Freedom of Information Act Guide, May 2004

Personal privacy interests are protected by two provisions of the FOIA, Exemptions 6 and 7(C). While the application of Exemption 7(C), discussed below, is limited to information compiled for law enforcement purposes, Exemption 6 permits the government to withhold all 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." ⁽¹⁾ These exemptions are a vitally important part of the FOIA's statutory scheme, ⁽²⁾ but of course they cannot be invoked to withhold from a requester information pertaining only to himself. ⁽³⁾

Initial Considerations

To warrant protection under Exemption 6, information must first meet its threshold requirement; in other words, it must fall within the category of "personnel and medical files and similar files." ⁽⁴⁾ Personnel and medical files are easily identified, but there has not always been universal agreement about the meaning of the term "similar files." Prior to 1982, judicial interpretations of that phrase varied considerably and included a troublesome line of cases in the Court of Appeals for the District of Columbia Circuit, commencing with Board of Trade v. Commodity Futures Trading Commission, ⁽⁵⁾ which narrowly construed the term to encompass only "intimate" personal details.

In 1982, the Supreme Court acted decisively to resolve this controversy once and for all. In United States Department of State v. Washington Post Co., ⁽⁶⁾ it firmly held, based upon a review of the legislative history of the FOIA, that Congress intended the term to be interpreted broadly, rather than narrowly. ⁽⁷⁾ 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." ⁽⁸⁾ Rather, the Court made clear that all information that "applies to a particular individual" meets the threshold requirement for Exemption 6 protection. ⁽⁹⁾ This means, of course, that this threshold is met if the information applies to any particular, identifiable individual -- which makes it readily satisfied in all but the most unusual cases of questionable identifiability. ⁽¹⁰⁾

The D.C. Circuit, sitting en banc, subsequently reinforced the Supreme Court's broad interpretation of this term by holding that a tape recording of the last words of the Space Shuttle Challenger crew, which "reveal[ed] the sound and inflection of the crew's voices during the last seconds of their lives . . . contains personal information the release of which is subject to the balancing of the public gain against the private harm at which it is purchased." ⁽¹¹⁾ Not only did the D.C. Circuit determine that "lexical" and "non-lexical" information are subject to identical treatment under the FOIA, ⁽¹²⁾ it also concluded that Exemption 6 is equally applicable to the "author" and the "subject" of a file. ⁽¹³⁾

Once it has been established that information meets the threshold requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue "would constitute a clearly unwarranted invasion of personal privacy." ⁽¹⁴⁾ This requires a balancing of the public's right to disclosure against the individual's right to privacy. ⁽¹⁵⁾ First, it must be ascertained whether a protectible privacy interest exists that would be threatened by disclosure. If no privacy interest is found, further analysis is unnecessary and the information at issue must be disclosed. ⁽¹⁶⁾

On the other hand, if a privacy interest is found to exist, the public interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure. ⁽¹⁷⁾ If no public interest exists, the information should be protected; as the D.C. Circuit has observed, "something, even a modest privacy interest, outweighs nothing every time." ⁽¹⁸⁾ Similarly, if the privacy interest outweighs the public interest, the information should be withheld; if the opposite is found to be the case, the information should be released. ⁽¹⁹⁾

The Reporters Committee Decision

In 1989, the Supreme Court issued a landmark FOIA decision in United States Department of Justice v. Reporters Committee for Freedom of the Press, ⁽²⁰⁾ which for the past fifteen years has governed all privacy-protection decisionmaking under the Act. The Reporters Committee case involved FOIA requests from members of the news media for access to any criminal history records -- known as "rap sheets" -- maintained by the FBI regarding certain persons alleged to have been involved in organized crime and improper dealings with a corrupt Congressman. ⁽²¹⁾ In holding "rap sheets" entitled to protection under Exemption 7(C), the Supreme Court set forth five guiding principles that govern the process by which determinations are made under both Exemptions 6 and 7(C) alike:

First, the Supreme Court made clear in Reporters Committee that substantial privacy interests can exist in personal information even though the information has been made available to the general public at some place and point in time. Establishing a "practical obscurity" standard, ⁽²²⁾ the Court observed that if such items of information actually "were 'freely available,' there would be no reason to invoke the FOIA to obtain access to" them. ⁽²³⁾

Second, the Court articulated the general rule that the identity of a FOIA requester cannot be taken into consideration in determining what should be released under the Act. With the single exception that of course an agency will not invoke an exemption when the particular interest to be protected is the requester's own interest, the Court declared, "the identity of the requesting party has no bearing on the merits of his or her FOIA request." ⁽²⁴⁾

Third, the Court declared that in determining whether any public interest would be served by a requested disclosure, one should no longer consider "the purposes for which the request for information is made." ⁽²⁵⁾ Rather than turn on a requester's "particular purpose," circumstances, or proposed use, the Court ruled, such determinations "must turn on the nature of the requested document and its relationship to" the public interest generally. ⁽²⁶⁾

Fourth, the Court narrowed the scope of the public interest to be considered under the Act's privacy exemptions, declaring for the first time that it is limited to "the kind of public interest for which Congress enacted the FOIA." ⁽²⁷⁾ This "core purpose of the FOIA," as the Court termed it, ⁽²⁸⁾ is to "shed[] light on an agency's performance of its statutory duties." ⁽²⁹⁾

Fifth, the Court established the proposition, under Exemption 7(C), that agencies may engage in "categorical balancing" in favor of nondisclosure. ⁽³⁰⁾ Under this approach, which builds upon the above principles, it may be determined, "as a categorical matter," that a certain type of information always is protectible under an exemption, "without regard to individual circumstances." ⁽³¹⁾

Privacy Considerations

The first step in the Exemption 6 balancing process requires an assessment of the privacy interests at issue. ⁽³²⁾ The relevant inquiry is whether public access to the information at issue would violate a viable privacy interest of the subject of such information. ⁽³³⁾ In its Reporters Committee decision, the Supreme Court stressed that "both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person," ⁽³⁴⁾ just as in National Archives & Records Administration v. Favish the Court very recently drew upon the common law to find the principle of "survivor privacy" encompassed within the Act's privacy exemptions. ⁽³⁵⁾ Indeed, in Reporters Committee the Court found a "strong privacy interest" in the nondisclosure of records of a private citizen's criminal history, "even where the information may have been at one time public." ⁽³⁶⁾ Of course, information need not be intimate or embarrassing to qualify for Exemption 6 protection. ⁽³⁷⁾

And for its part, the Court of Appeals for the District of Columbia Circuit has 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." ⁽³⁸⁾ Therefore, as a general rule, the threat to privacy need only be real rather than speculative. ⁽³⁹⁾ In some cases, this principle formerly was interpreted to mean that the privacy interest must be threatened by the very disclosure of information and not by any possible "secondary effects" of such release. ⁽⁴⁰⁾ The D.C. Circuit, however, subsequently clarified its holding in Arieff v. United States Department of the Navy, ⁽⁴¹⁾ which had been read as stating that "secondary effects" were not cognizable under Exemption 6. In National Association of Retired Federal Employees v. Horner [hereinafter NARFE], the D.C. Circuit explained that the point in Arieff was that Exemption 6 was inapplicable because there was only "mere speculation" of a privacy invasion, i.e., only a slight possibility that the information, if disclosed, would be linked to a specific individual. ⁽⁴²⁾

Most recently, the Supreme Court did not at all concern itself with any issue of "secondary effects" or "derivative privacy interest" in Favish. ⁽⁴³⁾ Rather, a unanimous Court in Favish readily found that the surviving family members of former Deputy White House Counsel Vincent Foster had a protectible privacy interest in his death-scene photographs, based in part on the family's fears of "intense scrutiny by the media." ⁽⁴⁴⁾ In doing so, the Court did not view a privacy interest based on "limit[ing] attempts to exploit pictures of the family member's remains for public purposes" as in any way too attenuated to qualify as a protectible privacy interest in the first place. ⁽⁴⁵⁾ This means that any consideration of potential privacy invasions must include both what the requester might do with the information at hand and also what any other requester, or ultimate recipient, might do with it as well. ⁽⁴⁶⁾

Indeed, it has explicitly been recognized by the D.C. Circuit that "[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." ⁽⁴⁷⁾ Even prior to the D.C. Circuit's clarification in NARFE, much less the Supreme Court's subsequent illustration of this point in Favish, one court pragmatically observed that to distinguish between the initial disclosure and unwanted intrusions as a result of that disclosure would be "to honor form over substance." ⁽⁴⁸⁾

