establish a

sufficient reason for the disclosure.") (Exemption 7(C)).

8

5 U.S.C. § 552(b)(6); see also Favish, 541 U.S. 157 at 172 ("The term 'unwarranted' requires

us to balance the . . . privacy interest against the public interest in disclosure."); Wash. Post

Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982) ("Finally, we balance the competing interests

to determine whether the invasion of privacy is clearly unwarranted.").

9

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.").

10

See, e.g., Schonberger v. NTSB, 508 F. Supp. 941, 942 (D.D.C. 1981) ("To satisfy

exemption six, the defendants must meet both aspects of the statutory test, showing that the

material requested 1) is part of a personnel, medical, or similar file, and if so 2) would, if

disclosed publicly, constitute a clearly unwarranted invasion of personal privacy."); Stern v.

SBA, 516 F. Supp. 145, 148-49 (D.D.C. 1980) ("In order for an agency to justify

nondisclosure under Exemption 6, it must first establish that the requested information is

in fact properly classified as a 'personnel,' 'medical' or 'similar' file.").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

3

disclosed.

11

Alternatively, if a significant privacy interest is found to exist, but there is

no FOIA public interest in disclosure, the information should be protected; as the D.C.

Circuit has observed, "something, even a modest privacy interest, outweighs nothing

every time."

12

The balancing of competing interests is required when there is both a

significant privacy interest that would be infringed by disclosure and there is also a

FOIA public interest that weighs in favor of disclosure.

13

If the FOIA public interest in

disclosure outweighs the attendant privacy interests, the information should be

disclosed; if the opposite is found to be the case, the information should be withheld.

14

11

See, e.g., 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))); 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).

12

Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); see

also Favish, 541 U.S. at 175 (finding that requester had not shown existence of public

interest "to put the balance into play") (Exemption 7(C)); 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) (concluding individuals' name was properly withheld

where requester's alleged public interest "is simply not the public interest cognizable under

FOIA Exemption [6]"); Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 144-45

(D.D.C. 2007) (finding privacy interests of individual consumers in names, addresses, and

telephone numbers "clearly outweigh the narrowly construed public interest"); 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)).

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 Favish, 541 U.S. at 171 ("The term 'unwarranted' requires

us to balance the family's privacy interest against the public interest in disclosure"); Ripskis

v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984) ("'Congress sought to construct an exemption that

would require a balancing of the individual's right of privacy against the preservation of the

basic purpose of the Freedom of Information Act'" (quoting Dep't of the Air Force v. Rose,

425 U.S. 352, 372 (1976))).

14

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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

4

Threshold: Personnel, Medical and Similar Files

Information meets the threshold requirement of Exemption 6 if it is contained in

"personnel and medical files and similar files."

15

Personnel and medical files are easily

identified, but what constitutes a "similar file" was established by the Supreme Court in

United States Department of State v. Washington Post Co.

16

There the 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.

17

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."

18

Rather, the Court

made clear that all information that "applies to a particular individual" meets the

threshold requirement for Exemption 6 protection.

19

Conversely, the threshold of

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, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C):

Step-by-Step Decision-making") (outlining mechanics of balancing process).

15

5 U.S.C. § 552(b)(6) (2006 & IV 2010).

16

456 U.S. 595 (1982).

17

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)).

18

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)).

19

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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

5

Exemption 6 has been found not to be satisfied when the information cannot be linked

to a particular individual,

20

or when the information pertains to federal government

employees, but is "essentially business" in nature, rather than personal.

21

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."); 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"); Families for

Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896, at *9

(S.D.N.Y. Dec. 27, 2011) ("The plain meaning of the statute and the Second Circuit's method

of applying it make clear that Exemption 6 applies only to personnel and medical files and

to similar files, such as those containing investigations of alleged corruption, passport

applications, asylum requests, or detainee abuse."); Carter, Fullerton & Hayes LLC v. FTC,

520 F. Supp. 2d at 144-45 (D.D.C. 2007) (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"); 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)); 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").

20

See, e.g., Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (holding

that defendant must establish "more than a 'mere possibility' that the medical condition of a

particular individual might be disclosed" in order to protect a 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).

21

Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008) ("Correspondence does not become

personal solely because it identifies government employees."); 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 at issue 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); see, e.g.,

Department of Justice Guide the the Freedom of Information Act

Exemption 6

6

The Court of Appeals for the District of Columbia 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" satisfied the similar files threshold.

22

Once it has been determined that information meets the threshold requirement

of Exemption 6, the next step of the analysis is to identify whether there is a significant

privacy interest in the requested information and to ascertain the extent of that interest

in nondisclosure.

23

Privacy Interest

In the landmark FOIA decision of 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

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'");

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").

22

N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc) (determining

that "lexical" and "non-lexical" information are subject to identical treatment under the

FOIA); 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").

23

See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption

7(C): Step by Step Decisionmaking").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

7

law and the literal understandings of privacy encompass the individual's control of

information concerning his or her person."

24

As the Court of Appeals for the District of

Columbia Circuit has recognized, this concept of privacy "includes the prosaic

(e.g., place of birth and date of marriage) as well as the intimate and potentially

embarrassing."

25

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."

26

As such, Exemption 6 cannot be invoked to

withhold from a requester information pertaining only to him or herself.

27

Furthermore, both the "author" and the "subject" of a file may possess cognizable

24

489 U.S. 749, 763 (1989) (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)).

25

Painting & Drywall Work Pres. Fund, Inc. v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991);

see Associated Press v. DOD, 554 F.3d 274, 286-87 (2nd Cir. 2009) (holding that identities

of Guantanamo Bay detainees associated with abuse allegations were entitled to protection,

and noting that "[a]lthough the detainees here are indeed like prisoners, their Fourth

Amendment reasonable expectation of privacy is not the measure by which we assess their

personal privacy interest protected by FOIA").

26

See Reporters Comm., 489 U.S. at 763-65 (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 them 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.").

27

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) ("disclosure of information about a person

to that person does not constitute an invasion of his privacy"); 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").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

8

privacy interests under Exemption 6.

28

Notably, courts afford foreign nationals the

same privacy rights under the FOIA as they afford U.S. citizens.

29

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."

30

At the same time, courts have found that the threat to privacy

must be real rather than speculative.

31

In National Ass'n of Retired Federal Employees

28

N.Y. Times Co. v. NASA, 920 F.2d 1002, 1007-08 (D.C. Cir. 1990) (en banc).

29

See U.S. Dep't of State v. Ray, 502 U.S. 164, 175-79 (1991) (applying traditional analysis of

privacy interests under FOIA to Haitian nationals); Graff v. FBI, No. 09-2047, 2011 WL

5401928, at *8 (D.D.C. Nov. 9, 2011) (holding "foreign nationals are entitled to the privacy

protections embodied in FOIA") (Exemption 7(C)); 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 v. Hughes, 601

F. Supp. 1002, 1005-07 (D.D.C. 1985) (according Exemption 6 protection to citizenship

information regarding news correspondents accredited to attend State Department press

briefings).

30

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).

31

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)), cert. granted,

vacated & remanded on other grounds, 130 S. Ct. 777 (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").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

9

v. Horner [hereinafter NARFE], the D.C. Circuit explained that "mere speculation" of an

invasion of privacy is not sufficient.

32

The NARFE court went on to state 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."

33

The D.C. Circuit has ruled that agencies must initially determine "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.'"

34

The D.C. Circuit has explained that, in the FOIA context, when

32

879 F.2d 873, 878 (D.C. Cir. 1989) (citing Arieff, 712 F.2d at 1468); see also ACLU v.

DOD, 543 F.3d at 86 (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") (Exemptions 6 and 7(C)); 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).

33

879 F.2d at 878.

34

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 at 285 ("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))).

Department of Justice Guide the the Freedom of Information Act

Exemption 6

10

assessing the weight of a protectible privacy interest, "[a] substantial privacy interest is

anything greater than a de minimis privacy interest."

35

As discussed above, 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 the public interest in

disclosure outweighs the individual privacy concerns.'"

36

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."

37

Substantial privacy

interests cognizable under the FOIA are generally found to exist in such personally

identifying information as a person's name, address, image, computer user ID, phone

number, date of birth, criminal history, medical history, and social security number.

38

35

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).

36

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 62, 66 (2nd Cir. 2008)

("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)).

37

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).

38

See Dep't of State v. Wash. Post Co., 456 U.S. 595, 600 (1982) (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 at 65 ("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));

Performance Coal Co. v. U.S. Dep't of Labor, No. 10-1698, 2012 WL 746411, at *8 (D.D.C.

Mar. 7, 2012) (concluding that defendants properly withheld "miners' names, cell phone

numbers, and home phone numbers; inspectors' names and e-mail addresses; inspectors'

initials; MSHA employees' government issued cell phone numbers, home addresses, and

home telephone numbers; third party home addresses, dates of birth, last four digits of

social security numbers; and miners' job titles and ethnicities" contained in law

enforcement records) (Exemption 7(C)); Strunk v. U.S. Dep't of State, No. 08-2234, 2012

WL 562398, at *5 (D.D.C. Feb. 15, 2012) (concluding that defendant properly withheld

"'unique characters constituting a terminal user ID which is generally assigned to a single

person or system user'" and which could identify the agency employee who accessed the

record); Advoc. for Highway & Auto Safety v. Fed. Highway Admin., No. 98-306, 2011 WL

Department of Justice Guide the the Freedom of Information Act

Exemption 6

11

Practical Obscurity and Survivor Privacy

The FOIA's broad conception of privacy also encompasses the doctrines of

"practical obscurity" and "survivor privacy." As to "practical obscurity," while as a

general rule individuals have no privacy interest in information that has been previously

disclosed, in United States Department of Justice v. Reporters Committee for Freedom

of the Press, the Supreme 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, if the information has over time become "practically obscure."

39

4840463, at *5 (D.D.C. Oct. 13, 2011) (noting that "the drivers have a privacy interest in

their videotaped images from the study" to the extent that they reveal "personal details,

captured up close and over a prolonged period of time, [which] are not generally available in

the ordinary course of daily life"); Skinner v. DOJ, 806 F. Supp. 2d 105 (D.D.C. 2011)

(holding that agencies properly withheld names and identifying information related to law

enforcement personnel and the face of a third party) (Exemption 7(C)); Mingo v. DOJ, 793

F. Supp. 2d 447, 456 (D.D.C. 2011) (finding a privacy interest in videotapes of inmates and

in medical records of inmates and staff) (Exemption 7(C)); Showing Animals Respect &

Kindness v. Dep't of the Interior, 730 F. Supp. 2d 180, 197 (D.D.C. 2010) (finding that, with

respect to photographs, "[t]he fact that it may be obvious to Plaintiff whose faces or names

are redacted . . . does not mean that the subjects of those redactions have no privacy interest

in avoiding disclosure"); 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. v. Nat'l

Park Serv., 503 F. Supp. 2d 284, 304, 306 (D.D.C. 2007) (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)). But see Int'l Counsel Bureau v. DOD,

723 F. Supp. 2d 54, 66 (D.D.C. 2010) (rejecting DOD's assertion that disclosure of

photographs of detainees "'would risk both [their] safety upon release, through reprisals,

and would undermine their likely willingness to cooperate with the intelligence collection

activities'").

39

489 U.S. 749, 762, 764, 767, 780 (1989) (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").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

12

As the Supreme Court held, 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.

40

The Reporters

Committee decision and its progeny have thus 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.

41

That is, such individuals may have a

privacy interest in maintaining the information's "practical obscurity."

42

The Court of

40

Reporters Comm., 489 U.S. at 764.

41

See id. at 780.

42

Id.; see, e.g., Associated Press v. DOJ, 549 F.3d 62, 65 (2d Cir. 2008) (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, 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 v. Gonzales, 404 F. Supp. 2d 246, 257-59 (D.D.C.

2005) (holding, under Exemption 6, that law enforcement records that were previously

given to symposium members fall within "practical obscurity" rule); Dayton Newspapers,

Inc. v. VA, 257 F. Supp. 2d 988, 1010 (S.D. Ohio 2003) (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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

13

Appeals for the District of Columbia Circuit has noted, however, that computerized

databases may minimize the extent to which practical obscurity applies to conviction

data.

43

"Survivor privacy" is also encompassed within the Act's privacy exemptions.

44

In

NARA v. 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 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

The Court held that "survivor privacy" was a valid privacy interest protected by

Exemption 7(C) based on three factors. First, the Court had previously ruled in

Reporters Committee that FOIA's personal privacy protection was not "some limited or

PACER and the common record retention practice of federal courts, are for some reason not

actually still publicly available").

43

See ACLU v. DOJ, 655 F.3d 1, 12 (D.C. Cir. 2011) ("[D]isclosure under FOIA [will not]

make that information any more accessible than it already is through publicly available

computerized databases.") (Exemption 7(C)).

44

See NARA v. Favish, 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).

45

541 U.S. at 167; see also FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy'

Case" (posted 5/13/03; supplemented 10/10/03) (chronicling case's history).

46

541 U.S. at 166.

47

Id. at 170.

48

Id. at 168.

49

Id. at 167.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

14

'cramped notion' of that idea,"

50

and so was broad enough to protect surviving family

members' "own privacy rights against public intrusions."

51

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."

52

Third, the Court reasoned that Congress used that

background in creating Exemption 7(C), including the fact that the government-wide

FOIA policy memoranda of two Attorneys General had specifically extended privacy

protection to families.

53

Thus, the Favish decision endorsed the holdings of several

lower courts in recognizing that surviving family members have substantial privacy

interests in sensitive, often graphic, personal details about the circumstances

surrounding an individual's death.

54

50

Id. at 165.

51

Id. at 167.

52

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").

53

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)).

54

See, e.g., Hale v. DOJ, 973 F.2d 894, 902 (10th Cir. 1992) (finding "personal privacy

interests of the victim's family" outweigh non-existent public interest) (Exemption 7(C));

Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (affirming nondisclosure of autopsy

reports of individuals killed by cyanide-contaminated products); N.Y. Times Co. v. NASA,

920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc) (affirming withholding of 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); 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); 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 medical descriptions of the cause of death,"

Department of Justice Guide the the Freedom of Information Act

Exemption 6

15

Derivative Privacy Invasion

Courts have found that an invasion of privacy need not occur immediately upon

disclosure in order to be considered "clearly unwarranted."

55

As the Court of Appeals

for the District of Columbia 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."

56

One court has pragmatically observed

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).

55

See National Ass'n of Retired Federal Employees v. Horner [hereinafter NARFE], 879

F.2d 873, 878 (D.C. Cir. 1989) ("In virtually every case in which a privacy concern is

implicated, someone must take steps after the initial disclosure in order to bring about the

untoward effect."); Hudson v. Dep't of the Army, No. 86-1114, 1987 WL 46755, at *3 (D.D.C.

Jan. 29, 1987) ("While [possible threats and harassment] may be characterized as a sort of

“secondary effect,” to give credence to the distinction [between the original invasion of

privacy and its possible effects] is to honor form over substance."), aff'd, 926 F.2d 1215 (D.C.

Cir. 1991) (unpublished table decision).

56

NARFE, 879 F.2d at 878; see, e.g., NARA v. Favish, 541 U.S. 157, 167-70 (2004)

(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 6, 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 v. DOJ, 552 F. Supp. 2d 23, 30

(D.D.C. 2008) ("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."); 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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

16

that to distinguish between the initial disclosure and unwanted intrusions that result

from disclosure would be "to honor form over substance."

