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‘Strange Bedfellows: Reconciling Privacy & Freedom of Information’
Text of speech at National FOI Day conference, March 16, 2005

By Lee Levine
Levine Sullivan Koch & Schulz

Lee Levine

Paul McMasters, aka Paul McLuhan, has graciously given me my fifteen minutes this morning to talk about developments in the courts during the last year with respect to freedom-of-information issues. That is obviously a very tall order, one that cannot realistically be accomplished in that time frame. Happily, I will be followed this morning by a panel discussion that will focus on a broad range of issues including, most notably, those decisions addressing the executive branch’s ongoing efforts to restrict access to information in the name of national security and, more specifically, the war on terror.

I will focus my remarks this morning on a less noticed, but I believe no less significant threat to freedom of information — i.e., the competing interest in “personal privacy.” I do so for two reasons. First, last Term, the Supreme Court issued an important decision in the Freedom of Information Act area — National Archives & Records Administration v. Favish — a case in which the government successfully resisted disclosure not on the basis of national security, but because of an asserted interest in “privacy.” Second, the last year has witnessed important, but in my view under-publicized developments in judicial construction of the federal Privacy Act, the less well known relative of FOIA, developments that (as a practical matter) may lead to restrictions on public access to government information at least as significant as those imposed by the executive branch in the post-9/11 era.

First, a few words about Favish. At the highest level of generality, this decision does not bring good news — a unanimous Supreme Court decision, written by Justice Anthony Kennedy (the First Amendment’s best friend on this Court) reversing a favorable ruling below and shielding from the public information about a matter of obvious public concern. Digging a bit more deeply, one is tempted to discount its outcome in the Supreme Court as the confluence of, as they say in the movies, a “series of unfortunate events” — i.e., a FOIA request by a single individual, not satisfied with the results of five separate official investigations into the death of former Deputy White House Counsel Vince Foster, seeking photographs taken of him by the Park Service Police, at the scene of his death, over the heart-rending objections of his widow, mother and sister.

At bottom, however, the Court in Favish had some important things to say about FOIA, and specifically about the status of “privacy” in construing FOIA, that will plainly have ramifications for public access to government information more generally. In Favish, the Court addressed two specific questions about the scope of Exemption 7(c) which, as we know, allows an agency to withhold from disclosure under FOIA “records or information compiled for law enforcement purposes” if their production “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

First, the Court decided that the “personal privacy” referenced in Exemption 7(c) extended beyond the subject of the photographs — i.e., Mr. Foster himself — to encompass members of his family. In so holding, Justice Kennedy relied, in significant part, on the different language used by Congress in the two privacy-related exemptions to FOIA — Exemption 7(c) and Exemption 6, which authorize the withholding of “personnel and medical files” only when disclosure “would constitute a clearly unwarranted invasion of personal privacy.” In Favish, the Court emphasized that “Exemption 7(c)’s comparative breadth is no mere accident in drafting” and that the “concept of personal privacy” it reflects is “not some limited or ‘cramped notion’ of that idea.” Indeed, the unanimous Court tells us that “the statutory privacy right protected by Exemption 7(c) goes beyond the common law and the Constitution” — i.e., it is broader than either of those sources of law explicating the scope of the privacy right.

To me, the significance of these observations by the Court in Favish is precisely that they are made in the context of Exemption 7(c), the “privacy” exemption that applies to “records or information compiled for law enforcement purposes.” The “War on Terror,” of course, is equal parts a national security operation and an exercise in law enforcement. The elastic and, for the moment at least, unchartered notion of “privacy” for purposes of Exemption 7(c) that the Court endorses in Favish is available to those federal agencies pursuing terrorism-related investigations as an alternative ground on which to deny FOIA requests. That, I suggest, is not good news.

Second, the Court in Favish spoke to the burden placed on FOIA requesters when confronted with a claim that the information they seek is exempt from disclosure under Exemption 7(c). Justice Kennedy recognized that, even where a legitimate privacy interest (however that may be defined) is implicated by such a request, the exemption’s focus on “unwarranted” invasions of privacy requires agencies and courts to “balance the … privacy interest against the public interest in disclosure.”

Happily, the Court further emphasized that:

“[A]s a general rule, when documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the information. A person requesting the information needs no preconceived idea of the uses the data might serve. The information belongs to the citizens to do with as they choose.”

Nevertheless, Justice Kennedy underscored that the “general rule” goes out the window in Exemption 7(c) cases. In those cases, “the citizen must 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.” Indeed, if a FOIA requester cannot show that “the information is likely to advance that interest,” the invasion of privacy is, by definition, “unwarranted” and the information is properly withheld from disclosure. In the specific case of “photographic images and other data pertaining to an individual who died under mysterious circumstances,” the Court concluded that the justification most likely to satisfy Exemption 7(c)’s public interest requirement is that the information is necessary to show the investigative agency or other responsible officials acted negligently or otherwise improperly in performing their duties.

The burden that Favish places on FOIA requesters in Exemption 7(c) cases is not confined to cases involving “an individual who died under mysterious circumstances.” Rather, the Court painted its “holding” in Favish in the following, decidedly broad strokes:

“[W]here there is a privacy interest protected by Exemption 7(c) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a mere 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.”

Put differently, only when the requester has “made a meaningful evidentiary showing” will there be “a counterweight on the FOIA scale for the court to balance against the cognizable privacy interests in the requested records.”