In some instances, the disclosure of information might involve no invasion of privacy because, fundamentally, the information is of such a nature that no expectation of privacy exists. ⁽⁴⁹⁾ For example, civilian federal employees generally have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees ⁽⁵⁰⁾ or regarding the parts of their successful employment applications that show their qualifications for their positions. ⁽⁵¹⁾ Historically, the Department of Defense, as a matter of policy, in most circumstances disclosed the name, rank, gross salary, duty assignments, duty phone numbers, source of commission, promotion sequence number, awards and decorations, professional military education, duty status, and other nonsensitive details of individual military personnel, as well as comparable information concerning individual civilian employees. ⁽⁵²⁾ And by regulation, the Department of the Army discloses substantially the same information concerning its military and civilian personnel. ⁽⁵³⁾ However, in light of recent terrorist activities around the world, the Department of Defense now regularly withholds personally identifying information about all particular military and civilian employees with respect to whom disclosure would "raise security or privacy concerns." ⁽⁵⁴⁾

Additionally, if the information at issue is particularly well known or is widely available within the public domain, there generally is no expectation of privacy. ⁽⁵⁵⁾ Nor does an individual have any expectation of privacy with respect to information that he himself has made public. ⁽⁵⁶⁾ On the other hand, if the information in question was at some time or place available to the public, but now is "hard-to-obtain information," the individual to whom it pertains may have a privacy interest in maintaining its "practical obscurity." ⁽⁵⁷⁾ Similarly, the mere fact that some of the information may be known to some members of the public does not negate the individual's privacy interest in preventing further dissemination to the public at large. ⁽⁵⁸⁾ For example, the Supreme Court in Favish did not diminish its estimation of "the weighty privacy interests involved" just because Vincent Foster's death occurred on national parkland and thus was "in public." ⁽⁵⁹⁾ And one court has found that the subject of a photograph introduced into the 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." ⁽⁶⁰⁾

As another example, FOIA requesters, except when they are making first-party requests, do not ordinarily expect that their names will be kept private; therefore, release of their names would not cause even the minimal invasion of privacy necessary to trigger the balancing test. ⁽⁶¹⁾ Personal in-formation about FOIA requesters, however, such as home addresses and home telephone numbers, should not be disclosed. ⁽⁶²⁾ In addition, the identities of first-party requesters under the Privacy Act of 1974 ⁽⁶³⁾ 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. ⁽⁶⁴⁾

The majority of courts to have considered the issue have held that individuals who write to the government expressing personal opinions generally do so with some expectation of confidentiality unless they are advised to the contrary in advance; their identities, but not necessarily the substance of their letters, ordinarily should be withheld. ⁽⁶⁵⁾ Recently, for instance, the Court of Appeals for the Fourth Circuit protected under Exemption 7(C) the names and addresses of people who wrote to the IRS expressing concerns about an organization's tax-exempt status. ⁽⁶⁶⁾ Likewise, 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. ⁽⁶⁷⁾ Nevertheless, in some circumstances courts have refused to accord privacy protection to such government correspondents. ⁽⁶⁸⁾

Additionally, neither corporations nor business associations possess protectible privacy interests. ⁽⁶⁹⁾ The closely held corporation or similar business entity, however, is an exception to this principle: "While corporations have no privacy, personal financial information is protected, including information about small businesses when the individual and corporation are identical." ⁽⁷⁰⁾ Such an individual's expectation of privacy is, however, diminished with regard to matters in which he or she is acting in a business capacity. ⁽⁷¹⁾ In Doe v. Veneman, on the other hand, the District Court for the Western District of Texas recently 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. ⁽⁷²⁾

The Supreme Court held unanimously in Favish that the "FOIA recognizes surviving family members' right to personal privacy with respect to their close relative's death-scene images." ⁽⁷³⁾ This case involved a request for several death-scene photographs of Deputy White House Counsel Vincent Foster. ⁽⁷⁴⁾ The government protected the photographs under the FOIA, but the lower courts ordered them disclosed. ⁽⁷⁵⁾ Favish argued, relying on particular language in Reporter's Committee, that only the individual who was the direct "subject" of the records could have a privacy interest in those records. ⁽⁷⁶⁾ The Court flatly rejected this argument, stating that "[t]he right to personal privacy is not confined, as Favish argues, to the 'right to control information about oneself. Favish misreads [our opinion] in Reporter's Committee and adopts too narrow an interpretation of the case's holding." ⁽⁷⁷⁾

The Court then decided that "survivor privacy" was a valid privacy interest protected by Exemption 7(C), based on three factors. First, Reporter's Committee did not restrict personal privacy as "some limited or 'cramped notion' of that idea," ⁽⁷⁸⁾so personal privacy is broad enough to protect surviving family members' "own privacy rights against public intrusions." ⁽⁷⁹⁾ 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." ⁽⁸⁰⁾ Third, the Court reasoned that Congress used that background in creating Exemption 7(C), including the fact that the governmentwide FOIA policy memoranda of two Attorneys General had specifically extended privacy protection to families. ⁽⁸¹⁾

Thus, the Supreme Court endorsed the holdings of several lower courts in recognizing that surviving family members have a protectible privacy interest in sensitive, often graphic, personal details about the circumstances surrounding an individual's death. ⁽⁸²⁾ Further, while the Favish case involved graphic photographs, the Court's decision also supported the holdings of other courts that even information that is not so graphically sensitive in and of itself may be withheld to protect the privacy interests of surviving family members if disclosure would cause "'a disruption of their peace of minds.'" ⁽⁸³⁾

Also of significance is the fact that the Supreme Court's decision in Favish made it quite clear that the Court was not recognizing the "survivor privacy" principle on the basis of any surviving privacy interest of Mr. Foster, i.e., his "own posthumous reputation or some other interest personal to him." ⁽⁸⁴⁾ Instead, the principle was applied based upon the Foster family's "own right and interest" in personal privacy protection. ⁽⁸⁵⁾ The Court characterized this interest as the privacy interest of the family members in being "secure [in] their own refuge from a sensation-seeking culture[,] for their own peace of mind and tranquility." ⁽⁸⁶⁾ Thus, the Court's adoption of "survivor privacy" does not alter the longstanding FOIA rule that death extinguishes one's privacy rights. ⁽⁸⁷⁾ Most specifically, the Court in Favish did not place any reliance on a recent potential variant of the concept that "focuse[d] on the interests of the deceased person even apart from the interests of his or her survivors." ⁽⁸⁸⁾ That decedent-based approach has never been embraced as a matter of policy by the Department of Justice, and the Supreme Court likewise did not embrace it in Favish. ⁽⁸⁹⁾

On another point involved in Favish, public figures do not surrender all rights to privacy by placing themselves in the public eye, though certainly their expectations of privacy in general may be diminished. In some instances, "[t]he degree of intrusion is indeed potentially augmented by the fact that the individual is a well known figure." ⁽⁹⁰⁾ It has been held that dis-closure of sensitive personal information contained in investigative records about a public figure is appropriate "only where exceptional interests militate in favor of disclosure." ⁽⁹¹⁾ Thus, although one's status as a public figure might in some circumstances factor into the privacy balance, a public figure does not, by virtue of his status, forfeit all rights of privacy. ⁽⁹²⁾ Indeed, in Favish, former Deputy White House Counsel Vincent Foster's status as both a public figure in the "Whitewater" matter and a high-level government official did not, in the Supreme Court's opinion, "detract" at all from the "weighty privacy interests involved." ⁽⁹³⁾ Likewise, a candidate for a political office, either federal or nonfederal, does not forfeit all rights to privacy. ⁽⁹⁴⁾ It also should be noted in this regard that, unlike under the Privacy Act, foreign nationals are entitled to the same basic privacy rights under the FOIA as are U.S. citizens. ⁽⁹⁵⁾

Individuals do not waive their privacy rights merely by signing a document that states that information may be released to third parties under the FOIA. ⁽⁹⁶⁾ As one court has observed, such a statement is not a waiver of the right to confidentiality, it is merely a warning by the agency and corresponding acknowledgment by the signers "that the information they were providing could be subject to release." ⁽⁹⁷⁾ Similarly, individuals who sign a petition, knowing that those who sign afterward will observe their signatures, do not waive their privacy interests. ⁽⁹⁸⁾ 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]." ⁽⁹⁹⁾

It also is important to remember that while the government may voluntarily or involuntarily waive its right to an exemption when its own interests are at stake, it cannot waive an individual's privacy interests under the FOIA by unilaterally publicizing information about that person. ⁽¹⁰⁰⁾ The privacy interest inherent in Exemption 6 "belongs to the individual, not the agency holding the information," and "the fact that otherwise private information at one time or in some way may have been placed in the public domain does not mean that a person irretrievably loses his or her privacy interest in the information." ⁽¹⁰¹⁾

In addition, individuals who testify at criminal trials do not forfeit their rights to privacy except on those very matters that become part of the public record. ⁽¹⁰²⁾ Nor do individuals who plead guilty to criminal charges lose all rights to privacy with regard to the proceedings against them. ⁽¹⁰³⁾ Similarly, individuals who provide law enforcement agencies with reports of illegal conduct have well-recognized privacy interests, particularly when such persons reasonably fear reprisals for their assistance. ⁽¹⁰⁴⁾ Even absent any evidence of fear of reprisals, however, witnesses who provide information to investigative bodies -- administrative and civil, as well as criminal -- ordinarily are accorded privacy protection. ⁽¹⁰⁵⁾ (For a more detailed discussion of the privacy protection accorded such law enforcement sources, see Exemption 7(C), below.)