57

For instance, 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, even though the invasion would occur only after

"manipulat[ion] [of the square and lot numbers] to derive the addresses of policyholders

and potential policyholders."

58

The Tenth Circuit found that 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."

59

In another case considering derivative privacy invasions, Prudential Locations

LLC v. HUD, the Court of Appeals for the Ninth Circuit considered the consequences of

disclosure of the names of individuals who sent emails to an agency alleging that a

business had violated a federal statute.

60

In holding that the names should be withheld,

the court found that the authors of the emails "could easily be adversely affected if their

identities became known."

61

The court noted that the authors were vulnerable "to

retaliation such as loss of employment or loss of business" and "the possibility of a civil

lawsuit," concluding that there was a "significant risk of harassment, retaliation, stigma,

or embarrassment of the authors if their identities [were] revealed."

62

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");

cf. N.Y. Times, Co. v. U.S. Dep't of the Treasury, No. 09-10437, 2010 WL 4159601, at *5

(S.D.N.Y. Oct. 13, 2010) (noting that privacy interest is weak due to "lack of evidence that

any of the corporate licensees – whose identities were released to the Times – have faced

any negative consequences following that disclosure").

57

Hudson, 1987 WL 46755, at *3 (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, 601 F. Supp. at

1006-07 (D.D.C. 1985) (same).

58

410 F.3d 1214, 1220-21 (10th Cir. 2005).

59

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).

60

No. 09-16995, 2013 WL 5539618 (9th Cir. Oct. 9, 2013).

61

Id. at *7.

62

Id.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

17

There have been occasions, though, where this concept of derivative privacy has

been questioned.

63

Moreover, even when courts recognize a derivative privacy invasion

that results after the release of the requested information, they do not always find that

invasion to be clearly unwarranted. In Multi Ag Media LLC v. USDA, the D.C. Circuit

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.

64

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."

65

Despite

this invasion of privacy, the court concluded that the information should be disclosed in

light of a strong public interest in USDA's administration of certain subsidy and benefit

programs.

66

Similarly, in ACLU v. DOJ, the D.C. Circuit considered the release of court docket

information, finding that "it would take little work for an interested person to use the . . .

information . . . to look up the underlying case files in the public records of the courts,

and therein find the information of interest."

67

The court found that the requester's plan

to use this information to contact individuals was relevant to the consideration of the

privacy interest.

68

Nevertheless, the court held that, unlike the rap sheets that were at

63

See 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 agreements could be used to trace individual permittees); Dayton Newspapers,

Inc., 257 F. Supp. 2d at 1001-05 (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).

64

515 F.3d 1224, 1230 (D.C. Cir. 2008).

65

Id.; see, e.g., Seized Prop. Recovery v. U.S. Customs & Border Prot., 502 F. Supp. 2d 50,

58 (D.D.C. 2007) ("[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)).

66

Multi Ag, 515 F.3d at 1233.

67

655 F.3d 1, 6-7 (D.C. Cir. 2011) (Exemption 7(C)).

68

Id. at 11 ("There is no doubt that the courts have held that the risk of unwanted contact

following a FOIA disclosure is a privacy interest that must be weighed in the privacy

interest/public interest balance.").

Department of Justice Guide the the Freedom of Information Act

Exemption 6

18

issue in Reporters Committee, "even if the docket information is used to find the

underlying proceedings, for any particular individual it mostly likely would reveal only a

single prosecution, rather than a comprehensive scorecard of the person's entire

criminal history" and thus privacy intrusions would be "marginal."

69

In another case considering the extent of privacy intrusions that could result

from release, the District Court for the Southern District of New York noted that "[t]he

mere fact that someone might seek to interview a [third party] does not mean . . . that

the individual would be subject to opprobrium or harassment" so as to cause a clearly

unwarranted invasion of personal privacy.

70

In fact, one court has held that potentially

exposing an individual to opprobrium [infamy or shame] is not necessarily a clearly

unwarranted invasion of privacy. In Showing Animals Respect & Kindness v. United

States Department of Interior, the District Court for the District of Columbia held that,

with regard to video recordings of targets of an agency investigation, "[t]o the extent

that Defendants seek to protect [third parties] from opprobrium based on their unlawful

conduct, such an invasion of privacy is not necessarily unwarranted."

71

Expectations of Privacy

In some instances, the disclosure of information might involve no invasion of

privacy because, fundamentally, the information is of such a nature that little or no

expectation of privacy exists.

72

For example, the District Court for the District of

69

Id. at 8, 12.

70

N.Y. Times, Co. v. U.S. Dep't of the Treasury, No. 09-10437, 2010 WL 4159601, at *4

(S.D.N.Y. Oct. 13, 2010).

71

730 F. Supp. 2d 180, 193 (D.D.C. 2010) (noting that privacy interests in video recordings

made by subject of investigation are "quite attenuated," because "[u]nlike surveillance tapes

that capture a person's image without their consent, the videos at issue here were created

. . . expressly for distribution to the public . . . for later use on television or a music video").

72

See, e.g., Ditlow v. Shultz, 517 F.2d 166, 172 (D.C. Cir. 1975) (finding that, with regard to

travelers' names in customs forms, both "the absence of a governmental assurance of

confidentiality" and "agency assertion of authority to make discretionary disclosure" would

"undercut the privacy expectations protected by exemption 6"); People for the Am. Way

Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284, 306 (D.D.C. 2007) ("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."); 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).

Department of Justice Guide the the Freedom of Information Act

Exemption 6

19

Columbia ruled decades ago that FOIA requesters do not ordinarily expect that their

names will be kept private,

73

although a more recent opinion by the Court of Appeals for

the Seventh Circuit reached a different conclusion, holding that a requester's name

could be withheld.

74

The District Court for the District of Columbia has held that the

names of individuals submitting comments to proposed agency rules should be released

when the rulemaking notice "specified that '[t]he complete file for this proposed rule is

available for inspection'" and comments were made voluntarily.

75

By contrast, the majority of courts to have considered the issue have held that

individuals who write to the government expressing personal opinions generally have

some expectation of confidentiality, and their identities, but not necessarily the

substance of their letters, ordinarily have been withheld.

76

For instance, the Court of

73

Agee v. CIA, 1 Gov't Disclosure Serv. (P-H) ¶ 80,213 at 80,532 (D.D.C. Jul. 23, 1980)

("FOIA requesters . . . have no general expectation that their names will be kept private.");

see also 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); Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981) (finding that FOIA

requesters "freely and voluntarily addressed their inquiries to the IRS, without a hint of

expectation that the nature and origin of their correspondence would be kept confidential").

But cf. 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 & Supp. IV 2010), 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).

74

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) (Exemption

7(C)).

75

Alliance for the Wild Rockies, 53 F. Supp. 2d at 36-37.

76

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 291, 297 (D.D.C. 2005) (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 v. FBI, 940 F.

Supp. 323, 329-30 (D.D.C. 1996) ("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.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

20

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

tax-exempt status.

77

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.

78

The

Court of Appeals for the Ninth Circuit found a "cognizable privacy interest" in the names

of individuals who wrote to HUD alleging that a business had violated a federal

statute.

79

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.

80

Nevertheless, in some circumstances courts have refused to accord

privacy protection to such government correspondents.

81

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 at 564

(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)).

77

See Judicial Watch, Inc. v. United States, 84 F. App'x at 337.

78

See Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 28 (D.D.C. 2003) (Exemption

7(C)).

79

See Prudential Locations LLC v. HUD, No. 09-16995, 2013 WL 5539618, at *6 (9th Cir.

Oct. 9, 2013) (holding that "in light of the repeated pronouncements of HUD's

confidentiality policy," authors of emails to HUD alleging violations of federal statute "had

reasonable expectations that HUD would protect their confidentiality even without a

specific request that it do so").

80

Gordon v. FBI, 388 F. Supp. 2d 1028, 1041-42, 1045 (N.D. Cal. 2005) (Exemptions 6 and

7(C)).

81

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 change the video outweighs any privacy interest in one's name."); Lardner

v. DOJ, No. 03-0180, 2005 WL 758267, at *17, *19 (D.D.C. Mar. 31, 2005) (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.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

21

Federal Employees

Civilian federal employees who are not involved in law enforcement or sensitive

occupations generally have no expectation of privacy regarding their names, titles,

grades, salaries, and duty stations as employees

82

or regarding the parts of their

successful employment applications that show their qualifications for their positions.

83

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).

82

See OPM Regulation, 5 C.F.R. § 293.311 (2011) (specifying that certain information

contained in federal employee personnel files is generally 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 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 [low-

ranking GSA employee's] awards would constitute more than a de minimis invasion of

privacy").

83

See Knittel v. IRS, No. 07-1213, 2009 WL 2163619, at *6 (W.D. Tenn. July 20, 2009)

(holding that agency is incorrect in its assertion that it is only required to disclose

information about employees specifically listed in OPM's regulation, as categories

mentioned there are "not meant to be exhaustive"); 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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

22

However, those employees have a protectible privacy interest in purely personal details

that do not shed light on agency functions.

84

Indeed, courts generally have recognized

the sensitivity of information contained in personnel-related files and have accorded

protection to the personal details of a federal employee's service.

85

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).

84

See, e.g., DOD v. FLRA, 510 U.S. 487, 500 (1994) (protecting federal employees' home

addresses); Pub. Emps. for Envtl. Resp. v. U.S. Sec. Int'l Boundary & Water Comm'n, 839 F.

Supp. 2d 304, 323-24 (D.D.C. 2012) (protecting private contact information of emergency

personnel whose names appear in emergency action plans); Morales v. Pension Benefit

Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101, at *12 (D. Md. Jan. 26, 2012)

(protecting handwritten Flex Time sign-in sheets on which employees sign in and out of

work); Wilson v. United States Air Force, No. 08-324, 2009 WL 4782120, at *4 (E.D. Ky.

Dec. 9, 2009) (finding that signatures, personal phone numbers, personal email addresses,

and government email addresses were properly redacted); 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. 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).

85

See, e.g., Ripskis v. HUD, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (names and identifying data

contained on evaluation forms of HUD employees who received outstanding performance

ratings); Ferrigno v. DHS, No. 09-5878, 2011 WL 1345168, at *8 (S.D.N.Y. Mar. 29, 2011)

(determining that "the Supervisor, the Investigator, and the interviewees whose statements

are recorded in the memoranda at issue all have a more than de minimus privacy interest in

these memoranda, as being identified as part of Plaintiff's [employment-related

harassment] complaint could subject them to embarrassment and harassment"); Wilson v.

Dep't of Transp., 730 F. Supp. 2d 140, 156 (D.D.C. 2010) (concluding that "[b]ecause [Equal

Department of Justice Guide the the Freedom of Information Act

Exemption 6

23

Generally, federal employees have a privacy interest in their job performance

evaluations.

86

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.

87

Moreover, release of

Employment Opportunity] charges often concern matters of a sensitive nature, an EEO

complainant has a significant privacy interest"), aff'd, No. 10-5295, 2010 WL 5479580 (D.C.

Cir. Dec. 30, 2010); 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).

86

See, e.g., Smith v. Dep't of Labor, 798 F. Supp. 2d 274, 283-85 (D.D.C. 2011) (affirming

agency's redaction of personal and job-performance information); see also Bonilla v. DOJ,

798 F. Supp. 2d 1325, 1332 (S.D. Fla. 2011) (recognizing a privacy interest in reference

letters revealing "colleagues' personal opinions of [an AUSA] as a person and as a

prosecutor"); Long v. OPM, No. 05-1522, 2010 WL 681321, at *18 (N.D.N.Y. Feb. 23, 2010)

(concluding that "employees' interest in keeping performance based awards, or the lack

thereof, private outweighs any public interest in disclosure of this information"), aff'd on

other grounds, 692 F.3d 185 (2d Cir. 2012); 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)).

87

Ripskis, 746 F.2d at 3; see Hardison v. Sec'y of VA, 159 F. App'x 93, 93 (11th Cir. 2005)

(performance appraisals); FLRA v. U.S. Dep't of Commerce, 962 F.2d at 1059-61

(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, 2004

Department of Justice Guide the the Freedom of Information Act

Exemption 6

24

such information "reveals by omission the identities of employees who did not receive

high ratings, creating an invasion of their privacy."

88

Employees may also retain a

privacy interest in employment related misconduct

89

and mistakes,

90

although the

higher the level of the employee, the greater the public interest will be in disclosure.

91

(See further discussion of this point under FOIA Public Interest, below.)

Further, the identities of employees who provide information to investigators are

generally protected.

92

In addition, the identities of persons who apply but are not

WL 1234043, at *4 ("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 personal, 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).

88

FLRA v. U.S. Dep't of Commerce, 962 F.2d at 1059.

89

See, e.g., Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2012 WL 424376, at *8 (D.N.H.

Feb. 9, 2012) (noting that "[a]lthough a government employee investigated for

performance-related misconduct 'generally possesses a diminished privacy interest' in

comparison to private individuals, 'an internal criminal investigation would not invariably

trigger FOIA disclosure of the identity of a targeted government employee'"); Steese, Evans

& Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401, at *22, 25 (D. Colo. Dec.

7, 2010) (finding "overwhelming" privacy interests in employees' identities where the

"public was informed that employees were found to have spent hours at work viewing

sexually explicit sites;" holding that disclosure would "reflect[] on the employees' sexual

needs and/or desires" and could be the source of "'severe personal and professional harm

including embarrassment and disgrace'").

90

See, e.g., Am. Small Bus. League v. Dep't of the Interior, No. 11-1880, 2011 U.S. Dist.

LEXIS 114752, at *12 (N.D. Cal. Oct. 5, 2011) (determining that "invasion of [employees']

privacy is not warranted" because their "right of privacy is greater than the public interest

served by disclosure of their [names and contact information in an OIG report in which the

writers disclose their own mistakes]").

91

See, e.g., CASA de Maryland, Inc. v. DHS, 409 F. App'x 697 (4th Cir. 2011) (per curiam)

(affirming district court's decision ordering disclosure of names contained in an internal

investigation report authored by DHS's Office of Professional Responsibility in light of

evidence produced by plaintiff indicating that agency impropriety might have occurred);

Stern, 737 F.2d at 94 (finding employees' level of seniority to be relevant to public interest

in disclosure) (Exemption 7(C)).

92

See, e.g., McCann v. HHS, No. 10-1758, 2011 WL 6251090, at *3 (D.D.C. Dec. 15, 2011)

(finding that assertion of Exemption 6 to protect identities of "'individuals who provided

information to an investigator who was conducting an investigation into Plaintiff's

HIPAA complaint'" was appropriate, and disclosure "'could reasonably be expected to

cause potential harassment or misuse of the [witness'] information'"); Am. Small Bus.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

25

selected for federal government employment may be protected.

93

Even suggestions

submitted to an Employee Suggestion Program have been withheld to protect employees

with whom the suggestions are identifiable from the embarrassment that might occur

from disclosure.

94

Federal employees involved in law enforcement, as well as military personnel and

employees in sensitive occupations, do possess, by virtue of the nature of their work,

substantial privacy interests in their identities and work addresses.

95

In light of this

League, 2011 U.S. Dist. LEXIS 114752, at *10 (holding that agency properly withheld

contracting officer and employee names and contact information in Office of the

Inspector General workpapers).