To many, the Court’s articulation of the burden placed on FOIA requesters is welcome news because it is less draconian than the formulation articulated by the D.C. Circuit in SafeCard Services v. SEC, 926 F.2d 1197 (DC Cir. 1991), which erected a per se rule exempting all “private” information contained in law enforcement records in the absence of actual evidence of agency misfeasance. Still, I submit, that the Court’s formulation in Favish is strong medicine that appears to goes much further than simply to preclude the Don Quixote-esque conspiracy theorist from invoking FOIA as his weapon of choice in an endless crusade to tilt against windmills. Although it is admittedly too early to tell for sure, and the Court’s requirement of a “meaningful evidentiary showing” will no doubt be the subject of much litigation explicating what such a showing requires, the Court has endorsed what appears to be a significant obstacle in all Exemption 7(c) cases.

The Court’s effort in Favish to reconcile “the public interest in disclosure” against the competing interest in “personal privacy” is, of course, by no means unique. The same issue arises in a number of contexts and, indeed, was in many ways the subject of the Supreme Court’s 2001 decision in Bartnicki v. Vopper. There, the Court both (1) held that the government may not typically prohibit the disclosure of information about a “matter of public concern” and (2) cautioned that it may do so when necessary to vindicate an “interest of the highest order” which, the Court explained in Bartnicki, may well include an interest in “personal privacy.”

In that regard, Justice Kennedy’s opinion for the Court in Favish shares some of the characteristics of Justice Breyer’s concurring opinion in Bartnicki — specifically, an endorsement of the notion that privacy rights weigh heavily in the balance when placed on the scales alongside the competing interest in the free flow of information about matters of public concern.

An analogous issue also arises in two important Privacy Act cases currently being litigated across the river. The plaintiffs in those cases are Dr. Wen Ho Lee, the Los Alamos scientist prosecuted for the improper handling of nuclear secrets, and Dr. Steven Hatfill, the government scientist identified as a so-called “person of interest” in the ongoing investigation of the September 2001 anthrax mailings. They both have brought civil actions against various federal agencies for unlawfully leaking “personal” information about them to the press in violation of the Privacy Act.

Both cases have received significant attention because the plaintiffs have sought to subpoena journalists to reveal the identities of confidential government sources who allegedly leaked Privacy Act-protected information to the press. In the interest of full disclosure, my firm (like Floyd Abrams’) represents several of the journalists who have received such subpoenas in both cases, including two who have been held in contempt in the Wen Ho Lee case.

My purpose in raising these cases this morning, however, is not to debate the merits or efficacy of the reporter’s privilege. It is, rather, to talk a bit about the theory of Privacy Act liability that each of these plaintiffs is advancing in these cases, a theory the validity of which has yet to be seriously examined by any court. The Privacy Act, of course, generally precludes federal agencies from disclosing “any record which is contained in a system of records by any means of communication to any person.”

The act both imposes criminal liability on government employees who disclose protected information and creates a cause of action for damages that private citizens such as Drs. Lee and Hatfill can bring against a federal agency from which protected information is leaked.

The Lee and Hatfill cases are based on the contention that the Privacy Act is violated whenever information reflected in a government record about an identifiable individual is disclosed to the public, without regard to whether the information disclosed relates to a matter of legitimate public concern. Thus, according to Dr. Lee, when the government publicly announced that an unnamed nuclear scientist had been dismissed because he was under active investigation for engaging in espionage, the subsequent public disclosure of any information about him or the investigation constituted a per se violation of the Privacy Act.

Similarly, after the government sought to assuage public fears about the Anthrax mailings by disclosing details of its investigation that implicated Dr. Hatfill as a “person of interest,” it necessarily — according to Dr. Hatfill — violated the Privacy Act as well. The implications of this theory for freedom of information are, I submit, truly breathtaking.

If accepted, public officials will literally be precluded — on pain of criminal and civil liability — from disseminating to the public any information about their investigations of crimes of undeniably legitimate public concern that happens to reside in a government record. The terms of the Privacy Act are concededly broad and imprecise, which affords these litigants something of a toe-hold from which to prosecute such claims. And, no court has squarely addressed the efficacy of a Privacy Act claim in such circumstances.

Still, I submit that it is highly doubtful that Congress ever intended the statute to preclude the government from disseminating information of such obvious significance to its citizens. Indeed, in Cochran v. United States, 770 F. 2d 949, 959, n. 15 (1985), the 11th Circuit spoke to the issue, albeit in dicta, in language that I suggest ought to be dispositive:

“As an aside, it might be questioned whether current newsworthy information of interest to the community, … even falls within the strictures of the Privacy Act. As the legislative history indicates, the Privacy Act was primarily concerned with the protection of individuals against the release of stale personal information contained in government computer files to other government agencies or private persons. … The legislative history of the Act does not evidence any intent to prevent the disclosure by the government to the press of current, newsworthy information of importance and interest to a large number of people.”

Furthermore, there is a great public interest in insuring the dissemination of current, newsworthy information by the press, particularly when the information relates to the operations of government.

This important issue has, I fear, been lost in the avalanche of controversy surrounding the assertion of a reporter’s privilege by the journalists subpoenaed in these cases. As important as that issue is, the predicate question raised by the Lee and Hatfill cases — whether the government is precluded by the Privacy Act from sharing such information with the public in the first place — surely deserves some serious judicial scrutiny as well.


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Update on FOI-related congressional legislation over the past year for 2005 National FOI Day conference. 03.15.05

National FOI Day

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