An agency ordinarily is not required to conduct research to determine whether an individual has died or whether his activities have sufficiently become the subject of public knowledge so as to bar the application of Exemption 6. ⁽¹⁰⁶⁾ Most recently, and quite significantly, the D.C. Circuit upheld the use of the FBI's "100-year rule," whereby the FBI assumes that an individual is alive unless his or her birthdate is more than 100 years ago, in making its privacy protection determinations. ⁽¹⁰⁷⁾ This general rule is further strengthened by the Supreme Court's observations in Reporters Committee that "without regard to individual circumstances" certain categories of records will always warrant privacy protection and that "the standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be avoided." ⁽¹⁰⁸⁾ Before the D.C. Circuit's decision in that case several courts, faced with very old documents, refused to accept the presumption that all individuals mentioned in such documents were alive. ⁽¹⁰⁹⁾

Faced with "reverse" FOIA challenges, several courts have had to consider whether to order agencies not to release records pertaining to individuals that agencies had determined should be disclosed. ⁽¹¹⁰⁾ In a case that reached the Court of Appeals for the Eighth Circuit, the signers of a petition requesting a referendum to abolish a mandatory payment by pork producers sued to prevent the Department of Agriculture from releasing their names pursuant to a FOIA request. ⁽¹¹¹⁾ The Eighth Circuit agreed that, under the standards of the Administrative Procedure Act, ⁽¹¹²⁾ the Department of Agriculture's initial disclosure determination was not in accordance with law and the names must be withheld. ⁽¹¹³⁾

By contrast, a Native Hawaiian group brought suit to enjoin the Department of the Navy from making public certain information concerning a large group of Native Hawaiian human remains that had been inventoried pursuant to the Native American Graves Protection and Repatriation Act. ⁽¹¹⁴⁾ The court in that case held that the agency properly had determined that the information did not qualify for Exemption 6 protection and that it could be released. ⁽¹¹⁵⁾

These privacy "reverse" FOIA cases are similar in posture to the more common "reverse" FOIA cases that are based upon a business submitter's claim that information falls within Exemption 4, cases which ordinarily are triggered by the "submitter notice" requirements of Executive Order 12,600. ⁽¹¹⁶⁾ (See the further discussion of this point under "Reverse" FOIA, below.) Despite this similarity, though, there is no requirement that an agency notify record subjects of the intent to disclose personal information about them or that it "track down an individual about whom another has requested information merely to obtain the former's permission to comply with the request." ⁽¹¹⁷⁾ Of course, a party seeking to protect his or her own privacy in-terest always can move to intervene in an ongoing lawsuit between an agency and a FOIA requester. ⁽¹¹⁸⁾

Factoring in the Public Interest

Once it has been determined that a personal privacy interest is threatened by a requested disclosure, the second step in the balancing process comes into play; this stage of the analysis requires an assessment of the public interest in disclosure. ⁽¹¹⁹⁾ The burden of establishing that disclosure would serve the public interest is on the requester. ⁽¹²⁰⁾ In its Re-porters Committee decision, the Supreme Court limited the concept of public interest under the FOIA to the "core purpose" for which Congress enacted it: To "shed[] light on an agency's performance of its statutory duties." ⁽¹²¹⁾ Information that does not directly reveal the operations or activities of the federal government, ⁽¹²²⁾ the Supreme Court repeatedly has stressed, "falls outside the ambit of the public interest that the FOIA was enacted to serve." ⁽¹²³⁾ 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. ⁽¹²⁴⁾ And, as the Supreme Court in Favish pointedly emphasized, "the public interest sought to be advanced [must be] a significant one." ⁽¹²⁵⁾

Even prior to Reporters Committee the law was clear that disclosure must benefit the public overall and not just the requester himself. For example, a number of courts determined that a request made for purely commercial purposes does not further a public interest. ⁽¹²⁶⁾ The Court of Appeals for the Ninth Circuit alone had adopted an approach that specifically factored the requester's personal interest in disclosure into the balancing process. ⁽¹²⁷⁾

In Reporters Committee, the Supreme Court approved the majority view that the requester's personal interest is irrelevant. First, as the Court emphasized, the requester's identity can have "no bearing on the merits of his or her FOIA request." ⁽¹²⁸⁾ In so declaring, the Court ruled unequivocally that agencies should treat all requesters alike in making FOIA disclosure decisions; the only exception to this, the Court specifically noted, is that of course an agency should not withhold from a requester any information that implicates only that requester's own interest. ⁽¹²⁹⁾ Furthermore, the "public interest" balancing required under the privacy exemptions should not include consideration of the requester's "particular purpose" in making the request. ⁽¹³⁰⁾ Instead, the Court has instructed, the proper approach to the balancing process is to focus on "the nature of the requested document" and to consider "its relationship to" the public interest generally. ⁽¹³¹⁾ This approach thus does not permit attention to the special circumstances of any particular FOIA requester. ⁽¹³²⁾ Rather, it necessarily involves a more general "public interest" assessment based upon the contents and context of the records sought and their connection to any "public interest" that would be served by disclosure. In making such assessments, agencies should look to the possible effects of disclosure to the public in general. ⁽¹³³⁾

Accordingly, a request made for the purpose of obtaining "impeachment evidence, such as that required to be produced pursuant to Brady v. Maryland" does not further the public interest; ⁽¹³⁴⁾ nor does a request made in order to obtain or supplement discovery in a private lawsuit serve the public interest. ⁽¹³⁵⁾ 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. ⁽¹³⁶⁾

One purpose that the FOIA was designed for is to "check against corruption and to hold the governors accountable to the governed." ⁽¹³⁷⁾ Indeed, information that would inform the public of violations of the public trust has a strong public interest and is accorded great weight in the balancing process. ⁽¹³⁸⁾ As a general rule, demonstrated wrongdoing of a serious and intentional nature by a high-level government official is of sufficient public interest to outweigh almost any privacy interest of that official. ⁽¹³⁹⁾

By contrast, less serious misconduct by low-level agency employees generally is not considered of sufficient public interest to outweigh the privacy interest of the employee. ⁽¹⁴⁰⁾ Nor is there 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. ⁽¹⁴¹⁾

And any asserted "public interest" in resolving mere allegations of wrongdoing cannot outweigh an individual's privacy interest in avoiding unwarranted association with such allegations. ⁽¹⁴²⁾ Indeed, in Favish, the Supreme Court firmly held that mere allegations of wrongdoing are "insufficient" to satisfy the "public interest" standard required under the FOIA. ⁽¹⁴³⁾ The Court observed that if "bare allegations" could be sufficient to satisfy the public interest requirement, then the exemption would be "transformed .  . . into nothing more than a rule of pleading." ⁽¹⁴⁴⁾ Indeed, if mere allegations were all that were necessary to override a personal privacy interest, then that privacy interest would become worthless. ⁽¹⁴⁵⁾

Moreover, even when the existence of an investigation of misconduct has become publicly known, the accused individual ordinarily has an overriding privacy interest in not having the further details of the matter disclosed. ⁽¹⁴⁶⁾ And even where misconduct actually is found, the agency is not necessarily required to disclose every piece of information pertaining to the investigation. ⁽¹⁴⁷⁾