93

See, e.g., 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 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 v. CIA, No. 91-1233, 1992 WL 233820, at *13-15 (D.D.C. Aug. 31,

1992) (protecting identity of person not selected as CIA general counsel).

94

See Matthews v. USPS, No. 92-1208-CV-W-8, slip op. at 5 (W.D. Mo. Apr. 15, 1994).

95

See Long v. OPM, 692 F.3d 185, 194 (2d Cir. 2012) (holding that OPM properly withheld

both names and duty-station information for over 800,000 federal employees in five

sensitive agencies and twenty-four sensitive occupations, including, inter alia, correctional

officer, U.S. Marshal, nuclear materials courier, internal revenue agent, game law

enforcement, immigration inspection, customs and border interdiction, and border

protection); Moore v. Obama, No. 09-5072, 2009 WL 2762827, at *1 (D.C. Cir. Aug. 24,

2009) (unpublished disposition) (per curiam) ("Appellant fails to demonstrate that the

Federal Bureau of Investigation improperly withheld the names and a phone number of its

employees pursuant to FOIA Exemptions 6 and 7(C)."); Lahr v. NTSB, 569 F.3d 964, 977

(9th Cir. 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), cert.

denied, 130 S. Ct. 3493 (2010); Wood v. FBI, 432 F.3d 78, 87-89 (2d Cir. 2005) (protecting

Department of Justice Guide the the Freedom of Information Act

Exemption 6

26

privacy 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."

96

For law enforcement personnel

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)); Families for

Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896, at *9

(S.D.N.Y. Dec. 27, 2011) (finding that "disclosure of the names, phone numbers, and email

addresses of government employees [in emails compiled for law enforcement purposes]

implicates more than a de minimis privacy interest of those employees") (Exemption 7(C));

Lewis v. DOJ, No. 09-746, 2011 WL 5222896, at *13 (D.D.C. Nov. 2, 2011) (observing that

that although "[a] government employee's privacy interest may be diminished by virtue of

his government service, . . . he retains an interest nonetheless") (Exemption 7(C)); Banks v.

DOJ, 813 F. Supp. 2d 132, 142 (D.D.C. 2011) (determining that agency properly redacted law

enforcement personnel's names and telephone numbers "from a list of newspapers");

Amnesty Int'l USA v. CIA, 728 F. Supp. 2d 479, 523 (S.D.N.Y. 2010) (holding that the CIA

properly withheld "names and email addresses of DOD personnel below the office-director

level, or officers below the rank of Colonel; the names of OLC line attorneys, persons

interviewed by the CIA OIG, and one detainee; and personally identifying information such

as dates of birth, social security numbers, and biographical information"), subsequent

opinion, No. 07-5435, 2010 WL 5421928 (S.D.N.Y. Dec. 21, 2010) (Exemptions 6 and 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 lower-level 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).

96

Department of Defense Director for Administration and Management Memorandum for

DOD FOIA Offices 1-2 (Nov. 9, 2001) (noting that, by contrast, 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 Long, 692 F.3d at 192 (finding that federal employees in

Department of Justice Guide the the Freedom of Information Act

Exemption 6

27

in particular, these privacy interests are generally protected under Exemption 7(C).

97

(For a more detailed discussion of the privacy protection accorded law enforcement

personnel, see the chapter on Exemption 7(C).)

Information in the Public Domain

sensitive agencies and occupations "have a cognizable privacy interest in keeping their

names from being disclosed wholesale"); Am. Mgmt. Servs., LLC v. Dep't of the Army, No.

11-442, 2012 U.S. Dist. LEXIS 8124, at *10 (E.D. Va. Jan. 23, 2012) (holding that DOD

employees have a "substantial privacy interest" in their names and contact information);

Schoenman v. FBI, 573 F. Supp. 2d 119, 160 (D.D.C. 2008) (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"); 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 v. DOD, 463

F. Supp. 2d 317, 327 (E.D.N.Y. 2006) (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)).

97

See Pinson v. Lappin, 806 F. Supp. 2d 230, 234 (D.D.C. 2011) (noting that the Bureau of

Prisons properly redacted telephone numbers and email addresses of staff at certain offices

"both because this information was not requested . . . and because this information is

exempt from disclosure"); 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 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)).

Department of Justice Guide the the Freedom of Information Act

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28

Individuals generally do not possess substantial privacy interests in information

that is particularly well known or is widely available within the public domain.

98

Likewise, an individual generally does not have substantial privacy interests with

respect to information that he or she has made public.

99

The Court of Appeals for the

98

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)); Hussein v. Mabus, No. 09-1988, 2010 US Dist.

LEXIS 114830, at *4 (D.S.C. Oct. 28. 2010) (holding that "certain personnel and medical

files," are protected "to the extent that they were not already publically available in the

course of the public bidding process"), aff'd on other grounds, 414 F. App'x 518 (4th Cir.

2011); 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 World

Publ'g Co. v. DOJ, 672 F. 3d 825, 829 (10th Cir. 2012) (holding that "[e]xcept in limited

circumstances, such as the attempt to capture a fugitive, a USMS booking photograph

simply is not available to the public," and that "[p]ersons arrested on federal charges outside

of the Sixth Circuit maintain some expectation of privacy in their booking photos")

(Exemption 7(C)); Karantsalis v. DOJ, 635 F.3d 497, 503 (11th Cir. 2011) (per

curiam) (finding "booking photographs are generally not available for public dissemination .

. . which suggests the information implicates a personal privacy interest") (Exemption 7(C));

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)).

99

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));

Associated Press v. DOD, 410 F. Supp. 2d 147, 150 (D.D.C. 2006) (holding Guantanamo Bay

military detainees had no privacy interests in their identifying information because they

provided the information at formal legal proceedings before tribunal and there was no

evidence that detainees "were informed that the proceedings would remain confidential in

any respect"); 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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

29

District of Columbia 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.

100

In 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."

101

Although public knowledge diminishes an individual's privacy interests in that

information, 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

speaking to a reporter on the record and therefore could not expect to keep private the

substance of the interview").

100

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)); see also Avondale Indus. v.

NLRB, 90 F.3d 955, 961 (5th Cir. 1996) (finding that names and addresses of voters in union

election 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 v. DOJ, 552 F. Supp. 2d 23, 30-31 (D.D.C. 2008) (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"); 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.").

101

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)); Citizens for Responsibility & Ethics in Wash. v. DOJ, 846 F. Supp. 2d 63, 72 (D.D.C.

2012) (determining that Congressman who was investigated "retains a cognizable privacy

interest in the requested records," because although he publicly acknowledged existence of

investigation, "the details of that investigation have not been publicly disclosed")

(Exemption 7(C)); 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").

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30

in preventing further dissemination to the public at large.

102

For example, the Supreme

Court in NARA v. 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

102

See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 n.3

(9th Cir. 2008) ("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 Forest Service's ability to apply

Exemption 6 to redact the identities from the Report."); Horowitz v. Peace Corps, 428 F.3d

271, 280 (D.C. Cir. 2005) ("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.");

Sensor Sys. Support, Inc. v. FAA, 851 F. Supp. 2d 321, 335 (D.N.H. 2012) (noting that "'[a]n

individual's interest in controlling the dissemination of information regarding personal

matters [such as one's home address] does not dissolve simply because that information

may be available to the public in some form'") (Exemptions 6 and 7(C)); Barnard v. DHS,

598 F. Supp. 2d 1, 12 (D.D.C. 2009) ("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 v. Dep't of

Transp., No. 07-2590, 2008 WL 4482855, at *21 (N.D. Cal. Sept. 30, 2008) (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

v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008) ("[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 v. U.S. Dep't of the Air Force, 63 F. Supp. 2d

738, 743 (E.D. Va. 1999) (stating that existence of publicity surrounding events does not

eliminate privacy interest) (Exemptions 6 and 7(C)); cf. Schiffer v. FBI, 78 F.3d 1405, 1411

(9th Cir. 1996) (treating requester's personal knowledge as irrelevant in assessing privacy

interests).

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31

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."

103

Furthermore, 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 signatures,

do not waive their privacy interests.

104

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]."

105

Similarly, 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,

106

nor do

individuals who plead guilty to criminal charges lose all rights to privacy with regard to

the proceedings against them.

107

Similarly, individuals who provide law enforcement

103

541 U.S. 157, 166-71 (2004); 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)).

104

See Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1188 (8th Cir. 2000).

105

Id.

106

See, e.g., Isley v. EOUSA, No. 98-5098, 1999 WL 1021934, at *4 (D.C. Cir. Oct. 21, 1999);

Kiraly v. FBI, 728 F.2d 273, 279 (6th Cir. 1984); Brown v. FBI, 658 F.2d 71, 75 (2d Cir.

1981); see also Sellers v. DOJ, 684 F. Supp. 2d 149, 160 (D.D.C. 2010) ("A witness does not

waive his or her interest in personal privacy by testifying at a public trial."); Scales v.

EOUSA, 594 F. Supp. 2d 87, 91 (D.D.C. 2009) ("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 v. ATF, No. 07-111, 2008 WL 2620741, at

*13 (N.D. Fla. June 30, 2008) ("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)).

107

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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

32

agencies with reports of illegal conduct have well-recognized privacy interests,

particularly when such persons reasonably fear reprisals for their assistance.

108

Even

beyond the actual criminal proceedings . . . preserves, in its unique and visually powerful

way, the subject individual's brush with the law for posterity"); McNamera v. DOJ, 974 F.

Supp. 946, 959 (W.D. Tex. 1997) (holding that convict's privacy rights are diminished only

with respect to information made public during criminal proceedings against him)

(Exemption 7(C)); cf. ACLU v. DOJ, 655 F.3d at 17 (noting "distinction between indictments

resulting in convictions or guilty pleas, and those resulting in acquittals or dismissals, or

cases that remain sealed," as privacy concerns are potentially greater for cases that resulted

in acquittal or dismissal and those that are sealed). But see Rosenfeld v. DOJ, No. 07-3240,

2012 WL 710186, at *5 (N.D. Cal. Mar. 5, 2012) (finding that "the fact that the documents

concerns [forty year] old traffic violations as opposed to more serious criminal prosecutions

decreases the likely stigma that would follow such a disclosure" and "[a]s the likely stigma of

disclosure falls, so too does the privacy interest at issue").

108

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 Ass'n v. FBI, 683 F.2d 562, 564-65 (D.C. Cir. 1982) (MacKinnon, J.,

concurring) (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)); Rimmer v. Holder, 10-1106, 2011 U.S.

Dist. LEXIS 107883, at *25-26 (M.D. Tenn. Sept. 22, 2011) (finding "heightened privacy

protections . . . are owed to . . . individuals who willingly provide potentially incriminating

information to law enforcement") (Exemption 7(C)); Moffat v. DOJ, No. 09-12067, 2011 WL

3475440, at *17 (D. Mass. Aug. 5, 2011) (finding that, with respect to information pertaining

to individuals interviewed by the FBI in the course of criminal investigations, "disclosure

could subject these individuals to harassment, intimidation, threats, or even economic and

physical harm, which could deter this kind of assistance to the FBI in the future")

(Exemption 7(C)); Amuso v. DOJ, 600 F. Supp. 2d 78, 93 (D.D.C. 2009) ("Disclosure of the

interviewee's identity could result in harassment, intimidation, or threats of reprisal or

physical harm to the interviewee."); Clemmons v. U.S. Army Crime Records Ctr., No. 05-

02353, 2007 WL 1020827, at *6 (D.D.C. Mar. 30, 2007) (stating that "there is a significant

interest in maintaining 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 low-level 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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

33

absent any evidence of fear of reprisals, witnesses who provide information to

investigative bodies -- administrative and civil, as well as criminal -- ordinarily are

accorded privacy protection.

109

(For a more detailed discussion of the privacy protection

accorded such law enforcement sources, see the chapter on Exemption 7(C).)

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)).

109

See, e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) (finding that witnesses and

third parties possess "strong privacy interests, because being identified as part of a law

enforcement investigation could subject them to 'embarrassment and harassment,'

especially if 'the material in question demonstrates or suggests they had at one time been

subject to criminal investigation'" (quoting Halpern v. FBI, 181 F.3d 279, 297 (2d Cir.

1999))) (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., 846 F. Supp. 2d at 73 (noting that "in

particular, informants and witnesses, have a significant interest in [the files'] contents not

being disclosed") (Exemption 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 v. United States, No. 04-832, 2005 WL

465382, at *5 n.7 (E.D. Pa. Feb. 28, 2005) (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 (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). 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 v. Harvey, 407 F. Supp. 2d 13, 17 (D.D.C. 2005) (deciding that witness

Department of Justice Guide the the Freedom of Information Act

Exemption 6

34

Passage of Time

As a general rule, the passage of time serves to increase an individual's privacy

interests, even in personal information that was once publically available.

110

However,

the District Court for the Northern District of California has found that an individual's

privacy interests were "low" in a document concerning traffic violations that occurred

forty years previously.

111

Corporations and Business Relations

The Supreme Court has held that corporations do not possess personal privacy

interests under the FOIA.

112

A closely held corporation or similar business entity is

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").

110

See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) ("[T]he

extent of the protection accorded a privacy right at common law rested in part on the degree

of dissemination of the allegedly private fact and the extent to which the passage of time

rendered it private."); ACLU v. DOJ, 655 F.3d 1, 9 (D.C. Cir. 2011) (distinguishing

information that is "less than (and probably quite a bit less than) ten years old," from the

Reporters Committee "rap sheets that recorded a lifetime of everything from major crimes

to youthful indiscretions") (Exemption 7(C)); Roth v. DOJ, 642 F.3d 1161, 1174 (D.C. Cir.

2011) (finding that "if . . . the passage of approximately a half century did not 'materially

diminish' individuals' privacy interests in not being associated with McCarthy-era

investigations, then certainly individuals continue to have a significant interest in not being

associated with an investigation into a brutal quadruple homicide committed less than

thirty years ago" (quoting Shrecker v. DOJ, 349 F.3d 657, 666 (D.C. Cir. 2003)))

(Exemption 7(C)).

111

Rosenfeld v. DOJ, No. 07-3240, 2012 WL 710186, at *4 (N.D. Cal. Mar. 5, 2012).

112

See FCC v. AT&T, Inc., 131 S. Ct. 1177, 1182 (2011) (finding that in common usage the

term "'[p]ersonal' ordinarily refers to individuals" and that the word is not used to "refer[]

to corporations or other artificial entities") (Exemption 7(C)); see also 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)

Department of Justice Guide the the Freedom of Information Act

Exemption 6

35

treated differently, however, as the Court of Appeals for the District of Columbia Circuit

has held that "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.'"

113

Similarly, in Doe v.

Veneman, 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.

114

Moreover, when a record reflects personal details 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.

115

For

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").

113

Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1228-29 (D.C. Cir. 2008) (quoting Nat'l

Parks, 547 F.2d at 685); see, e.g., Consumers' Checkbook Ctr. for the Study of Servs. v. HHS,

554 F.3d 1046, 1051 (D.C. Cir. 2009) ("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 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).

114

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).

115

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); Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL

Department of Justice Guide the the Freedom of Information Act

Exemption 6

36

example, the District Court for the District of Columbia has found that names and

organizations associated with personal visits with the Chairman of the Board of

Governors of the Federal Reserve System were properly redacted from visitor logs.