As an exception to the general rule of protecting the details of alleged but unproven misconduct, it is the policy of the Department of Justice to disclose the results of its Office of Professional Responsibility (OPR) investigations of its attorneys more broadly. The Department has determined that because of the special role of its attorneys in litigation and investigations there is a heightened public interest in their activities, comparable to the heightened interest in the activities of high-level officials, particularly in the context of the strong public interest in the effectiveness of the OPR misconduct-investigation process. ⁽¹⁴⁸⁾ Accordingly, upon completion of an OPR investigation, the Department's policy is to disclose the final disposition when (1) there is a finding of intentional or knowing professional misconduct in the course of an investigation or litigation and the public interest outweighs the attorney's privacy interest and any law enforcement interests; (2) there are allegations of serious professional misconduct where there has been a demonstration of public interest in the disposition, including matters in which there has been a public referral by a court or bar association, and the public interest outweighs the attorney's privacy interest and any law enforcement interests; or (3) the attorney requests disclosure and law enforcement interests would not be compromised. ⁽¹⁴⁹⁾

Prior to Reporters Committee, some courts held that the public interest in disclosure may be embodied in other federal statutes. ⁽¹⁵⁰⁾ In light of Reporters Committee and National Association of Retired Federal Employees v. Horner [hereinafter NARFE], ⁽¹⁵¹⁾ the Courts of Appeals for the District of Columbia, First, Second, Sixth, Seventh, Tenth, and Eleventh Circuits flatly rejected this approach, refusing to order disclosure of the home addresses of government employees on the explicit basis that the public interest in disclosure evidenced in the Federal Service Labor-Management Relations Act ⁽¹⁵²⁾ [hereinafter FSLMRA] cannot be factored into the balance under the FOIA. ⁽¹⁵³⁾ On the other hand, the Third, Fifth, and Ninth Circuit Courts of Appeals reached the opposite conclusion and ordered disclosure of the home addresses of bargaining unit employees to unions that requested them under the FSLMRA. ⁽¹⁵⁴⁾ These circuit courts all declared that the Supreme Court had not considered specifically whether the public policy favoring collective bargaining embodied in the FSLMRA could be considered in balancing under the FOIA; consequently, none of these courts found an inconsistency between its holding and the teachings of Reporters Committee. ⁽¹⁵⁵⁾

Because of this split in the circuits, the Supreme Court granted certiorari in the Fifth Circuit case and finally resolved this issue in 1994. ⁽¹⁵⁶⁾ The Court decisively reiterated the principles laid down in Reporters Committee and said the fact that it was looking at Exemption 6 rather than Exemption 7(C) in this case was "of little import"; the two exemptions differ in the "magnitude of the public interest that is required," not in the "identification of the relevant public interest." ⁽¹⁵⁷⁾ The Court concluded that "because all FOIA requestors have an equal, and equally qualified, right to information, the fact that [FOIA requesters] are seeking to vindicate the policies behind the Labor Statute is irrelevant to the FOIA analysis." ⁽¹⁵⁸⁾ The only relevant public interest under the FOIA remains, as set forth in Reporters Committee, "'the citizens' right to be informed about what their government is up to.'" ⁽¹⁵⁹⁾

On a related question concerning another federal statute -- the Davis-Bacon Act, ⁽¹⁶⁰⁾ which requires that contractors on federal projects pay to their laborers no less than the wages prevailing for comparable work in their geographical area -- the D.C. and Second Circuits were the first post-Reporters Committee courts of appeals to confront this issue, and the Third and Tenth Circuits subsequently addressed it as well. These four courts have firmly held that although there may be a minimal public interest in facilitating the monitoring of compliance with federal labor statutes, disclosure of personal information that reveals nothing "directly about the character of a government agency or official" bears only an "attenuated . . . relationship to governmental activity." ⁽¹⁶¹⁾ Accordingly, it has been held that such an "attenuated public interest in disclosure does not outweigh the construction workers' significant privacy interest in [their names and addresses]." ⁽¹⁶²⁾

Overturning the decisions of two lower courts, ⁽¹⁶³⁾ the Ninth Circuit characteristically took a different approach, but properly reached the same result. ⁽¹⁶⁴⁾ 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 is at issue. ⁽¹⁶⁵⁾

Public oversight of government operations is the essence of public interest under the FOIA, and in the past courts have found that one who claims such a purpose must support his claim by more than mere allegation; he must show that the information in question is "of sufficient importance to warrant such" oversight, ⁽¹⁶⁶⁾ and he had to show how the public interest would be served by disclosure in the particular case. ⁽¹⁶⁷⁾ Most recently, the Supreme Court in Favish found the Ninth Circuit's reliance on mere allegations of government wrongdoing to be simply "insufficient." ⁽¹⁶⁸⁾ The Court pointedly recognized that "allegations of misconduct are 'easy to allege and hard to disprove'" ⁽¹⁶⁹⁾ and that courts therefore must require a "meaningful evidentiary showing" by the FOIA requester. ⁽¹⁷⁰⁾ Therefore, the Court adopted a higher standard for evaluation of "agency wrongdoing" claims and held that "the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred." ⁽¹⁷¹⁾ And in such cases, this higher standard applies above and beyond the "qualifying public interest" standard of Reporters Committee. ⁽¹⁷²⁾ Accordingly, assertions of "public interest" should be scrutinized carefully to ensure that they legitimately warrant the overriding of important privacy interests. ⁽¹⁷³⁾

As stated by the Second Circuit in Hopkins v. HUD, "[t]he simple invocation of a legitimate public interest . . . cannot itself justify the release of personal information. Rather, a court must first ascertain whether that interest would be served by disclosure." ⁽¹⁷⁴⁾ The Second Circuit in Hopkins found a legitimate public interest in monitoring HUD's enforcement of prevailing wage laws generally, but found that disclosure of the names and addresses of workers employed on HUD-assisted public housing projects would shed no light on the agency's performance of that duty in particular. ⁽¹⁷⁵⁾ Even the Ninth Circuit in Minnis v. USDA recognized a valid public interest in questioning the fairness of an agency lottery system that awarded permits to raft down the Rogue River, but found, upon careful analysis, that the release of the names and addresses of the applicants would in no way further that interest. ⁽¹⁷⁶⁾ Similarly, in Heights Community Congress v. VA, ⁽¹⁷⁷⁾ 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." Several courts, moreover, have observed that the minimal amount of information of interest to the public revealed by a single incident or investigation does not shed enough light on an agency's conduct to overcome the subject's privacy interest in his records. ⁽¹⁷⁸⁾

Such holdings properly presaged the Supreme Court's emphasis on the required "nexus between the requested information and the asserted public interest that would be advanced by disclosure" in Favish, ⁽¹⁷⁹⁾ and they are entirely consistent with the Court's determination in Reporters Committee that the "rap sheet" of a defense contractor, if such existed, 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. ⁽¹⁸⁰⁾ The information must clearly reveal official government activities; it is not enough that the information would permit speculative inferences about the conduct of an agency or a government official, ⁽¹⁸¹⁾ 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. ⁽¹⁸²⁾

A very significant development concerning this issue occurred in United States Department of State v. Ray, ⁽¹⁸³⁾ when the Supreme Court recognized a legitimate public interest in whether the State Department was adequately monitoring Haiti's promise not to prosecute Haitians who were returned to their country after failed attempts to enter the United States, but the Court determined that this public interest had been "adequately served" by release of redacted summaries of the agency's interviews with the returnees and that "[t]he addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation." ⁽¹⁸⁴⁾ Although the plaintiff claimed that disclosure of the identities of the unsuccessful emigrants would allow him to reinterview them and elicit further information concerning their treatment, the Court found "nothing in the record to suggest that a second set of interviews with the already-interviewed returnees would produce any relevant information . . . . Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy." ⁽¹⁸⁵⁾

The Supreme Court expressly declined in Ray to decide whether a public interest that stems not from the documents themselves but rather from a "derivative use" to which the documents could be put could ever be weighed in the balancing process against a privacy interest. ⁽¹⁸⁶⁾ Subsequently, however, several lower courts faced the "derivative use" issue and ordered the release of names and home addresses of private individuals in certain contexts despite the fact that the public benefit to be derived from release of the information depended upon the requesters' use of the lists to question those individuals concerning the government's diligence in performing its duties. These courts have found a "derivative use" public interest in 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; ⁽¹⁸⁷⁾ a list of Haitian nationals returned to Haiti, which could be used for follow-up interviews with the Haitians to learn "whether the INS is fulfilling its duties not to turn away Haitians who may have valid claims for political asylum"; ⁽¹⁸⁸⁾ 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; ⁽¹⁸⁹⁾ 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; ⁽¹⁹⁰⁾ 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; ⁽¹⁹¹⁾ and the names and addresses of individuals who received property seized under federal law, which could enable the public to assess the government's exercise of its power to seize and dispose of property. ⁽¹⁹²⁾

However, the District Court for the District of Columbia more recently reached a different result, with more cogent reasoning, in Hertzberg v. Veneman. ⁽¹⁹³⁾ In that case, the plaintiff argued that disclosure of the names and identifying information that were withheld on witness statements would serve the public interest because, he said, it would allow him to contact the witnesses. ⁽¹⁹⁴⁾ The court disagreed with this argument and it stated that "disclosure is not compelled under the FOIA [just] because the link between the request and the potential illumination of agency action is too attenuated. Plaintiff cites no case recognizing a derivative theory of public interest, and this Court does not understand the FOIA to encompass such a concept." ⁽¹⁹⁵⁾ And now the Supreme Court's very recent emphasis in Favish on "the necessary nexus between" the information requested and the "public interest" to be served, at a minimum, calls this "derivative use" notion into even greater question. ⁽¹⁹⁶⁾

Finally, if alternative, less intrusive means are available to obtain information that would serve the public interest, there is less need to require disclosure of information that would cause an invasion of someone's privacy. Accordingly, "[w]hile [this is] certainly not a per se defense to a FOIA request," it is entirely 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." ⁽¹⁹⁷⁾ In Favish, the Supreme Court recognized that the government had thoroughly investigated the suicide of Vincent Foster and that "[i]t would be quite extraordinary to say we must ignore the fact that five different inquiries into the Foster matter reached the same conclusion." ⁽¹⁹⁸⁾ Indeed, if there are alternative sources, the D.C. Circuit has firmly ruled, the public interest in disclosure should be "discounted" accordingly. ⁽¹⁹⁹⁾

Similarly, although courts ordinarily discuss the "public interest" as weighing in favor of disclosure, several courts 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. ⁽²⁰⁰⁾ Most explicitly, the D.C. Circuit, in Fund for Constitutional Government v. National Archives & Records Service, has recognized that the "public interest properly factors into both sides of the balance." ⁽²⁰¹⁾

The Balancing Process

Once both the privacy interest at stake and the public interest in disclosure have been ascertained, the two competing interests must be weighed against one another. ⁽²⁰²⁾ In other words, it must be determined which is the greater result of disclosure: the harm to personal privacy or the benefit to the public. ⁽²⁰³⁾ In balancing these interests, "the 'clearly unwarranted' language of Exemption 6 weights the scales in favor of disclosure," ⁽²⁰⁴⁾ but if the public benefit is weaker than the threat to privacy, the latter will prevail and the information should be withheld. ⁽²⁰⁵⁾ The threat to privacy need not be immediate or direct; ⁽²⁰⁶⁾ it need only outweigh the public interest. ⁽²⁰⁷⁾

Although "the presumption in favor of disclosure is as strong [under Exemption 6] as can be found anywhere in the Act," ⁽²⁰⁸⁾ the courts have most vigorously protected the personal, intimate details of an individual's life -- consistently protecting personal information that, if disclosed, is likely to cause the individual involved personal distress or embarrassment. Courts regularly uphold the nondisclosure of information concerning marital status, legitimacy of children, welfare payments, family fights and reputation, ⁽²⁰⁹⁾ medical condition, ⁽²¹⁰⁾ date of birth, ⁽²¹¹⁾ religious affiliation, ⁽²¹²⁾ citizenship data, ⁽²¹³⁾ genealogical history establishing membership in a Native American Tribe, ⁽²¹⁴⁾ social security numbers, ⁽²¹⁵⁾ criminal history records (commonly referred to as "rap sheets"), ⁽²¹⁶⁾ incarceration of United States citizens in foreign prisons, ⁽²¹⁷⁾ sexual inclinations or associations, ⁽²¹⁸⁾ and financial status. ⁽²¹⁹⁾ 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 co-workers. ⁽²²⁰⁾ Moreover, re-lease of such information "reveals by omission the identities of employees who did not receive high ratings, creating an invasion of their privacy." ⁽²²¹⁾

A subject that has generated extensive litigation and that warrants special discussion is requests for compilations of names and home addresses of individuals. Prior to the Reporters Committee decision, the courts' analyses in "mailing list" cases ordinarily turned on the requester's purpose, or the "use" to which the requested information was intended to be put. ⁽²²²⁾ The Supreme Court in Reporters Committee, however, firmly repudiated any analysis based on the identity, circumstances, or intended purpose of the particular FOIA requester at hand. ⁽²²³⁾ Rather, it said, the analysis must turn on the nature of the document and its relationship to the basic purpose of the FOIA. ⁽²²⁴⁾ Following Reporters Committee, the Court of Appeals for the District of Columbia Circuit found that those cases relying on the stated "beneficial" purpose of the requester were grounded on the now-disapproved proposition that "Exemption 6 carries with it an implicit limitation that the information, once disclosed, [may] be used only by the requesting party and for the public interest purpose upon which the balancing was based." ⁽²²⁵⁾

Because agencies may neither distinguish between requesters nor limit the use to which disclosed information is put, ⁽²²⁶⁾ an analysis of the consequences of disclosure of a mailing list cannot turn on the identity or purpose of the requester. ⁽²²⁷⁾ Thus, it was found to be irrelevant by the Supreme Court in Bibles v. Oregon Natural Desert Ass'n that the requester's purpose was to use the Bureau of Land Management mailing list to send information reflecting another viewpoint to people who had received newsletters reflecting the government's viewpoint. ⁽²²⁸⁾ In NARFE, it was found to be irrelevant that the requester's purpose was to use the list of federal retirees to aid in its lobbying efforts on behalf of those retirees. ⁽²²⁹⁾ Although stopping short of creating a nondisclosure category encompassing all mailing lists, the D.C. Circuit in NARFE did hold that mailing lists consisting of names and home addresses of federal annuitants are categorically withholdable under Exemption 6. ⁽²³⁰⁾ (See discussion of "derivative use" theory under Exemption 6, Factoring in the Public Interest, above.)

Although the Supreme Court twice has specifically considered the issue and, without dissent, held that compilations of names and home addresses of United States residents are protectible under Exemption 6, ⁽²³¹⁾ several lower courts nonetheless subsequently have ordered the disclosure of such lists. Some of these courts have found little or no privacy interest in the names and addresses. ⁽²³²⁾ 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 the agency conducted some aspect of its business. ⁽²³³⁾ One court, in a particularly unusual decision, ordered disclosure of the names and cities of residence of individuals granted permits to use Forest Service lands to "aid in determining whether improper influence is used to obtain permits or whether permits are being granted to those with a past history of environmental abuses," but affirmed the withholding of street addresses because there was "no showing that knowledge of the street addresses will provide additional insight into agency activities that would not be revealed with disclosure of names and cities of residence alone." ⁽²³⁴⁾

In another unusual decision, the D.C. Circuit remanded a case to the district court to determine whether some of the names of individual depositors with unclaimed funds at banks for which the FDIC is now the receiver should be released to a professional money finder. ⁽²³⁵⁾ 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." ⁽²³⁶⁾ As guidance to the lower court charged with applying this novel approach, 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." ⁽²³⁷⁾ It is unclear, however, whether this highly unconventional privacy balancing analysis can be squared with the subsequent analysis of personal privacy protection that was adopted by the Supreme Court in Favish. ⁽²³⁸⁾

Other courts, more in line with the teachings of the Supreme Court, have protected compilations of names and addresses. For example, when the request clearly is for the purpose of soliciting business or for other commercial purposes, most courts readily have found mailing lists to be protectible. ⁽²³⁹⁾ Even when there is no apparent commercial interest at stake, other courts have found the possible public interest too attenuated to overcome the clear privacy interest an individual has in his name and home address. ⁽²⁴⁰⁾ Yet other courts have protected mailing lists, emphasizing the increased privacy interest inherent in a list that reveals sensitive information beyond the mere names and addresses of the individuals found on the list. ⁽²⁴¹⁾ And when a requester seeks the address of a named individual for a purely private purpose, courts have found the privacy interest to be at its zenith and the public interest to be at its nadir. ⁽²⁴²⁾