116

On the other hand, the Court of Appeals for the Ninth Circuit has found that the release

of telecommunication industry lobbyists' names did not constitute a clearly

unwarranted invasion of personal privacy, as "government acknowledgment of a

lobbyist's lobbying activities does not reveal 'sensitive personal information' about the

individual rising to a 'clearly unwarranted invasion of personal privacy.'"

117

Similarly,

courts have found 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,

118

although privacy

has still been afforded at times.

119

336160, at *16 (D.D.C. Feb. 2, 2012) (holding that the FCC properly invoked Exemption 6 to

withhold "the names and personal identifying information of officers, employees, and

representatives of [plaintiff's competitors]" because "the private interest in non-disclosure

outweighs the public interest in disclosure"); 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).

116

Judicial Watch, Inc. v. Bd. of Gvn'rs of Fed. Reserve Sys., 773 F. Supp. 2d 57, 62 (D.D.C.

2011) (concluding that "visitors have at least some privacy interest in protecting their names

from disclosure, as it is quite conceivable that parties other than [plaintiff] might be

interested in obtaining the names of individuals personally affiliated with high-ranking

members of the Board").

117

Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 639 F.3d 876, 888 (9th

Cir. 2010) (quoting Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1126 (D.C. Cir. 2004).

118

See, e.g., W. Watersheds Proj. & Wildearth Guardians v. BLM, No, 09-482, 2010 U.S.

Dist. LEXIS 95379, at *4, *41 (D. Id. Sept. 13, 2010) (finding that two categories of

permittees [i.e., "entities listed under a personal name along with the words 'Ranch' or

'Farm'"] have only a "minimal" privacy interest in the disclosure of their names and/or

addresses and that release "would not constitute a clearly unwarranted invasion of personal

privacy"); 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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

37

Life Status

An individual who is deceased has greatly diminished personal privacy interests

in the context of the FOIA.

120

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 Court of Appeals for the District of Columbia 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

significant privacy interest.

121

The D.C. Circuit has found that an agency must take these

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).

119

See Citizens for Resp. & Ethics in Wash. v. DOJ, 822 F. Supp. 2d 12, 20-21 (D.D.C. 2011)

(concluding that "there is at least a minimal privacy interest" in identities of journalist and

filmmakers seeking to interview former lobbyist while he was in BOP custody, even though

they were acting "in their professional capacities").

120

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)); Vest v. Dep't of the Air Force, 793 F. Supp. 2d 103, 122

(D.D.C. 2011) ("An individual's death diminishes, but does not eliminate, his privacy

interest . . . .") (Exemption 7(C)); Grandison v. DOJ, 600 F. Supp. 2d 103, 114 (D.D.C. 2009)

("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 v. FBI, 763 F.

Supp. 2d 173, 176 (D.D.C. 2011) ("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 Shrecker v. DOJ, 349 F.3d

657, 661 (D.C. Cir. 2003))); Summers v. DOJ, 517 F. Supp. 2d 231, 241 (D.D.C. 2007) ("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)).

121

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

Department of Justice Guide the the Freedom of Information Act

Exemption 6

38

basic steps to determine life status before invoking a privacy interest under Exemptions

6 or 7(C).

122

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 birth date is more than 100 years ago.

123

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).

122

See Schrecker, 254 F.3d at 167 ("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."); Frankenberry v. FBI, No. 08-1565,

2012 U.S. Dist. LEXIS 39027, at *54 (M.D. Pa. Mar. 22, 2012) (adopting in part and

rejecting in part magistrate's recommendation) (determining that the FBI's assertion of

Exemption 7(C) to protect the identities of special agents, agency support personnel,

suspects, individuals merely mentioned in plaintiff's criminal investigatory records, local

law enforcement personnel, witnesses, and other federal employees is not appropriate

where it "provided no information as to whether [these individuals] are still alive")

(Exemption 7(C)); 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"). But see Vest, 793 F. Supp. 2d at 122 (finding that "[w]hile on first blush

it appears that the DOJ/FBI should have taken the life status of [the subject] into account,

'[t]he effect of an individual's death on [their] privacy interests need not be factored into an

Exemption 7(C) balancing test . . . where no public interest would be served by the

disclosure of that individual's name or other identifying information'") (Exemption 7(C)).

123

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 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); cf. 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)).

Department of Justice Guide the the Freedom of Information Act

Exemption 6

39

Public Figures

Although courts have found that an individual's status as a public figure might in

some circumstances factor into the privacy balance,

124

a public figure does not, by virtue

of his status, forfeit all rights of privacy.

125

Indeed, in NARA v. Favish, the deceased

124

See, e.g., Rosenfeld v. DOJ, No. 07-3240, 2012 WL 710186, at *4 (N.D. Cal. Mar. 5, 2012)

(finding that privacy interest "is low because . . . the subject is a public figure"); Citizens for

Responsibility & Ethics in Wash. v. DOJ, 846 F. Supp. 2d 63, 71 (observing that "despite the

fact that [a congressman's] privacy interest is 'somewhat diminished' by the office he holds,

he nevertheless 'd[id] not surrender all rights to personal privacy when [he] accept[ed] a

public appointment'") (Exemption 7(C)).

125

See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025

(9th Cir. 2008) (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 v. DOJ, 139 F.3d 944, 949 (D.C. Cir.

1998) (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); Citizens for Resp. & Ethics in Wash. v. DOJ, 840 F. Supp. 2d 226, 233

(D.D.C. 2012) (observing that "'individuals have a strong interest in not being associated

unwarrantedly with alleged criminal activity'" (quoting Stern v. FBI, 737 F.2d 84, 91 (D.C.

Cir. 1984)) and this "may be especially true for politicians who rely on the electorate to

return them to public office"); Taitz v. Astrue, 806 F. Supp. 2d 214, 219 (D.D.C. 2011)

(noting that "an individual's status as a public official does not, as plaintiff contends, 'make

exemption 6 irrelevant to him and his vital records'"); Nat'l Sec. News Serv. v. U.S. Dep't of

Navy, 584 F. Supp. 2d 94, 96 (D.D.C. 2008) (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

v. ICE, 545 F. Supp. 2d 113, 118 (D.D.C. 2008) (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)). But cf. Judicial Watch, Inc. v. DOJ,

Department of Justice Guide the the Freedom of Information Act

Exemption 6

40

former Deputy White House Counsel's status as both a public figure and a high-level

government official did not, in the Supreme Court's opinion, "detract" from the "weighty

privacy interests involved."

126

Likewise, a candidate for a political office, either federal

or nonfederal, does not forfeit all rights to privacy.

127

Privacy Assurances and Waivers

Privacy assurances given to those providing information to the government

generally serve to increase their privacy interests.

128

However, such assurances alone

are not dispositive.

129

Alternatively, individuals do not waive their privacy rights merely

by signing a document that states that information may be released pursuant to the

FOIA.

130

As one court has observed, such a statement is not a waiver of the right to

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 well-publicized pleas for clemency and [given] the speeches some have made

since their release") (Exemption 7(C)).

126

541 U.S. 157, 171 (2004).

127

See Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 894 & n.9 (D.C. Cir. 1995)

("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 for

Cmty. Improvement v. USDA, 256 F. Supp. 2d 946, 954 (S.D. Iowa 2002) (ruling that

nominee for position of Undersecretary of Agriculture for Rural Development does not

forfeit all privacy rights).

128

See, e.g., Kensington Res. & Recovery v. Dep't of Treasury, No. 10-3538, 2011 U.S. Dist.

LEXIS 71041, at *24 (N.D. Ill. June 30, 2011) (finding that the agency's regulation governing

individuals purchasing securities, in which it "pledged confidentiality and protection under

Exemption 6," both "raises the bondholders' expectation of privacy, and enhances the

privacy interests of nondisclosure").

129

See, e.g., Prudential Locations LLC v. HUD, No. 09-16995, 2013 WL 5539618, at *6 (9th

Cir. Oct. 9, 2013) (noting that "an assurance [of confidentiality] is neither a necessary, nor a

necessarily sufficient, condition for the existence of a cognizable personal privacy interest

under Exemption 6," but it is "a relevant factor"); Advoc. for Highway & Auto Safety v. Fed.

Highway Admin., No. 98-306, 2011 WL 4840463, at *6 (D.D.C. Oct. 13, 2011) (finding that

while "[a]ssurances of confidentiality are to be accorded some weight in assessing privacy

interest under FOIA Exemption 6 . . . such promises do not necessarily prohibit

disclosure").

130

See Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124-25 (7th Cir. 2003) (explaining that

a warning on Federal Trade Commission website that "information provided may be subject

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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."

131

Further, one person's waiver has been found not to apply to other individuals.

132

Interest in Disclosure

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 Court

of Appeals for the District of Columbia 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.

133

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."

134

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."

135

Faced with reverse FOIA challenges,

136

several courts have had to consider

whether to order agencies not to release records pertaining to individuals that agencies

to release under the FOIA" cannot be construed as a waiver by consumers) (emphasis

added); Hill v. USDA, 77 F. Supp. 2d 6, 8 (D.D.C. 1999) (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").

131

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).

132

Milton v. DOJ, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (finding that release of recording of

telephone conversation can be invasion of personal privacy; rejecting plaintiff's assertion

that waiver he signed "allowing [Bureau of Prisons] to monitor his phone calls . . . impliedly

extends to any party who accepted his calls").

133

164 F.3d 37, 48-49 (D.C. Cir. 1999).

134

Id. at 48.

135

Id.

136

See 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

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had determined should be disclosed.

137

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" pursuant to the requirements of Executive Order

12,600.

138

(See 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 the agency's intent to disclose personal information about them

thereof."); see also 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).

137

See, e.g., Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1184-89 (8th Cir.

2000) (finding agency decision to release petition with names unredacted was not in

accordance with law) (reverse FOIA suit); 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); Doe v. Veneman, 230 F.

Supp. 2d at 749-51 (holding agency decision to release identifying information pertaining to

farmers and ranchers was incorrect) (reverse FOIA suit), aff'd in pertinent part on other

grounds, 380 F.3d 807, 818 n.39 (5th Cir. 2004); AFL-CIO v. Fed. Election Comm'n, 177 F.

Supp. 2d 48, 61-63 (D.D.C. 2001) (finding agency's decision not to invoke Exemption 7(C)

to withhold identities of individuals in its investigative files to be "arbitrary, capricious and

contrary to law") (reverse FOIA suit), 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 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); 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); cf. Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1412-13 (D. Haw. 1995)

(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) (reverse FOIA suit).

138

3 C.F.R. 235 (1988), reprinted in 5 U.S.C. § 552 note (2006 & IV 2010), 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").

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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."

139

FOIA Public Interest

Once it is determined that a substantial privacy interest may be infringed by

disclosure, the third step of the analysis must be undertaken. This step requires the

identification and assessment of the FOIA public interest in disclosure.

140

In order to

constitute a FOIA public interest in disclosure, information must serve the "basic

purpose of the Freedom of Information Act[,] 'to open agency action to the light of

public scrutiny.'"

141

Information that informs the public about "an agency's performance

of its statutory duties falls squarely within that statutory purpose."

142

Furthermore, as

the Supreme Court held in NARA v. Favish, "the public interest sought to be advanced

139

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 v.

Hughes, 601 F. Supp. 1002, 1007 (D.D.C. 1985) (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).

140

See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption

7(C): Step-by-Step Decisionmaking").

141

Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976); see also Showing Animals

Respect & Kindness v. Dep't of the Interior, 730 F. Supp. 2d 180, 196 (D.D.C. 2010) ("[T]he

public interest in disclosure under FOIA is not limited to the agency processing the request

for records; the public has a right to know what their 'government' is up to, not just what a

particular agency is up to.").

142

DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989); 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. NARA

v. Favish, 541 U.S. 157, 172 (2004) (reiterating the Reporters Committee "public interest"

standard, and characterizing it as "a structural necessity in a real democracy" that "should

not be dismissed" – despite arguments by amici that Reporters Committee had been

"overruled" by Electronic FOIA amendments since 1996).

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[must be] a significant one, an interest more specific than having the information for its

own sake."

143

While requesters are typically not required to provide the reasons for requesting

information, when disclosure could result in an invasion of personal privacy, the

Supreme Court has ruled that a requester bears the burden of establishing that

disclosure would serve a FOIA public interest.

144

A requester's personal interest in

disclosure is irrelevant to the public interest analysis.

145

As the Supreme Court held in

143

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)).

144

See Favish, 541 U.S. at 172 (“Where the privacy concerns . . . are present, the exemption

requires the person requesting the information to establish a sufficient reason for the

disclosure.”) (Exemption 7(C)); Wadhwa v. VA, 446 Fed. App'x 516, 519 (3d Cir. 2011)

(finding withholding appropriate where requester failed to articulate proper FOIA public

interest in disclosure); 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 Graff v. FBI, 822 F. Supp. 2d 23, 33

(D.D.C. 2011) ("[B]ecause the public interest justification in each case depends on how the

requester plans to use the records or information, the agency must obtain that justification

from the requester in order to balance it against the third party's privacy interest."); 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."); 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.").

145

See Reporters Comm., 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

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DOJ v. Reporters Committee for Freedom of the Press, the requester's identity can have

"no bearing on the merits of his or her FOIA request."

146

In so declaring, the Court ruled

that agencies should treat all requesters alike in making FOIA disclosure decisions, and

should not consider a requester's "particular purpose" in making the request.

147

Rather,

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").

146

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. 487, 496-501 (1994); Associated

Press, 554 F.3d at 285 ("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 requester's identity, purpose in making the

request, and proposed use of the requested information have no bearing on this balancing

test.").

147

489 U.S. at 771-72 & n.20; 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

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the proper approach for determining whether there is a FOIA public interest in

disclosure is to evaluate "the nature of the requested document and its relationship to

'the basic purpose of the Freedom of Information Act.'"

148

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 Ctr. for the Study of Servs. v. HHS, 554 F.3d

1046, 1051 (D.C. Cir. 2009) ("The requesting party's intended use for the information is

irrelevant to our analysis."); Milton v. DOJ, 783 F. Supp. 2d 55, 59 (D.D.C. 2011) (finding

that "[i]n the absence of any evidence of government impropriety," plaintiff's claim that

certain telephone recordings are needed to support a claim of innocence "reflects a personal

rather than a public interest"); 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)); Davy v. CIA, 357 F. Supp. 2d 76, 88 (D.D.C.

2004) (holding that requester's "personal crusade to unearth . . . information" that was the

subject of a book that he wrote was found not to serve "in any way [] a cognizable public

interest").

148

Reporters Comm., 489 U.S. at 772 (quoting Rose, 425 U.S. at 372); 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); McGehee v. DOJ, 800 F. Supp. 2d 220, 234 (D.D.C. 2011) ("Although the

Jonestown Massacre may have elicited a great deal of public attention, the relevant question

is not whether the public would like to know the names of FBI agents and victims involved,

but whether knowing those names would shed light on the FBI's performance of its

statutory duties.") (Exemption 7(C)); 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))); 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)). But see Int'l Counsel Bureau v. DOD, 723 F. Supp. 2d 54, 66

(D.D.C. 2010) (finding substantial public interest in disclosure of photographs of

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Information serves a FOIA public interest if it sheds light on agency action.

149

Several courts 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 on an

agency's conduct to overcome the subject's privacy interest in his records.

150

At other

Guantanamo Bay detainees, as "[t]he press has taken a substantial interest in the

Guantanamo Bay detainees, and has reported extensively on them and their condition").