Another area that merits particular discussion is the applicability of Exemption 6 to requests for information about civilian and military federal employees. Generally, civilian employees' names, present and past position titles, grades, salaries, and duty stations are releasable as no viable privacy interest exists in such data. ⁽²⁴³⁾ The Department of Justice recommends the release of additional items, particularly those relating to professional qualifications for federal employment. ⁽²⁴⁴⁾ By regulation, the Department of the Army discloses the name, rank, date of rank, gross salary, duty assignments, office telephone number, source of commission, promotion sequence number, awards and decorations, educational level, and duty status of most of its military personnel and the name, past and present position titles, grades, salaries, and duty stations of its civilian employees. ⁽²⁴⁵⁾ Historically, the entire Department of Defense disclosed the same information and other nonsensitive data concerning most of its servicemembers and civilian employees. ⁽²⁴⁶⁾

By statutory enactment as well as by regulation, certain military personnel throughout the Department of Defense are properly afforded greater privacy protection than other servicemembers and nonmilitary employees. ⁽²⁴⁷⁾ Even prior to enactment of such special statutory protection, courts had found that because of the threat of terrorism, military servicemembers stationed outside the United States have a greater expectation of privacy. ⁽²⁴⁸⁾ Courts have, however, ordered the release of names of military personnel stationed in the United States. ⁽²⁴⁹⁾ In light of recent terrorist activities within the United States and the resulting heightened security awareness nationwide, however, the Department of Defense now withholds personally identifying information concerning its military and civilian personnel stationed within the United States whenever release would "raise security or privacy concerns." ⁽²⁵⁰⁾ Additionally, certain other federal employees such as law enforcement personnel and Internal Revenue Service employees possess, by virtue of the nature of their work, protectible privacy interests in their identities and work addresses. ⁽²⁵¹⁾ (See the further discussions of these issues under Exemption 2, "Low 2": Trivial Matters, above, and Exemption 7(C), below.)

Purely personal details pertaining to government employees are protectible under Exemption 6. ⁽²⁵²⁾ 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. ⁽²⁵³⁾ In addition, the identities of persons who apply but are not selected for federal government employment may be protected. ⁽²⁵⁴⁾ Even suggestions submitted to an Employee Suggestion Program may be withheld to protect employees with whom the suggestions are identifiable from the embarrassment that might occur from disclosure. ⁽²⁵⁵⁾

Similarly, the courts customarily have extended protection to the identities of mid- and low-level federal employees accused of misconduct, as well as to the details and results of any internal investigations into such allegations of impropriety. ⁽²⁵⁶⁾ The D.C. Circuit has reaffirmed this position in Dunkelberger v. Department of Justice. ⁽²⁵⁷⁾ It made very clear in Dunkelberger that, even post-Reporters Committee, the D.C. Circuit's decision in Stern v. FBI remains solid 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. ⁽²⁵⁸⁾

During the 1980s, a peculiar line of cases began to develop within the D.C. Circuit regarding the professional or business conduct of an individual. Specifically, the courts began to require the disclosure of information concerning an individual's business dealings with the federal government; indeed, even embarrassing information, if related to an individual's professional life, was subject to disclosure. ⁽²⁵⁹⁾ Similarly, the Court of Appeals for the Sixth Circuit suggested that the disclosure of a document prepared by a government employee during the course of his employment "will not constitute a clearly unwarranted invasion of personal privacy simply because it would invite a negative reaction or cause embarrassment in the sense that a position is thought by others to be wrong or inadequate." ⁽²⁶⁰⁾

In five later cases, however, the D.C. Circuit reached firm nondisclosure decisions, with no discussion of this consideration at all. ⁽²⁶¹⁾ Then it clarified that any such lack of privacy an individual has in his business dealings applies only to purely "'business judgments and relationships.'" ⁽²⁶²⁾ Indeed, an individual has a very strong interest in allegations of wrongdoing or in the fact that he or she was a target of a law enforcement investigation, even when the alleged wrongdoing occurred in the course of the individual's professional activities. ⁽²⁶³⁾ Moreover, under Reporters Committee, an individual doing business with the federal government certainly may have some protectible privacy interest, and such dealings with the government do not alone necessarily implicate a public interest that furthers the purpose of the FOIA. ⁽²⁶⁴⁾

In applying Exemption 6, it must be remembered that all reasonably segregable, nonexempt portions of requested records must be released. ⁽²⁶⁵⁾ (See the discussions of this issue under Procedural Requirements, "Reasonably Segregable" Obligation, above, and Litigation Considerations, "Reasonably Segregable" Requirements, below.) 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. ⁽²⁶⁶⁾ Likewise, circuit courts of appeals have upheld the nondisclosure of the names and identifying information of employee-witnesses when disclosure would link each witness to a particular previously disclosed statement, ⁽²⁶⁷⁾ have ordered the disclosure of computerized lists of numbers and types of drugs routinely ordered by the congressional pharmacy after deletion of any item identifiable to a specific individual, ⁽²⁶⁸⁾ and have ordered the disclosure of documents concerning disciplined IRS employees, provided that all names and other identifying information were deleted. ⁽²⁶⁹⁾

Nevertheless, in some situations the deletion of personal identifying information may not be adequate to provide necessary privacy protection. It is significant in this regard that in Department of the Air Force v. Rose, the Supreme Court specifically admonished that if it were determined on remand that the deletions of personal references were not sufficient to safeguard privacy, then the summaries of disciplinary hearings should not be released. ⁽²⁷⁰⁾

Despite the admonition of the Supreme Court in Rose, though, a few isolated courts later permitted redaction only of information that directly identified the individuals to whom it pertains. In ordering the disclosure of information pertaining to air traffic controllers who were reinstated in their jobs shortly after their 1982 strike, the Sixth Circuit, in Norwood v. FAA, held that only items that "by themselves" would identify the individual -- names, present and pre-removal locations, and social security numbers -- could be withheld. ⁽²⁷¹⁾ It later modified its opinion to state that, although there might be instances in which an agency could justify the withholding of "information other than 'those items which "by themselves" would identify the individuals,'" the FAA in this case had "made no such particularized effort, relying generally on the claim that 'fragments of information' might be able to be pieced together into an identifiable set of circumstances." ⁽²⁷²⁾

Similarly, the District Court for the Northern District of California ordered the disclosure of application packages for candidates for an Air Force graduate degree program with the redaction of only the applicants' names, addresses, and social security numbers. ⁽²⁷³⁾ Although the packets regularly contained detailed descriptions of the applicants' education, careers, projects, and achievements, the court concluded that it could not "discern how there is anything more than a 'mere possibility' that [the requester] or others will be able to discern to which particular applicant each redacted application corresponds." ⁽²⁷⁴⁾ And more recently, the District Court for the Southern District of Ohio found "much too speculative" the Air Force's argument that disclosure of medical malpractice settlement figures could permit researchers to "comb local news articles, possibly discovering the identity of claimants and interfering with their privacy rights." ⁽²⁷⁵⁾ That court concluded that "[t]he mere possibility that factual information might be pieced together to supply the 'missing link,' and lead to personal identification, does not exempt such information from disclosure" under Exemption 6. ⁽²⁷⁶⁾ The same court, in a different case brought by the same FOIA requester, even went so far as to rule that the government cannot rely on the sophistication of modern online search engines as a justification to withhold information under Exemption 6. ⁽²⁷⁷⁾ This not only flies in the face of Rose, it defies the Supreme Court's commonsense recognition of the power of "computer[ization]" as itself a powerful privacy-protection factor in Reporters Committee. ⁽²⁷⁸⁾

Indeed the overwhelming majority of courts take a much broader view of the redaction process. For example, to protect those persons who were the subjects of disciplinary actions that were later dismissed, the D.C. Circuit has upheld the nondisclosure of public information contained in such disciplinary files when the redaction of personal information would not be adequate to protect the privacy of the subjects because the requester could easily obtain and compare unredacted copies of the documents from public sources. ⁽²⁷⁹⁾ 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. ⁽²⁸⁰⁾ Likewise, when the information is "unique and specific" to the subjects of a record, "individual identities may become apparent from the specific details set forth in [the] documents," so that "deletion of personal identifying information . . . may not be adequate to provide the necessary privacy protection." ⁽²⁸¹⁾ 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." ⁽²⁸²⁾ Of course, when a FOIA request is by its very terms limited to privacy-sensitive information pertaining to an identified or identifiable individual, redaction is not possible. ⁽²⁸³⁾

When a request is focused on records concerning an identifiable individual and the records are of a particularly sensitive nature, it may be necessary to go a step further than withholding in full without segregation: It may be necessary to follow special "Glomarization" procedures to protect the "targeted" individual's privacy. (See the discussion of the use and origin of the "Glomar" response under Exemption 1, In Camera Submissions, above.) If a request is formulated in such a way that even acknowledgment of the existence of responsive records would cause harm, then the subject's privacy can be protected only by refusing to confirm or deny that responsive records exist. This special procedure is a widely accepted method of protecting, for example, even the mere mention of a person in law enforcement records. ⁽²⁸⁴⁾ (For a more detailed explanation of such privacy "Glomarization," see the discussion under Exemption 7(C), below.)

This procedure is equally applicable to protect an individual's privacy interest in sensitive non-law enforcement records. ⁽²⁸⁵⁾ For example, many agencies maintain an employee assistance program for their employees, operating it on a confidential basis in which privacy is assured. An agency would release neither a list of the employees who participate in such a program nor any other information concerning the program without redacting the names of participants. Logically, then, in responding to a request for any employee assistance counseling records pertaining to a named employee, the agency could protect the privacy of that individual only by refusing to confirm or deny the existence of responsive records. ⁽²⁸⁶⁾

Similarly, the "Glomarization" approach would be appropriate in responding to a request targeting such matters as a particular citizen's welfare records or the disciplinary records of an employee accused of relatively minor misconduct. ⁽²⁸⁷⁾ Generally, this approach is proper whenever mere acknowledgment of the existence of records would be tantamount to disclosing an actual record the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." ⁽²⁸⁸⁾ It must be remembered, however, that this response is effective only so long as it is given consistently for a distinct category of requests. ⁽²⁸⁹⁾ If it were to become known that an agency gave a "Glomar" response only when records do exist and gave a "no records" response otherwise, then the purpose of this special approach would be defeated. ⁽²⁹⁰⁾

1. 5 U.S.C. § 552(b)(6) (2000).

2. See Attorney General's Memorandum for Heads of All Federal Departments and Agencies Regarding the Freedom of Information Act (Oct. 12, 2001), reprinted in FOIA Post (posted 10/15/01) (placing particular emphasis on the importance of "preserving personal privacy" among the other interests that are protected by the FOIA's exemptions).

3. See H.R. Rep. No. 93-1380, at 13 (1974); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989) (citing United States Dep't of Justice v. Julian, 486 U.S. 1, 13-14 (1988)); see also FOIA Update, Vol. X, No. 2, at 5 (advising that, as a matter of sound administrative practice, "[a]n agency will not invoke an exemption to protect a requester from himself").

4. 5 U.S.C. § 552(b)(6).

5. 627 F.2d 392, 400 (D.C. Cir. 1980).

6. 456 U.S. 595 (1982).

7. 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)).

8. Id. at 601 (citing H.R. Rep. No. 89-1497, at 11 (1966)).

9. Id. at 602; see, e.g., 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"), reh'g denied, No. 03-1689 (7th Cir. Feb. 11, 2004), petition for cert. filed, No. 03-1468 (U.S. Apr. 22, 2004); Sherman v. United States Dep't of the Army, 244 F.3d 357, 361 (5th Cir. 2001) (recognizing that the "Supreme Court has interpreted exemption 6 'files' broadly to include any 'information which applies to a particular individual'" (quoting id.)); Strout v. United States Parole Comm'n, 40 F.3d 136, 139 (6th Cir. 1994) (protecting names and addresses of persons opposing parole of individual, without explicit discussion of threshold requirement); Hecht v. United States Agency for Int'l Dev., 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."). But see City of Chicago v. United States Dep't of the Treasury, 287 F.3d 628, 635 (7th Cir. 2002) (agreeing with mistaken district court that personal information about firearms purchasers and possessors "is not 'information analogous to the type of sensitive information generally kept in a personnel or medical file, as would be protected by Exemption (6)'"), vacated, 537 U.S. 1229 (2003) (taking exceptional vacatur action as explained in FOIA Post, "Supreme Court Vacates and Remands in ATF Database Case" (posted 3/25/03)); Wood v. FBI, No. 3:02cv2058, 2004 U.S. Dist. LEXIS 5525, at **48-49 (D. Conn. Mar. 31, 2004) (misapplying Washington Post to rule that names of agency officials involved in decisionmaking process for personnel action do not qualify for Exemption 6 protection); Darby v. United States Dep't of the Air Force, No. 00-0661, slip op. at 10-11 (D. Nev. Mar. 1, 2002) (rejecting redaction of names in IG report on mistaken basis that such documents "are not 'personnel or medical files[,]' nor are they 'similar' to such files"), aff'd on other grounds sub nom. Darby v. DOD, 74 Fed. Appx. 813 (9th Cir. 2003); Providence Journal Co. v. United States Dep't of the Army, 781 F. Supp. 878, 883 (D.R.I. 1991) (finding investigative report of criminal charges not to be "similar file," on unsound basis that it was "created in response to specific criminal allegations" rather than as "regularly compiled administrative record"), modified & aff'd on other grounds, 981 F.2d 552 (1st Cir. 1992); see also Judicial Watch, Inc. v. United States, 84 Fed. Appx. 335, 340-41 (4th Cir. 2004) (contending wrongly that IRS employee names do not meet Exemption 6 threshold) (Luttig, J., dissenting), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389).

10. See, e.g., Arieff v. United States Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (finding no protection under Exemption 6 for list of drugs ordered for use by some members of large group); 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); see also FOIA Update, Vol. III, No. 4, at 1 (explaining that the Washington Post decision "revitalized the commonsense, practical approach of giving privacy considerations their full weight in the delicate balancing process"). But see Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 14 (D.D.C. 1990) (opining narrowly 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").

11. N.Y. Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); see 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 pending); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003) (finding that video tapes "contain identifiable audio and video images of individual residents," and concluding that they are "similar files").

12. 920 F.2d at 1005.

13. Id. at 1007-08.

14. 5 U.S.C. § 552(b)(6).

15. See Rose, 425 U.S. at 372; Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981).

16. See Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984); Trentadue v. President's Council on Integrity & Efficiency, 2:03-CV-339, slip op. at 4 (D. Utah Apr. 26, 2004) (stating that agency made no showing of a 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).

17. See Ripskis, 746 F.2d at 3; NARA v. Favish, 124 S. Ct. 1570, 1580 (2004) ("The term 'unwarranted' requires us to balance the family's privacy interest against the public interest in disclosure.") (Exemption 7(C)), reh'g denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004).

18. Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989); see also Int'l Bhd. of Elec. Workers Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (perceiving no public interest in disclosure of employees' social security numbers).

19. See FOIA Update, Vol. X, No. 2, at 7 ("FOIA Counselor: Exemption 6 and Exemption 7(C): Step-by-Step Decisionmaking") (outlining mechanics of balancing process).

20. 489 U.S. 749 (1989); see also FOIA Update, Vol. X, No. 2, at 3-6 ("OIP Guidance: Privacy Protection Under the Supreme Court's Reporters Committee Decision").

21. 489 U.S. at 757.

22. Id. at 762, 780.

23. Id. at 764.

24. Id. at 771; see also Favish v. NARA, 124 S. Ct. 1570, 1579-80 (2004) (reiterating that "[a]s a general rule, the withholding of information under FOIA cannot be predicated on the identity of the requester," but adding that this of course does not mean that a requester seeking to establish an overriding "public interest" in disclosure "need not offer a reason for requesting the information") (Exemption 7(C)), reh'g denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004).

25. 489 U.S. at 771.

26. Id. at 772; see also Favish, 124 S. Ct. at 1582 (discussing "the nexus required between the requested documents and the purported public interest served by disclosure"); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (elaborating on "nexus requirement").

27. 489 U.S. at 774.

28. Id. at 775.

29. Id. at 773; see also O'Kane v. United States Customs Serv., 169 F.3d 1308, 1310 (11th Cir. 1999) (per curiam) (affirming that Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, do not "overrule" Reporters Committee definition of "public interest"); cf. Favish, 124 S. Ct. at 1580 (reiterating the Reporters Committee "public interest" standard, and characterizing it as "a structural necessity in a real democracy" that "should not be dismissed" -- despite persistent arguments by amici in the case that Reporters Committee had been "overruled" by the Electronic FOIA amendments since 1996).

30. 489 U.S. at 776-80 & n.22; see also Favish, 124 S. Ct. at 1581 (stressing need for "stability" in privacy balancing, lest balancing be too "ad hoc").