149

See Reporters Comm., 489 U.S. at 773; Rose, 425 U.S. at 372; see also, Nat'l Day Laborer

Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, 811 F. Supp. 2d 713,

748 (S.D.N.Y. 2011) ("[T]he public interest in disclosure outweighs the privacy interest as

regards the names of agency heads or high-level subordinates . . . [as] [t]here is a substantial

public interest in knowing whether the documents at issue reflect high-level agency policy,

helping to inform the public as to 'what their government is up to.'") (quoting Reporters

Comm., 489 U.S. at 773) (Exemptions 6 & 7(C)); Families for Freedom v. U.S. Customs &

Border Protect., 797 F. Supp. 2d 375, 399 (S.D.N.Y. 2011) (finding disclosure of agency

employee names would inform the public of "what their government is up to" by revealing

"whether the expectations and requirements articulated in the memoranda reflect high-level

agency policy") (Exemptions 6 and 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)).

150

See, e.g., World Publ'g Co. v. DOJ, 672 F. 3d 825, 831 (10th Cir. 2012) ("Based upon the

purpose of the FOIA, there is little to suggest that disclosure of booking photos would

inform citizens of a government agency's adequate performance of its function" or "would

significantly assist the public in detecting or deterring any underlying government

misconduct") (Exemption 7(C)); Karantsalis v. DOJ, 635 F.3d 497, 504 (11th Cir. 2011) (per

curiam) (holding "the general curiosity of the public in [the subject's] facial expression

during his booking photographs is not a cognizable interest that would 'contribute

significantly to public understanding of the operations or activities of the

government'" (quoting Reporters Comm., 489 U.S. at 775) (Exemption 7(C))); 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

v. FBI, 972 F.2d 286, 289 (9th Cir. 1992) (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

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times, though, courts have found that the public interest in a particular, singular

investigation is sufficient.

151

A request made for the purpose of challenging a criminal conviction has generally

been found not to further a FOIA public interest.

152

Likewise, a request made in order to

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 v. U.S. Dep't of the Air Force, 63 F. Supp. 2d

738, 745 (E.D. Va. 1999) ("[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 v. U.S. Dep't of the Air Force, 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"); Cotton v. Adams, 798 F. Supp. 22, 27 n.9 (D.D.C.

1992) (finding that, where FOIA request sought misconduct reports for two named

employees, the "generalized public interest in good management does not override the

privacy interests").

151

See, e.g., 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"); Citizens for

Responsibility & Ethics in Wash. v. DOJ, 846 F. Supp. 2d 63, 67 (D.D.C. 2012) ("Against the

backdrop of broader public concerns about the agency's handling of allegations of

corruption leveled against high-ranking public officials . . . the public has a clear interest in

documents concerning" DOJ's investigation of Congressman accused of providing earmarks

and contracts to donors.) (Exemption 7(C)); Citizens for Responsibility & Ethics in Wash. v.

DOJ, 840 F. Supp. 2d 226, 234 (D.D.C. 2012) (recognizing significant public interest in

information relating to DOJ's investigation of congressman accused of bribery because "the

American public has a right to know about the manner in which its representatives are

conducting themselves and whether the government agency responsible for investigating

and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its

job") (Exemptions 6 & 7(C)).

152

See, e.g., Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS 107883, at *22 (M.D. Tenn.

Sept. 22, 2011) (characterizing requester's asserted interest in collaterally attacking his state

conviction as an "illegitimate" public interest) (Exemption 7(C)); Lewis v. DOJ, 733 F. Supp.

2d 97, 111 (D.D.C. 2010) (finding plaintiff's personal interest in learning "the identities of

the DEA Special Agents" related to his criminal conviction "does not qualify as a public

interest favoring disclosure") (Exemptions 6 and 7(C)); Lasko v. DOJ, 684 F. Supp. 2d 120,

129 (D.D.C. 2010) ("Plaintiff's personal interest in the requested records for the purpose of

attacking his conviction or sentence is not relevant to this analysis") (Exemption 7(C));

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 that "the personal

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obtain or supplement discovery in a private lawsuit has generally been found not to

serve a FOIA public interest.

153

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.

154

The Court of Appeals for the District of Columbia Circuit has found that there

is a public interest, however, "in knowing whether the FBI is withholding information

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).

153

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 (D.C. Cir. 2005) (finding that plaintiff's "need to obtain the

information for a pending civil suit is irrelevant, as the public interest to be weighed has

nothing to do with [his] personal situation"); Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981)

(holding that the court "cannot allow the plaintiff's personal interest to enter into the

weighing or balancing process" where he is "hoping to obtain evidence sufficient to mount a

collateral attack on his kidnapping conviction"); 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). But see United Am. Fin., Inc. v. Potter, 667 F. Supp. 2d. 49, 60

(D.D.C. 2009) (ordering release of names of USPS employees and agents where individuals

identified could provide information in a related civil suit) (Exemption 7(C)).

154

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.").

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that could corroborate a death-row inmate's claim of innocence."

155

Specifically, the

D.C. Circuit ruled that there is a "substantial" public interest "where the FOIA requester

has [shown] that a reasonable person could believe that the FBI might be withholding

information that could corroborate a death-row inmates' claim of innocence."

156

Assigning a Weight to the FOIA Public Interest

If an asserted public interest is found to qualify under this standard, it then must

be accorded some measure of value so that it can be weighed against the threat to

privacy.

157

In evaluating the weightiness of a FOIA public interest in disclosure, it is

important to note that if alternative, less intrusive means are available to obtain

information that would serve a FOIA public interest, there is less need to require

disclosure of information that would cause an invasion of someone's privacy.

Accordingly, the Court of Appeals for the District of Columbia 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."

158

Significantly, although a FOIA public interest typically

155

Roth v. DOJ, 642 F.3d 1161, 1180 (D.C. Cir. 2011) (finding FOIA public interest militating

in favor of fuller disclosure where death-row inmate has surmounted fairly substantial

hurdle of showing that a reasonable person could believe that the agency might be

withholding information that could corroborate his claim that four other men actually

committed the quadruple homicide for which he was convicted) (Exemption 7(C)).

156

Id. at 1176, 1184.

157

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).

158

DOD v. FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992); see Favish, 541 U.S. at 175

(recognizing 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"); Forest Guardians v. FEMA, 410 F.3d

1214, 1219 & n.3 (10th Cir. 2005) (finding 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"); Forest Serv. Employees for Envtl.

Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) ("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 v.

DOJ, 331 F.3d 799, 804 (11th Cir. 2003) (finding that there is substantial public information

available about AUSA's misconduct and that therefore any "public interest in knowing how

DOJ responded to [AUSA's] misconduct can be satisfied by this other public information");

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weighs 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.

159

Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of the Air Force, 26 F.3d 1479,

1485 (9th Cir. 1994) (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 Work Pres. Fund, Inc. v. HUD, 936 F.2d 1300, 1303

(D.C. Cir. 1991) (contact at workplace is alternative to disclosing home addresses of

employees); Multnomah County Med. Soc'y v. Scott, 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); ACLU v. DHS, 738 F. Supp 2d 93, 117

(D.D.C. 2010) (noting that "where the privacy interests and public interests in disclosure

can be simultaneously protected by withholding the actual handwritten versions of the notes

by producing typed renditions, an appropriate balance is reached") (Exemption 7(C)); Chin

v. U.S. Dep't of the Air Force, 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, Ecker & Murphy, LLC v. Dep't of

Interior, 511 F. Supp. 2d 215, 219 (D. Conn. 2007) (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, 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 v. Adams, 798 F. Supp. 22, 27 n.9 (D.D.C. 1992) (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).

159

See, e.g., Perlman v. DOJ, 312 F.3d 100, 106 (2d Cir. 2002) ("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)),

cert. granted, vacated & remanded, 541 U.S. 970 (2004), reinstated after remand, 380 F.3d

110 (2d Cir. 2004) (per curiam); 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 v.

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Nexus Between the Requested

Information and the Public Interest

The Supreme Court has held that there must be a "nexus between the requested

information and the asserted public interest that would be advanced by disclosure."

160

DOJ, 600 F. Supp. 2d 78, 97 (D.D.C. 2009) (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 v. BOP, No. 01-40070,

slip op. at 10 (D. Mass. Dec. 20, 2001) (deciding that there would be "chilling" effect neif

conversations between inmates and their attorneys were disclosed to public anytime they

spoke on monitored prison telephones). But see Advocates for Highway & Auto Safety v.

Fed. Highway Admin., 818 F. Supp. 2d 122, 131 (D.D.C. 2011) ("The belief that disclosure

might impair the government's ability to acquire similar information in the future carries no

weight under FOIA Exemption 6, which focuses on individual privacy interests.").

160

NARA v. Favish, 541 U.S. 157, 172-73 (2004); 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 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

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That is to say, release of the actual personal information at issue must further the

public's understanding of the activity that is the basis for the asserted FOIA public

interest in disclosure.

161

It is not enough that the information would permit speculative

inferences about the conduct of an agency or a government official,

162

or that it might

aid the requester in lobbying efforts that would result in passage of laws and thus

benefit the public in that respect.

163

As stated by the Court of Appeals for the Second

Circuit in Hopkins v. HUD, "[t]he simple invocation of a legitimate public interest . . .

cannot itself justify the release of personal information."

164

The Second Circuit held that

instead, "a court must first ascertain whether that interest would be served by

disclosure."

165

For example, in NARA v. Favish the Supreme Court recognized that

to collect on those defaulted loans. Nor would [they] reveal anything about the potential

misuse of public funds.").

161

See Favish, 541 U.S. at 172 (declaring that requesters "must show the information is likely

to advance [a specific, significant public] interest"); 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 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").

162

See DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 766 n.18 (1989);

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).

163

See Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)

[hereinafter NARFE].

164

929 F.2d 81, 88 (2nd Cir. 1991) (citing Halloran v. VA, 874 F.2d 315, 323 (5th Cir. 1989)

(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")).

165

Id.; 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"); World Publ'g

Co. v. DOJ, 672 F. 3d 825, 831 (10th Cir. 2012) ("Based upon the purpose of the FOIA, there

is little to suggest that disclosure of booking photos would inform citizens of a government

agency's adequate performance of its function" or "would significantly assist the public in

detecting or deterring any underlying government misconduct.") (Exemption 7(C));

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surviving family members had a privacy interest in their close relative's death scene

images, and also found there could be a FOIA public interest "in uncovering deficiencies

or misfeasance in the Government's investigation" of an apparent suicide that occurred

under mysterious circumstances.

166

However, the Court found that the asserted FOIA

public interest would not be served by release of the death scene images because the

requester failed to "produce evidence that would warrant a belief by a reasonable person

that the alleged Government impropriety might have occurred."

167

Without such a

showing, the requester could not establish the requisite nexus, that disclosure of the

images at issue would shed light on whether the government's investigation was

deficient.

168

Similarly, the Supreme Court in DOJ v. Reporters Committee for Freedom of the

Press held that the subject of a criminal history or "rap sheet" possessed a substantial

privacy interest in its contents, and that disclosure of this information would not

contribute to the public's understanding of the operations or activities of the

government.

169

Specifically, the requesters in Reporters Committee argued that

information contained in a defense contractor's rap sheet, if it existed, needed to be

Karantsalis v. DOJ, 635 F.3d 497, 504 (11th Cir. 2011) (finding disclosure of booking

photographs might satisfy "voyeuristic curiosities," but "would not serve the public

interest" as "the facial expression of a prisoner in a booking photograph is [not] a sufficient

proxy to evaluate whether a prisoner is receiving preferential treatment") (Exemption 7(C));

Consumers' Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d 1046, 1056 (D.C. Cir.

2009) (concluding after careful scrutinizing of various assertions of public interest asserted

by plaintiff, that "the requested data does not serve any FOIA-related public interest in

disclosure"); Schoenman v. FBI, 763 F. Supp. 2d 173, 199 (D.D.C. 2011) (holding disclosure

of identities of individuals identified in law enforcement records "shed[s] relatively little

light on the performance and activities of the FBI" where "the substantive contents of the

records have otherwise been disclosed") (Exemption 7(C)); Vento v. IRS, No. 08-159, 2010

WL 1375279, at *8 (D.V.I. Mar. 31, 2010) ("While Plaintiffs argue they seek this information

merely to know what the government is 'up to,' such an argument is plainly disingenuous

given the ongoing enforcement proceedings against Plaintiffs.") (Exemption 7(C)); 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); Associated Press v. DOD,

462 F. Supp. 2d 573, 577-78 (S.D.N.Y. 2006) (finding a strong public interest in information

pertaining to the height and weight of Guantanamo Bay detainees, as it would allow the

public 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").

166

541 U.S. at 173.

167

Id. at 174.

168

Id.

169

489 U.S. at 774.

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disclosed to the public because (1) the contractor "allegedly had improper dealings with

a corrupt Congressman," and (2) the contractor was "an officer of a corporation with

defense contracts."

170

The Supreme Court rejected this two-fold public interest claim,

commenting that "the rap sheet would [conceivably] provide details to include in a news

story, but, in itself . . . [was] not the kind of public interest for which Congress enacted

the FOIA."

171

It premised this conclusion on the fact that the defense contractor's rap

sheet would reveal nothing directly about the behavior of the Congressman with whom

the contractor allegedly had an improper relationship, nor would it reveal anything

about the conduct of the DOD in awarding contracts to the contractor's company.

172

170

Id.

171

Id.

172

Id.; see, e.g., Long v. OPM, 692 F.3d 185, 194 (2d Cir. 2012) (noting that "an employee's

name may be useful for investigating the behavior of individual employees; but courts have

been skeptical of recognizing a public interest in this 'derivative' use of information, which is

indirect and speculative"); Associated Press, 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, 929 F.2d at 88)); NARFE, 879 F.2d at 879 (finding that names

and home addresses of federal annuitants reveal nothing directly about workings of

government); Halloran v. VA, 874 F.2d 315, 323 (5th Cir. 1989) ("[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 . . . .") (Exemption 7(C)); 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 v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984) (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."); Seized Prop.

Recovery v. U.S. Customs & Border Prot., 502 F. Supp. 2d 50, 59 (D.D.C. 2007) (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).

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Furthermore, in United States Department of State v. Ray,

173

the Supreme Court

recognized that although there was a legitimate public interest in whether the State

Department was adequately monitoring the Haitian Government'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.

174

The court held that "[t]he addition of the redacted identifying information

would not shed any additional light on the Government's conduct of its obligation."

175

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

173

502 U.S. 164 (1991).

174

Id. at 174.

175

Id. at 178; see also Prudential Locations LLC v. HUD, No. 09-16995, 2013 WL 5539618,

at *7 (9th Cir. Oct. 9, 2013) ("Revealing the identity of a private individual [who wrote an

email alleging illegal conduct by a business] does not further the public interest unless it

casts light on the conduct of the government."); Associated Press, 554 F.3d 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"); Citizens for Responsibility & Ethics in Wash. v. DOJ, 822

F. Supp. 2d 12, 22 (D.D.C. 2011) (holding any public interest "in knowing the extent to

which the BOP and Criminal Division 'sought to prevent Mr. Abramoff from speaking with

members of the media'" had "been satisfied by the documents and portions of the

documents already released") (quoting Plaintiff's Cross-Motion for Summary Judgment at

15); Am. Small Bus. League v. Dep't of the Interior, No. 11-01880, 2011 U.S. Dist. LEXIS

114752, at *11 (N.D. Cal. Oct. 5, 2011) (finding public interest adequately served by release of

redacted OIG report); 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 see Rosenfeld v. DOJ, 57 F.3d 803, 811-

12 (9th Cir. 1995) (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)).

Department of Justice Guide the the Freedom of Information Act

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57

relevant information . . . Mere speculation about hypothetical public benefits cannot

outweigh a demonstrably significant invasion of privacy."

176

Courts have found no FOIA public interest for records concerning state or foreign

governments

177

or individuals.

178

As the Supreme Court has declared, such information

176

Ray, 502 U.S. at 178-79; see also Prison Legal News v. EOUSA, 628 F.3d 1243, 1250 (10th

Cir. 2011) (holding public interest in disclosure of video and audio files depicting death

scene outweighed by survivors' privacy interests, because "[w]hile the BOP's protection of

prisoners and the government's discretionary use of taxpayer money may be matters of

public interest, there is nothing to suggest the records would add anything new to the public

understanding") (Exemption 7(C)); 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[,]" 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).

177

See Landano v. DOJ, 956 F.2d 422, 430 (3d Cir. 1992) (stating that there is "no FOIA-

recognized 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)).

178

Reporters Comm., 489 U.S. at 773; see Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355,

355-56 (1997) (finding that there is no FOIA public interest in "knowing with whom the

government has chosen to communicate"); DOD v. FLRA, 510 U.S. 487, 497 (1994)

("Disclosure of the addresses might allow the unions to communicate more effectively with

employees, but it would not appreciably further 'the citizens' right to be informed about

what their government is up to." (quoting Reporters' Comm., 489 U.S. at 773)); 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

Department of Justice Guide the the Freedom of Information Act

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58

"falls outside the ambit of the public interest that the FOIA was enacted to serve," as it

does not directly reveal the operations or activities of the federal government.

179

Derivative Use of the Information

The Supreme Court expressly declined in United States Department of State v. 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.

180

Subsequently, however,

the Court of Appeals for the District of Columbia Circuit and several other courts have

addressed the "derivative use" issue and ordered the release of personal information

despite the fact that the public benefit to be derived from release depended upon the

requesters' use of the information to further investigate how the government performs

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

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").

179

Reporters Comm., 489 U.S. at 775.

180

502 U.S. 164, 178-79 (1991); Associated Press v. DOD, 554 F.3d 274, 290 (2d Cir. 2009)

(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").

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its duties.

181

In ACLU v. DOJ, the D.C. Circuit found that release of certain court docket

information could be used to show the "kinds of crimes the government uses cell phone

tracking data to investigate" and "how often prosecutions against people who have been

tracked are successful."

182

The court found that derivative information from

suppression hearings in these cases could show "the efficacy of the technique," the

"standards the government uses to justify warrantless tracking," and "the duration of

tracking and the quality of tracking data," thus informing "the public discussion

concerning the intrusiveness of this investigative tool."

183

The court reasoned that this

was a relevant consideration, and if a court "consider[s] derivative use for evaluating

privacy concerns, [then it] must do the same for the public interest."

184

Other 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;

185

(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

181

See, e.g., ACLU v. DOJ, 655 F.3d 1, 13 (D.C. Cir. 2011); Elec. Frontier Found. v. Office of

the Dir. of Nat'l Intelligence, 639 F.3d 876, 887-88 (9th Cir. 2010); W. Watersheds Proj. &

Wildearth Guardians v. BLM, et al., No. 09-482, 2010 U.S. Dist. LEXIS 95379, at *40 (D. Id.

Sept. 13, 2010); Or. Natural Desert Ass'n v. U.S. Dep't of the Interior, 24 F. Supp. 2d 1088,

1093 (D. Or. 1998) (Exemption 7(C)); Maples v. USDA, No. F 97-5663, slip op. at 14 (E.D.

Cal. Jan. 13, 1998); Cardona v. INS, No. 93-3912, 1995 WL 68747, at *3 (N.D. Ill. Feb. 15,

1995); Rosenfeld v. DOJ, 57 F.3d 803, 811-12 (9th Cir. 1995); Weiner v. FBI, No. 83-1720,

slip op. at 5-7 (C.D. Cal. Dec. 6, 1995) (Exemptions 6 and 7(C)); Thott v. U.S. Dep't of the

Interior, No. 93-0177-B, slip op. at 5-6 (D. Me. Apr. 14, 1994); Ray v. DOJ, 852 F. Supp.

1558, 1564-65 (S.D. Fla. 1994); Urbigkit v. U.S. Dep't of the Interior, No. 93-CV-0232-J, slip

op. at 13 (D. Wyo. May 31, 1994); Sun-Sentinel v. DHS, 431 F. Supp. 2d 1258, 1269-73 (S.D.

Fla. 2006), aff'd sub nom. News-Press v. DHS, 489 F.3d 1173 (11th Cir. 2007); Lardner v.

DOJ, No. 03-0180, 2005 WL 758267, at *17 (D.D.C. Mar. 31, 2005); Baltimore Sun v. U.S.

Marshals Serv., 131 F. Supp. 2d 725, 729-30 (D. Md. 2001) (Exemption 7(C)), appeal

dismissed voluntarily, No. 01-1537 (4th Cir. June 25, 2001).

182

655 F.3d at 13-14 (considering derivative use of docket information, such as case name,

case number and court) (Exemption 7(C)).

183

Id. at 13-14.

184

Id. at 16 ("'[D]erivative use on the public-benefits side, and derivative use on the

personal-privacy side must surely go together.'" (citing Ray, 502 U.S. 181 (Scalia, J.,

concurring in part))).

185

Thott, No. 93-0177-B, slip op. at 5-6 (D. Me. Apr. 14, 1994).

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60

fulfilling its duties not to turn away Haitians who may have valid claims

for political asylum;"

186

(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;

187

(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 investigation was politically motivated;

188

(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;

189

(6) 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;

190

(7) the names of unsuccessful pardon applicants, which would assist the

public in analyzing the "circumstances in which the executive chooses to

grant or deny a pardon and the factors that bear on that decision;"

191

(8) the "names and addresses [of purchasers of seized property, which] 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;"

192

186

Ray, 852 F. Supp. at 1564-65 (distinguishing Supreme Court's decision in 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").

187

Urbigkit, No. 93-CV-0232-J, slip op. at 13 (D. Wyo. May 31, 1994).

188

Weiner, No. 83-1720, slip op. at 5-7 (C.D. Cal. Dec. 6, 1995).

189

Cardona v. INS, No. 93-3912, 1995 WL 68747, at *3 (N.D. Ill. Feb. 15, 1995).

190

Sun-Sentinel, 431 F. Supp. 2d at 1269-73.

191

Lardner, 2005 WL 758267, at *17 (D.D.C. Mar. 31, 2005).

192

Baltimore Sun, 131 F. Supp. 2d at 729-30.

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(9) the "names and addresses of individuals as well as the addresses of the

closely held entities and family owned businesses" which would "allow

the public to better understand the scope of the [Department of the

Interior, Bureau of Land Management's] grazing program;"

193

(10) the identities of individuals investigated by the FBI, which "would make

it possible to compare the FBI's investigation [subjects] to a roster of the

[Free Speech Movement]'s leadership" to determine "to what extent the

FBI investigated individuals for participating in political protests, not

federal criminal activity" (Exemption 7(C));

194

(11) the identities of "well-connected corporate lobbyists," which would

enable the public to "determine how the Executive Branch used advice

from particular individuals and corporations in reaching its own policy

decisions."

195

The Court of Appeals for the Second Circuit expressed skepticism as to whether a

"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."

196

The

Court of Appeals for the Ninth Circuit has at times expressed similar concerns.

197

193

W. Watersheds Proj. & Wildearth Guardians, 2010 U.S. Dist. LEXIS 95379, at *40; see

also Or. Natural Desert Ass'n, 24 F. Supp. 2d at 1093 (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, 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).

194

Rosenfeld, 57 F.3d at 812.

195

Elec. Frontier Found., 639 F.3d at 887-88; cf. Prudential Locations LLC v. HUD, No. 09-

16995, 2013 WL 5539618, at *8 (9th Cir. Oct. 9, 2013) (distinguishing the lobbyists in Elec.

Frontier Found. from email authors who "did not seek to influence legislation or to change

any substantive policy," but rather "alleged violations of an existing federal statute in

communications to the federal agency charged with enforcing that statute").

196

554 F.3d 274, 290 (2d Cir. 2009); see Hopkins v. HUD, 929 F.2d 81, 88 (2nd Cir. 1991)

("[W]e find 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.")

197

Lahr v. NTSB, 569 F.3d 964, 979 (9th Cir. 2009) ("The only way that the identities of the

eyewitnesses and FBI agents mentioned in the documents already released would have

public value is if these individuals were contacted directly by the plaintiff or by the media

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62

Public Servant Accountability

Public oversight of government operations is the essence of public interest under

the FOIA, one of the purposes of which is to "check against corruption and to hold the

governors accountable to the governed."

198

Accordingly, disclosure of information that

informs the public of violations of the public trust has been found to serve a strong

public interest and is accorded great weight in the balancing process.

199

The Court of

Appeals for the District of Columbia Circuit's decision in Stern v. FBI

200

provides

guidance for evaluating whether the public's interest in public servant accountability, a

distinct category of FOIA public interest, supports disclosure of the identities of federal

employees. Although the Stern decision was decided prior to the Supreme Court’s

decision in DOJ v. Reporters Committee for Freedom of the Press,

201

the D.C. Circuit

subsequently reaffirmed the legitimacy of a FOIA public interest rooted in public

servant accountability in Dunkelberger v. DOJ,

202

in which it held that even post-

. . . . [S]uch use is insufficient to override the witnesses' and agents' privacy interests, as the

disclosure would bring about additional useful information only if direct contacts,

furthering the privacy intrusion, are made." (Exemption 7(C))); Forest Serv. Employees for

Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1027-28 (9th Cir. 2008) (finding that "[w]e

have previously expressed skepticism at the notion that such derivative use of information

can justify disclosure under Exemption 6," and concluding 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). But see Elec. Frontier Found., 639 F.3d at

887-88 (recognizing derivative use).

198

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) (Exemptions 6 and 7(C)), cert. granted, vacated & remanded

on other grounds, 130 S. Ct. 777 (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).

199

See Cochran v. U.S., 770 F.2d 949, 956 (11th Cir. 1985) ("[T]he balance struck under

FOIA exemption six overwhelming favors the disclosure of information relating to a

violation of the public trust by a government official . . . ."); Engberg v. DOJ, No. 10-01775,

2011 WL 4502079, at *7 (M.D. Fla. Aug. 12, 2011) ("When a government official's actions

constitute a violation of the public trust, courts favor disclosure.").

200

737 F.2d 84 (D.C. Cir. 1984).

201

489 U.S. 749 (1989).

202

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))).

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Reporters Committee, the D.C. Circuit's Stern decision 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.

203

In Stern, the court was faced with the question of whether the FBI improperly

withheld the identities of three FBI employees identified in letters of censure, which

were issued to the employees as the result of an investigation into whether they had

engaged in a cover-up of illegal FBI surveillance activities.

204

The court found the

employees' level of seniority within the FBI and their respective levels of culpability to

be particularly relevant in evaluating the extent of the public interest in disclosure.

205

After recognizing that all three employees had privacy interests in information relating

to their employment evaluations, and a strong interest in "not being associated

unwarrantedly with alleged criminal activity," the court found that the agency properly

withheld the identities of two lower-level employees who "were found to have

contributed only inadvertently to the wrongdoing under investigation."

206

However, with regard to the senior level employee, the court reached the opposite

conclusion and held:

[I]t would not be an "unwarranted invasion of personal privacy" to reveal

his name, despite the potential association with notorious and serious

allegations of criminal wrongdoing. He was a high-level employee who

was found to have participated deliberately and knowingly in the

withholding of damaging information in an important inquiry-an act that

he should have known would lead to a misrepresentation by the FBI. The

public has a great interest in being enlightened about that type of

203

Id. 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 v. DOJ, 997 F.2d 1489, 1494 (D.C. Cir. 1993) (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 286,

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).

204

737 F.2d at 86.

205

Id. at 94.

206

Id. at 92, 93.

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malfeasance by this senior FBI official-an action called "intolerable" by the

FBI-an interest that is not outweighed by his own interest in personal

privacy.

207

Applying this analysis, courts have followed a general rule that demonstrated

wrongdoing of a serious and intentional nature by high-level government officials is of

sufficient public interest to outweigh almost any privacy interest of that official.

208

By

contrast, both serious and less serious misconduct by lower-level agency employees

generally have not been considered of sufficient public interest to outweigh the privacy

interest of the employee.

209

As such, courts customarily have extended protection to the

207

Id. at 94.

208

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) (Exemptions 6 and

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, Ecker & Murphy, LLC v. Dep't of Interior, 511 F. Supp. 2d 215, 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).

209

See, e.g., Dep't of the Air Force v. Rose, 425 U.S. 352, 381 (1976) (protecting names of

cadets found to have violated Academy honor code); Forest Serv. Employees for Envtl.

Ethics, 524 F.3d at 1025 ("[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 v. Integrity Comm., 501 F.3d 1215, 1234 (10th Cir.

2007) (noting "[t]he public interest in learning of a government employee's misconduct

increases as one moves up an agency's hierarchical ladder," and concluding that the 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

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identities of mid- and low-level federal employees accused of misconduct, as well as to

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, 997 F.2d at 1493 ("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)); Chamberlain v. Kurtz, 589 F.2d 827, 842

(5th Cir. 1979) (protecting names of disciplined IRS agents); Sensor Sys. Support, Inc. v.

FAA, No. 10-262, 2012 WL 424376, at *9 (D.N.H. Feb. 9, 2012) (finding that disclosure of

the identity of "a low-level FAA employee" investigated for possible misconduct would "shed

little light on the operation of the agency"); Gerstein v. CIA, No. 06-4643, 2011 WL 89337,

at *3 (N.D. Cal. Jan. 11, 2011) (holding identity of AUSA properly withheld "[g]iven the level

of the employee in question, [and] the lack of intentional misconduct") (Exemption 7(C));

Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401, at 31-32

(D. Colo. Dec. 7, 2010) (holding employee names properly withheld where "the misconduct

was not directly related to how the employees performed their official responsibilities, but

rather, whether and when they performed them" and the employees' conduct did not reflect

on the "'attitude' of the SEC toward fulfillment of its duties and responsibilities"); Coleman

v. Lappin, 680 F. Supp. 2d 192, 200 (D.D.C. 2010) ("There exists a public interest in

disclosure of information about [an] investigation [of a BOP staff member accused of

serious misconduct], but that interest is minimal."); 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 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,

798 F. Supp. at 26-27 (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).

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the details and results of any internal investigations into such allegations of

impropriety.

210

Furthermore, 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 knowledge" that certain employees were disciplined.

211

210

See, e.g., McCutchen v. HHS, 30 F.3d 183, 187-89 (D.C. Cir. 1994) (protecting identities

of both federally and privately employed scientists investigated for possible scientific

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) (protecting names of public

employees in connection with stigmatizing event), 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 v.

U.S. Dep't of the Air Force, 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). 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).

211

Beck, 997 F.2d at 1493-94; see Chin, 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).

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Evidentiary Showing

The Court of Appeals for the District of Columbia Circuit has opined that

disclosure of information may be "necessary in order to confirm or refute compelling

evidence that the agency is engaged in illegal activity."

212

At the same time, however, the

Supreme Court has held that mere allegations of wrongdoing do not constitute a FOIA

public interest and cannot outweigh an individual's privacy interest in avoiding

unwarranted association with such allegations.

213

In NARA v. Favish, the Supreme

212

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991) (protecting individuals'

identities in absence of such a showing); see also 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 activity and shows that the information

sought is necessary in order to confirm or refute that evidence") (Exemption 7(C)); cf.

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).

213

NARA v. Favish, 541 U.S. 157, 175 (2004); 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 v. HHS, 30 F.3d 183, 187-

89 (D.C. Cir. 1994) (protecting identities of scientists found not to have engaged in alleged

scientific misconduct) (Exemption 7(C)); Hunt v. FBI, 972 F.2d 286, 288-90 (9th Cir. 1992)

(protecting investigation of named FBI agent cleared of charges of misconduct) (Exemption

7(C)); Dunkelberger v. DOJ, 906 F.2d 779, 782 (D.C. Cir. 1990) (same) (Exemption 7(C));

Carter v. Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987) (protecting identities of

attorneys subject to disciplinary proceedings, which were later dismissed); Bonilla v. DOJ,

798 F. Supp. 2d 1325, 1332 (S.D. Fla. July 25, 2011) (holding speculative allegations of

impropriety, found meritless in requester's criminal action, fail to satisfy Favish standard);

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)); 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

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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."

214

The court went on to recognize that "allegations of misconduct are

'easy to allege and hard to disprove'"

215

and that courts therefore must require a

"meaningful evidentiary showing" by the FOIA requester.

216

Specifically:

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 v. Schaul, No. 03-03233, slip op. at

10-11 (W.D. Wash. Mar. 8, 2004) ("If these files 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 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)).

214

Favish, 541 U.S at 174; see also 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 defense against requests for production of private information.").

215

Favish, 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 conduct, and noting that privacy interests would be worthless if only bare

allegations could overcome these interests).

216

Favish, 541 U.S. at 175; 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)); Martin v. DOJ, 488

F.3d 446, 458 (D.C. Cir. 2007) (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.'").

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[T]he 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.

217

Courts applying this heightened standard to allegations of government misconduct have

generally found that plaintiffs have not provided the requisite evidence required by

Favish,

218

while in some cases the standard has been found to be satisfied.

219

217

Favish, 541 U.S. at 174; cf., Citizens for Responsibility & Ethics in Wash. v. DOJ, 846 F.

Supp. 2d 63, 74 (holding that as "agency misconduct" was not the asserted basis for

disclosure, "[plaintiff] need not produce the compelling evidence of illegal activity that

would be required if it had done so") (Exemption 7(C)); Vento v. IRS, 714 F. Supp. 2d 137,

150 (D.D.C. 2010) (concluding that "the improper withholding of requested documents is

not the type of government 'impropriety' to which the interest of privacy yields")

(Exemption 7(C)); 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.").

218

See Hulstein v. DEA, 671 F. 3d 690, 696 (8th Cir. 2012) (finding plaintiff's "casting

general aspersions on the fact that the DEA was investigating him" is not a FOIA public

interest in disclosure) (Exemption 7(C)); Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011)

(finding that plaintiff "has failed to meet the demanding Favish standard," where "[t]he only

support [he] offers for his allegation of government misconduct is his own affidavit, which

recounts a litany of alleged suspicious circumstances but lacks any substantiation")

(Exemption 7(C)); 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)); Lane v. Dep't 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)); 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 v. DOJ, 475 F.3d 381, 387 (D.C. Cir.

2007))); Carpenter v. DOJ, 470 F.3d 434, 442 (1st Cir. 2006) (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 v. Peace Corps, 428 F.3d 271, 278 & n.1 (D.C. Cir. 2005)

(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); 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 v. FBI, 78 F.3d 1405, 1410

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Public Interest in Agency Compliance with Federal Statutes

The Supreme Court has held that requesters seeking to vindicate the policies of

another federal statute have not demonstrated a FOIA public interest in disclosure.

220

Specifically, in DOD v. FLRA, two unions requested the names and home addresses of

certain DOD employees who worked in bargaining units represented by the unions.

221

DOD responded by providing the employee names and work stations, but did not

provide the home addresses on the grounds such disclosure would violate the employees

(9th Cir. 1996) (rejecting public interest argument absent evidence suggesting wrongdoing

by FBI); Halloran v. VA, 874 F.2d 315, 323 (5th Cir. 1989) (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); Lewis v. DOJ, No. 09-0746, 2011 WL

5222896, at *14 (D.D.C. Nov. 2, 2011) (finding "unsupported assertions and speculation" do

not constitute "'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)

(Exemption 7(C)); Schoenman v. FBI, 763 F. Supp. 2d 173, 200 (D.D.C. 2011) (noting

plaintiff "failed to present anything remotely approaching [the] quantum of evidence"

required under Favish to support allegations of wrongdoing on the part of the FBI)

(Exemption 7(C)); Aguirre, 551 F. Supp. 2d at 56 ("A 'bare suspicion' of agency misconduct

is insufficient." (quoting Favish, 541 U.S. at 174)); 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 disclosure"), aff'd,

692 F.3d 185 (2nd Cir. 2012); 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).

219

CASA de Maryland, Inc. v. DHS, 409 Fed. App'x 697, 700-01 (4th Cir. 2011) (finding

Favish requirement satisfied where requester did provide evidence indicating agency

impropriety) (Exemptions 6 and 7(C)); Lardner v. DOJ, 398 Fed. App'x 609, 611 (D.C. Cir.

2010) (per curiam) (finding privacy interests outweighed by the public interest in disclosing

the names of unsuccessful clemency applicants "in view of the Inspector General's Report

on whether impermissible considerations played a role in pardon determinations").

220

DOD v. FLRA, 510 U.S. 487 (1994).

221

Id.

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privacy.

222

The asserted public interest in disclosure, that the home addresses would

facilitate communication between the unions and the bargaining unit employees, which

would further the public interest in collective bargaining under the Federal Service

Labor-Management Relations statute, was characterized by the Supreme Court as being

"negligible, at best."

223

Noting that only information that contributes significantly to

public understanding of government operations or activities constitutes a FOIA public

interest, the Court held that "the fact that respondents are seeking to vindicate the

policies behind the Labor Statute is irrelevant to the FOIA analysis."

224

Similarly, the Courts of Appeals for the District of Columbia, Second, Third, and

Tenth Circuits have found that the public interest in compliance with the Davis-Bacon

Act

225

is not a public interest whose significance outweighs competing privacy interests

of third parties.

226

For example, in Painting and Drywall Work Preservation Fund, Inc.

v. HUD, a nonprofit cooperative of painting and drywall contractors and labor unions

requested certified payroll records relating to three HUD-assisted construction projects

in an effort to determine whether these projects were in compliance with laws effecting

public work projects.

227

Finding that those identified in the certified payroll records had

personal privacy interests in their information, the court turned to the public interest in

disclosure and found "information that might reveal the failure of contractors to comply

with relevant laws does not in itself cast light on what HUD is up to," and was not a

"public interest in . . . disclosure that is relevant to this analysis."

228

As to the

requester's argument that disclosure could be used to monitor how well the government

was enforcing labor statutes, the court acknowledged the possibility that the disclosure

222

Id.

223

Id. at 497; see also Wade v. IRS, 771 F. Supp. 2d 20, 25 (D.D.C. 2011) ("[J]ust as

'[d]isclosure of the addresses might [have allowed] the unions to communicate more

effectively with employees,' in Federal Labor Relations Authority, the disclosure of the home

phone numbers of Enrolled Agents here might, as Plaintiffs argue, help the public at large

access greater contact information for Enrolled Agents who complete public tax returns, 'but

it would not appreciably further the citizens right to be informed about what their

government is up to.'") (quoting DOD v. FLRA, 512 U.S. at 497).

224

510 U.S. at 499.

225

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).

226

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, 936 F.2d at 1303; Hopkins v. HUD,

929 F.2d 81, 88 (2nd Cir. 1991).

227

936 F.2d at 1301.

228

Id. at 1303.

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of names could serve such a public interest in certain cases, but found that in this case,

the requester had alternative means of accessing this information by engaging in "face-

to-face conversation[s]" with workers at worksites.

229

Although the Second Circuit found a legitimate public interest in monitoring

HUD's enforcement of prevailing wage laws generally, it 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.

230

Faced

with the same public interest question, the Ninth Circuit took a different approach but

reached the same result.

231

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.

232

Courts of Appeals have reached similar conclusions outside the context of federal

labor laws. For example, the Ninth Circuit in Minnis v. USDA recognized a valid public

interest in 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.

233

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."

234

As such, the majority of courts to have considered the question of whether

disclosure of personal information serves a FOIA public interest in agency compliance

with federal statutes have generally found that where disclosure of personal information

reveals nothing "directly about the character of a government agency or official" but

229

Id.

230

Hopkins, 929 F.2d at 88.

231

Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of the Air Force, 26 F.3d 1479,

1486 (9th Cir. 1994).

232

Id. at 1485; see also Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98.

233

737 F.2d 784, 787 (9th Cir. 1984).

234

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").

Department of Justice Guide the the Freedom of Information Act

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rather, bears only an "attenuated . . . relationship to governmental activity," such an

"attenuated public interest in disclosure does not outweigh individuals' privacy interests

in their personal information.

235

In conclusion, the identification and assessment of a FOIA public interest is only

part of the analysis for determining whether personal information should be protected

under the FOIA. If an agency determines that no legitimate FOIA public interest exists,

and there is a more than de minimis privacy interest in nondisclosure, then the

information should be protected.

236

Alternatively, if a FOIA public interest is found to

exist, the next step of the analysis requires the public interest in disclosure to be

balanced against the privacy interest in nondisclosure.

237

235

Hopkins, 929 F.2d at 88; see Sheet Metal Workers Int'l Ass'n, Local No. 19, 135 F.3d at

903-05 (concluding that names, addresses and Social Security numbers included in payroll

records did not need to be disclosed to union in order to ensure enforcement of prevailing

wage laws); Sheet Metal Workers Int'l Ass'n, Local No. 9, 63 F.3d at 997-98 (same);

Painting & Drywall Work Pres. Fund, Inc., 936 F.2d at 1303 ("As information that might

reveal the failure of contractors to comply with relevant laws does not in itself cast light on

what HUD is up to, we can find no obvious public interest in its disclosure that is relevant to

this analysis."); People for the Ethical Treatment of Animals v. NIH, No. 10-1818, 2012 WL

1185730, 9 (D.D.C. Apr. 10, 2012) (assuming arguendo that the Animal Welfare Act and

Health Research Extension Acts establish a public interest in knowing "'whether those who

conduct research on animals are treating them humanely,'" and finding that disclosure of

identities of three named researchers would not serve that interest because information

would not reveal anything about the government's own conduct) (quoting plaintiff's

memorandum) (Exemption 7(C)); Long v. DOJ, 778 F. Supp. 2d 222, 236 (N.D.N.Y. 2011)

(rejecting plaintiffs' claims that "disclosure of the vaccine type and date of administration

will shed light on the DOJ's handling of petitions brought under the Vaccine Act"); 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).

236

See Schoenman v. FBI, 573 F. Supp. 2d 119, 149 (D.D.C. 2008) (concluding that

information was properly withheld because "'something, even a modest privacy interest

outweighs nothing every time'" (quoting Nat'l Ass'n of Retired Fed. Employees v. Horner,

879 F.2d 873, 879 (D.C. Cir. 1989))); 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)).; see also FOIA Update, Vol. X, No. 2, at 7 ("FOIA

Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking").

237

See 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)).

Department of Justice Guide the the Freedom of Information Act

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74

Balancing a Privacy Interest in Nondisclosure

Against a Public Interest in Release

If an agency identifies both a substantial (i.e., more than de minimis) privacy

interest in nondisclosure of the requested information and a FOIA public interest in its

disclosure (i.e., the information opens agency action to the light of public scrutiny) 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.

238

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.'"

239

If the privacy interests against

disclosure are greater than the public interests in disclosure, the information may be

properly withheld; alternatively, if the balance is in favor of disclosure the information

should be released.

240

As the Supreme Court has held: "Exemption 6 does not protect against disclosure

[of] every incidental invasion of privacy, only such disclosures as constitute 'clearly

unwarranted' invasions of personal privacy."

241

In balancing these interests, "the

238

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").

239

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"); DOD v. 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).

240

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").

241

Rose, 425 U.S. at 382; see, e.g., Ctr. for Biological Diversity v. Office of the USTR, No. 10-

35102, 2011 U.S. App. LEXIS 19197, at *9 (9th Cir. Sept.16, 2011) (observing that "[i]n

assessing the applicability of Exemption 6 on remand, the district court should 'consider,

first, whether the information is contained in a personnel, medical, or similar file, and,

second, whether release of the information would constitute a clearly unwarranted invasion

of the person's privacy'" and, next, the district court should balance the privacy interests of

the individuals identified in the records against the public interest in disclosure)

Department of Justice Guide the the Freedom of Information Act

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75

'clearly unwarranted' language of Exemption 6 weights the scales in favor of

disclosure"

242

and "creates a 'heavy burden'" for an agency invoking Exemption 6.

243

Although "the presumption in favor of disclosure is as strong [under Exemption

6] as can be found anywhere in the Act,"

244

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.

245

Furthermore, courts

have consistently upheld protection for:

(1) birth dates;

246

(2) religious affiliations;

247

(unpublished disposition); Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009)

(same).

242

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))).

243

Morley, 508 F.3d at 1127, (quoting Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir.

1982)).

244

Wash. Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982).

245

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); Kortlander

v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264, at *29 (D. Mont. Sept. 13, 2011)

("[A]ddresses, social security numbers, dates of birth, criminal histories, past addresses,

private signatures, phone numbers, drivers license numbers, motor vehicle identification

numbers, fax numbers, private e-mail addresses, credit card number, and eBay and Paypal

identifiers.") (Exemptions 6 and 7(C)).

246

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).

247

See, e.g., Church of Scientology v. U.S. Dep't of the Army, 611 F.2d 738, 747 (9th Cir.

1979).

Department of Justice Guide the the Freedom of Information Act

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76

(3) citizenship data;

248

(4) social security numbers;

249

(5) criminal history records;

250

(6) incarceration of United States citizens in foreign prisons;

251

(7) identities of crime victims;

252

248

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).

249

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); Prison Legal News v. Lappin, 780 F.

Supp. 2d 29, 40 (D.D.C. 2011) (finding that "the privacy interest in one's social security

number is self-evident"); 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); Fid. Nat'l Title Ins. Co. v. HHS, No. 91-5484, slip op. at 6-7 (C.D. Cal. Feb.

13, 1992).

250

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); Rimmer v. Holder, 10-1106, 2011 U.S. Dist. LEXIS 107883, at *24

(M.D. Tenn. Sept. 22, 2011) (finding that where the public interest implicated by third

party records is "negligible," "it is clear that the defendants are properly redacting the

names and indentifying information of those connected with the law enforcement

investigation") (Exemption 7(C)); 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).

3

251

See Harbolt v. Dep't of State, 616 F.2d 772, 774 (5th Cir. 1980).

252

See, e.g., Horowitz v. Peace Corps, 428 F.3d 271, 279-80 (D.C. Cir. 2005) (recognizing

that "strong privacy interests are implicated . . . when the individual has reported a sexual

assault"); Pickens v. DOJ, No. 11-1168, 2012 U.S. Dist. LEXIS 30449, at *17 (D.S.C. Mar. 7,

2012) (The court "does not see how disclosure of the limited information that has been

withheld – identifying information of third parties and the victim of Plaintiff's crimes –

would serve the FOIA's underlying purpose, as that information fails to shed light on the

Department of Justice Guide the the Freedom of Information Act

Exemption 6

77

(8) financial information;

253

(9) personal landline and cellular telephone numbers;

254

(10) email addresses;

255

and

operations of the FBI") (Exemptions 6 and 7(C)); 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)).

253

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); Kensington Res. & Recovery v. Dep't of Treasury, No. 10-3538, 2011 U.S.

Dist. LEXIS 71041 (N.D. Ill. June 30, 2011) (determining that "[t]he disclosure of specific

information on the registration records, such as the name, address, or bond serial number

would publicize the financial affairs of the individual bondholders" and "would also expose

the bondholders to unsolicited attempts by [plaintiff] and other companies to collect the

unredeemed bonds"); Green v. United States, 8 F. Supp. 2d 983, 998 (W.D. Mich. 1998),

appeal dismissed, No. 98-1568 (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). But see Reno Newspapers, Inc. v. U.S.

Parole Comm'n, No. 09-683, 2011 U.S. Dist. LEXIS 33957, at *16 (D. Nev. Mar. 29, 2011)

(holding that agency must release "all segregable" information from a parole applicant's

bank statements and other documents submitted to parole officer).

254

See, e.g., Performance Coal Co. v. U.S. Dep't of Labor, No. 10-1698, 2012 WL 746411, * at

8 (D.D.C. Mar. 7, 2012) (holding agency properly withheld names, cell phone numbers, and

home phone numbers) (Exemption 7(C)); Nat'l Rt. to Work Legal Def. and Educ. Found.,

Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661, at *7 (D.D.C. Dec. 12, 2011)

(noting that "there is generally 'a stronger case to be made for the applicability of Exemption

6 to phone numbers . . .'" because "[d]isclosure of these numbers could subject the

individuals to 'annoyance, embarrassment, and harassment in the conduct of their official

and private lives'" (quoting Marshall v. FBI, No. 10–871, 2011 WL 3497801, at *6 (D.D.C.

Aug. 10, 2011))); Lowy v. IRS, No. 10-767, 2011 U.S. Dist. LEXIS 34168, at *51 (N.D. Cal.

Mar. 30, 2011) (concluding that agency provided "sufficient justification for the withholding

and/or redaction of personal information" such as mobile telephone numbers, bank account

numbers of third parties, and similar types of information); Wade v. IRS, 771 F. Supp. 2d

20, 26 (D.D.C. 2011) (determining that the IRS properly withheld the home telephone

numbers of third parties who are permitted to practice before the IRS).

255

See Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 639 F.3d 876, 888

(9th Cir. 2010) (finding that lobbyists' email addresses should be protected from

disclosure unless they are the only way to identify the agent in question); Wilson v.

United States Air Force, No. 08-324, 2009 WL 4782120, at *4 (E.D. Ky. Dec. 9, 2009)

Department of Justice Guide the the Freedom of Information Act

Exemption 6

78

(11) medical information linked to individuals.

256

By contrast, on some occasions, courts have found that the FOIA public interest

outweighs even a strong personal privacy interest in the requested records.

257

Names and Home Addresses

There are numerous decisions concerning requests for lists of names and home

addresses of individuals. Because agencies may neither distinguish between requesters

nor limit the use to which disclosed information is put,

258

courts have found that an

(finding that signatures, personal phone numbers, personal email addresses, and

government email addresses were properly redacted).

256

See, e.g., Yonemoto v. VA, 686 F.3d 681, 696 (9th Cir. 2012) (amended op.) (emails

containing information about employee's illness, conditions for disqualifying individual

from clinical trial for medication, and employee's complaints about coworker); Wadhwa v.

VA, 446 F. App'x 516, 519 (3d Cir. 2011) (per curiam) (unpublished disposition) (third party

medical files); McDonnell v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993) ("living

individual has a strong privacy interest in withholding his medical records"); Long v. DOJ,

778 F. Supp. 2d 222, 236 (N.D.N.Y. 2011) ("list of vaccine type and date of administration");

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);

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).

257

See Roth v. DOJ, 642 F.3d 1161, 1166 (D.C. Cir. 2011) (concluding that "(1) the public has

an interest in knowing whether the federal government is withholding information that

could corroborate a death-row inmate's claim of innocence, and (2) that interest outweighs

the three men's privacy interest in having the FBI not disclose whether it possesses any

information linking them to the murders") (Exemption 7(C)); Lardner v. DOJ, 398 F. App'x

609, 610 (D.C. Cir. 2010) (per curiam) (holding that public interest in names of

unsuccessful clemency applicants outweighed applicants privacy interests); Rosenfeld v.

DOJ, No. 07-3240, 2012 WL 710186, at *8 (N.D. Cal. Mar. 5, 2012) (concluding that any

privacy interest in a traffic violation is "outweighed by the public interest in understanding

whether the FBI used public resources to compile information, without any apparent law

enforcement purpose, to assist Ronald Reagan's political aspirations").

258

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.

Department of Justice Guide the the Freedom of Information Act

Exemption 6

79

analysis of the consequences of disclosure of names and addresses cannot turn on the

identity or purpose of the requester.

259

The Supreme Court has held that compilations

of names and home addresses are protectible under Exemption 6,

260

and that specific

lists may reveal sensitive information beyond the mere names and addresses of the

individuals found on the list.

261

The Court of Appeals for the District of Columbia 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.

262

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.").

259

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 its lobbying efforts on behalf of those retirees).

260

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); Ray, 502 U.S. at 173-

79 (withholding from interview summaries the names and addresses of Haitian refugees

interviewed by State Department about treatment upon return to Haiti).

261

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"). See generally McDonald v. City of Chicago, 130 S.Ct. 3020,

3105 (2010) (finding "we have long accorded special deference to the privacy of the home")

(non-FOIA case); Wilson v. Layne, 526 U.S. 603, 604 (1999) (noting the Fourth

Amendment "embodies centuries-old principles of respect for the privacy of the home")

(non-FOIA case).

262

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 elections)).

Department of Justice Guide the the Freedom of Information Act

Exemption 6

80

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.

263

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.

264

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.

265

263

See Bibles, 519 U.S. at 355-56; DOD v. FLRA, 510 U.S. at 494-502; Ray, 502 U.S. at 173-

79.

264

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)), appeal

dismissed voluntarily, No. 01-1537 (4th Cir. June 25, 2001); 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).

265

See Columbia Riverkeeper v. FERC, 650 F. Supp. 2d 1121, 1131 (D. Or. 2009) (ordering

agency to produce a list of land owner names and addresses where agency has previously

posted a similar list on its website and plaintiffs have demonstrated a public interest in

release of the list); Baltimore Sun v. U.S. Marshals Serv., 131 F. Supp. 2d 725, 729-30 (D.

Md. 2001) (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)), appeal dismissed voluntarily, No. 01-1537 (4th

Cir. June 25, 2001); Or. Natural Desert Ass'n v. U.S. Dep't of the 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)

Department of Justice Guide the the Freedom of Information Act

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81

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.

266

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.

267

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.

268

Against this "powerful public interest,"

269

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."

270

However, the

court found that these privacy interests were not substantial enough to warrant

protection under Exemption 6.

271

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."

272

The

(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 interdiction process").

266

489 F.3d at 1205-06.

267

Id. at 1192.

268

Id. at 1192-96.

269

Id. at 1196.

270

Id. at 1199.

271

Id. at 1200.

272

Id. at 1205.

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court remarked that in this case it did "not find the balancing calculus to be particularly

hard."

273

By contrast, the court held that disclosure of the names of the aid recipients

would constitute a "clearly unwarranted invasion of personal privacy."

274

Whereas the

addresses would shed light directly on whether FEMA improperly disbursed funds, the

names of those aid recipients "'would provide no further insight into the operations of

FEMA.'"

275

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.

276

Redacting Identifying Information

Deletion of the identities of individuals mentioned in a document, with release of

the remaining material, can provide protection for personal privacy while at the same

time opening agency action to the light of public scrutiny.

277

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.

278

Similarly, courts have ordered the disclosure of a variety of medical and

273

Id.

274

Id.

275

Id. at 1205 (quoting Sun-Sentinel Co. v. DHS, 431 F. Supp. 2d 1258, 1271 (S.D. Fla.

2006)).

276

Id.

277

See Carter v. Dep't of Commerce, 830 F.2d 388, 390 (D.C. Cir. 1987) (affirming District

Court's finding that redactions were proper where agency had "already given as much

[unredacted information] as possible without unduly risking disclosure of the identities of

the investigation targets"); Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S.

Dist. LEXIS 129401, at *34 (D. Colo. Dec. 7, 2010) (noting that "[t]he redacted reports and

other information that the SEC has disclosed to date are sufficient to inform the public

about the extent and the nature of the employees' misconduct as well as the SEC's response

to the same"); see also FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6

and Exemption 7(C): Step-by-Step Decision making").

278

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); Ferrigno v. DHS, No. 09-5878, 2011 WL 1345168, at *9 (S.D.N.Y.

Mar. 29, 2011) (holding identity of supervisor in employment-related harassment complaint

could be withheld because "the Supervisor's somewhat low rank, the relatively minor charge

against him, and the weakness of the evidence all weigh against disclosure"); 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

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83

health-related data after deletion of any item identifiable to a specific individual.

279

Similarly, documents voluntarily submitted to the government by private citizens have

been held releasable, as long as redactions are made of personally identifying

information.

280

Nevertheless, in some situations the deletion of personal identifying information

may not be adequate to provide necessary privacy protection.

281

The Supreme Court

recognized this in Rose, and specifically held that if the District Court determined on

remand that the deletions of personal references were not sufficient to safeguard

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).

279

See Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1468-69 (D.C. Cir. 1983) (ordering

disclosure of computerized lists of numbers and types of drugs routinely ordered by the

congressional pharmacy); 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))).

280

See Billington v. DOJ, 258 F. App'x 348, 349 (D.C. Cir. 2007); see also Carter, Fullerton

& Hayes LLC v. FTC, 520 F. Supp. 2d 134, 148 (D.D.C. 2007) (finding agency properly

released text of consumer complaints while redacting personal information pertaining to

individual complainants).

281

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)).

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privacy, then the summaries of disciplinary hearings should not be released.

282

Following this line of reasoning, in Carter v. United States Department of Commerce,

the Court of Appeals for the District of Columbia Circuit upheld the nondisclosure of

public information contained in 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.

283

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.

284

282

425 U.S. at 381; see also, e.g., ACLU v. DOD, 389 F. Supp. 2d 547, 572 (S.D.N.Y. 2005)

(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").

283

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").

284

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

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85

Furthermore, when requested information is "personal and unique" to the

subjects of a record, deletion of personal identifying information may not be adequate to

provide the necessary privacy protection.

285

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."

286

"Glomar" Responses

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,

287

and an agency may have to invoke the

job applicants because any information about members of "select group" that applies for

such job could identify them).

285

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); see, e.g., 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); Rashid v. DOJ,

No. 99-2461, slip op. at 18-19 (D.D.C. June 12, 2001) (concluding "deletion of personal

identifying information, such as names and addresses, may not be adequate to provide the

necessary privacy protection").

286

Cappabianca v. Comm'r, U.S. Customs Serv., 847 F. Supp. 1558, 1565 (M.D. Fla. 1994).

But see 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.").

287

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 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

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86

"Glomar" response, i.e., neither confirm nor deny the existence of any responsive

records.

288

Courts have endorsed Glomar responses to requests seeking records that

might reveal whether an individual government employee was investigated for

misconduct or disciplined, for example, because even to acknowledge the existence of

such records would typically cause an unwarranted invasion of personal privacy.

289

The

Glomar response was also upheld in a case where the public disclosure of certain

information by other agencies "diminished" the privacy of the third party subject, but

where the requester failed to make a sufficient showing of public interest to outweigh

even that diminished privacy interest.

290

Glomar responses are not appropriate,

however, when there is a substantial FOIA public interest in the requested information

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).

288

See Rahim v. FBI, No. 11–2850, 2013 WL 2393048, at *13 (E.D. La. May 31, 2013)

("Defendants' Glomar response invoking exemptions 6 and 7(C) as to [an alleged informant]

was proper.") (Exemptions 6 & 7(C)); 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). See generally FOIA Update, Vol. VII, No. 1, at 3-4 ("OIP

Guidance: Privacy 'Glomarization'").

289

Beck v. DOJ, 997 F.2d 1489 (D.C. Cir. 1993) (affirming Glomar response to request for

records concerning misconduct by two DEA agents) (Exemptions 6 & 7(C)); Lewis v. DOJ,

733 F. Supp. 2d 97, 112 (D.D.C. 2010) ("If an individual is the target of a FOIA request [for

investigative records], the agency to which the FOIA request is submitted may provide a

'Glomar' response, that is, the agency may refuse to confirm or deny the existence of records

or information responsive to the FOIA request on the ground that even acknowledging the

existence of responsive records constitutes an unwarranted invasion of the targeted

individual's personal privacy.") (Exemptions 6 & 7(C)); Smith v. FBI, 663 F. Supp. 2d 1, 5

(D.D.C. 2009) ("Because . . . confirmation of records concerning '[a]ny adverse action or

disciplinary reports on [named] Agent . . .' would necessarily reveal the precise information

Exemption 6 shields, the Glomar response was proper.") (Exemptions 6 & 7(C)); Cawthon v.

DOJ, No. 05-0567, 2006 WL 581250, at *4 (D.D.C. March 9, 2006) (holding that, with

respect to a request for malpractice information, "defendant properly invoked exemption 6

with respect to . . . its Glomar response [as to information maintained in the National

Practitioner Data Bank]") (Exemptions 6 & 7(C)).

290

See Taplin v. DOJ, No. 12-1815, 2013 WL 4804490, at *5 (D.D.C. Sept. 10, 2013) (finding

that although "it is the law of this circuit that another agency's disclosure cannot altogether

preclude [an agency] from asserting a Glomar response, the rule does not speak to the much

narrower issue of whether such a disclosure can diminish a third party's privacy interest"

and holding that third party's "privacy interest exists in a diminished capacity" where

disclosures were made about him by judge and in sheriff's report, but finding that plaintiff

had failed to establish public interest in disclosure sufficient to override even that

diminished privacy interest) (Exemption 7(C)).

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that outweighs the privacy interest.

291

(For a detailed explanation of the "Glomar"

response used in protecting privacy interests in law enforcement records, see the

discussion in the chapter on Exemption 7(C).)

291

See Roth v. DOJ, 642 F.3d 1161, 1176 (D.C. Cir. 2011) (holding that the public's

"general interest in knowing whether the FBI [wa]s withholding information" that

could corroborate death-row inmate's claim of innocence overcame the FBI's Glomar

response for three named individuals) (Exemption 7(C)); Parker v. EOUSA, 852 F.

Supp. 2d 1, 10-13 (D.D.C. 2012) (finding that although an AUSA "has a valid privacy

interest at stake in DOJ's disclosure of disciplinary documents about her," there is a

countervailing "public interest in knowing how DOJ handles the investigation of

unlicensed attorneys").