31. 489 U.S. at 780; see, e.g., Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991) ("Exemption 6 protects 'Excelsior' lists [names and addresses of employees eligible to vote in union representation elections] as a category."); SafeCard Servs. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991) (holding "categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure"); Johnson v. Comm'r, 239 F. Supp. 2d 1125, 1137 (W.D. Wash. 2002) (allowing categorical withholding of any identifying information about third parties and witnesses, as well as any information that they provided to IRS), aff'd on other grounds, 68 Fed. Appx. 839 (9th Cir. 2003) (Exemption 7(C)); Grove v. Dep't of Justice, 802 F. Supp. 506, 511 (D.D.C. 1992) (Categorical balancing is appropriate for "information concerning criminal investigations of private citizens.") (Exemption 7(C)). But see Armstrong v. Executive Office of the President, 97 F.3d 575, 581-82 (D.C. Cir. 1996) (finding that agency had not adequately established basis for categorical rule for withholding identities of low-level FBI agents); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 893-96 (D.C. Cir. 1995) (rejecting categorical issuance of "Glomar" response in case involving request for information concerning presidential candidate H. Ross Perot's offer "to help a federal agency fulfill its statutory duties to interdict drugs") (Exemption 7(C)); Konigsberg v. FBI, No. 02-2428, slip op. at 6 (D.D.C. May 27, 2003) (rejecting categorical withholding for records based on insufficient "eviden[tiary]" support); see also FOIA Update, Vol. XVII, No. 2, at 3-4 ("OIP Guidance: The Bifurcation Requirement for Privacy 'Glomarization'") (discussing need to bifurcate requests that ask for more than law enforcement records on a third party -- i.e., employing "Glomar" response for law enforcement records and treating non-law enforcement records under Exemption 6 in ordinary fashion).

32. See FOIA Update, Vol. X, No. 2, at 7.

33. See Schell v. HHS, 843 F.2d 933, 938 (6th Cir. 1988); Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir. 1984).

34. 489 U.S. 749, 763 (1989).

35. 124 S. Ct. 1570, 1576-77, 1579 (2004) ("[T]he concept of personal privacy . . . is not some limited or 'cramped notion' of that idea.") (Exemption 7(C)), reh'g denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004); 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).

36. Id. at 767; 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.

37. See United States Dep't of State v. Wash. Post Co., 456 U.S. 595, 600 (1982); Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989).

38. Pub. Citizen Health Research Group v. United States 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).

39. 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."); Carter v. United States 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. United States 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 physician (quoting Rose, 425 U.S. at 380 n.19)).

40. See, e.g., S. Utah Wilderness Alliance, Inc. v. Hodel, 680 F. Supp. 37, 39 (D.D.C. 1988), vacated as moot, No. 88-5142 (D.C. Cir. Nov. 15, 1988).

41. 712 F.2d at 1468.

42. 879 F.2d at 878; see also 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 C 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).

43. 124 S. Ct. at 1577.

44. Id.

45. Id. at 1578.

46. Id. at 1581 ("It must be remembered that once there is disclosure, the information belongs to the general public."); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (emphasizing that agencies must consider full range of potential privacy invasions).

47. NARFE, 879 F.2d at 878; see, e.g., Favish v. Office of Indep. Counsel, 217 F.3d 1168, 1173 (9th Cir. 2000) (declaring that "it is not 'the production' of the records that would cause the harms, . . . but their exploitation by the media," a "probable consequence[] of the release" that is encompassed by "the statutory reference to what may 'reasonably be expected'"), rev'd on other grounds sub nom. NARA v. Favish, 124 S. Ct. 1570, 1578-79 (2004) (specifically taking into account "the consequences" of FOIA disclosure, including "public exploitation" of the records by either the requester or others), reh'g denied, No. 02-409, 2004 WL 108633 (U.S. May 17, 2004); Hougan & Denton v. United States Dep't of Justice, No. 90-1312, slip op. at 3 (D.D.C. July 3, 1991) (concluding that solicitation by employers would invade privacy of participants in union's training program). But see United States 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, a position subsequently rejected sub silento by a unanimous Supreme Court in Favish); Dayton Newspapers, Inc. v. VA, 257 F. Supp. 2d 988, 1001-05 (S.D. Ohio 2003) (rejecting argument based upon agency's concern that names of judges and attorneys could be used to search through databases to identify claimants and thereby invade privacy of claimants).

48. Hudson v. Dep't of the Army, No. 86-1114, 1987 WL 46755, at *3 (D.D.C. Jan. 29, 1987) (protecting personal information on basis that disclosure could ultimately lead to physical harm), aff'd, 926 F.2d 1215 (D.C. Cir. 1991) (unpublished table decision); see also, e.g., Hemenway v. Hughes, 601 F. Supp. 1002, 1006-07 (D.D.C. 1985) (same).

49. See, e.g., City of Chicago v. United States Dep't of Treasury, 287 F.3d 628, 636 (7th Cir. 2002) (declaring, in a harsh view, that "[f]irearms manufacturers, dealers and purchasers are on notice that records of their transactions are not confidential"), vacated, 537 U.S. 1229 (2003) (taking exceptional vacatur action as explained in FOIA Post, "Supreme Court Vacates and Remands in ATF Database Case" (posted 3/25/03)); 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); see also Memorandum for the President's Management Council 1 (Mar. 1, 2004) (providing guidance for federal agencies in implementing "E-Government initiative" and attaching NARA template for "Addresses" section of regulatory preambles that includes new policy that "[a]ll comments received will be posted without change . . . including any personal information provided"), available at http://www.whitehouse.gov/omb/ inforeg/memo_pmc_egov.pdf.

50. See 5 C.F.R. § 293.311 (2004) (OPM regulation specifying that certain information contained in federal employee personnel files is available to public); see also FLRA v. United States 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. United States Postal Serv., 730 F.2d 946, 948 (4th Cir. 1984) (finding no substantial invasion of privacy in information identifying successful federal job applicants); 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); see also FOIA Update, Vol. III, No. 4, at 3 (discussing extent to which privacy of federal employees can be protected).

51. See Barvick v. Cisneros, 941 F. Supp. 1015, 1020 n.4 (D. Kan. 1996) (noting that the agency had "released information pertaining to the successful candidates' educational and professional qualifications, including letters of commendation and awards, as well as their prior work history, including federal positions, grades, salaries, and duty stations").

52. See Department of Defense Freedom of Information Act Program Regulation, DOD 5400.7-R, 37-39 (Sept. 1998); see also Memorandum from Department of Defense Directorate for Freedom of Information and Security Review 1 (Oct. 26, 1999) (applying same analysis as in DOD 5400.7-R to electronic mail addresses, and authorizing withholding only for "personnel assigned to units that are sensitive, routinely deployable or stationed in foreign territories"); cf. 10 U.S.C. § 130b (2000) (Department of Defense-wide provision); Department of Defense Freedom of Information Act Program Regulations, 32 C.F.R. § 286.12(f)(2)(ii) (2003) ("Names and duty addresses (postal and/or e-mail) . . . for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under [Exemption 6].").

53. See Army Reg. 340-21, ¶ 3-3a(1), b(1), 5 July 1985; see also Army Reg. 25-55, ¶ 3-200, No. 6(b), 1 Nov. 1997 (providing for withholding of names and duty addresses of military personnel assigned to units that are "sensitive, routinely deployable or stationed in foreign territories").

54. Department of Defense Director for Administration and Management Memorandum 1-2 (Nov. 9, 2001), available at www.defenselink.mil/pubs/foi/withhold.pdf (noting that certain personnel's names can be released due to "the nature of their positions and duties," including public affairs officers and flag officers).

55. See, e.g., 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); Detroit Free Press, Inc. v. Dep't of Justice, 73 F.3d 93, 96-97 (6th Cir. 1996) (finding -- in singular decision not followed elsewhere and now called into question by Supreme Court's decision in Favish, 124 S. Ct. at 1578-79 -- 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)); Billington v. United States Dep't of Justice, 245 F. Supp. 2d 79, 85-86 (D.D.C. 2003) (finding that information about two persons contained in a reporter's notes given to the State Department was not protected by Exemption 6, because these persons "knew that they were speaking to a reporter on the record and therefore could not expect to keep private the substance of the interview"); Blanton v. United States Dep't of Justice, 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."); Nat'l W. Life Ins., 512 F. Supp. at 461 (noting that names and duty stations of most federal employees are routinely published and available through Government Printing Office); cf. Doe v. FBI, 218 F.R.D. 256, 259-60 (D. Colo. 2003) (refusing to allow plaintiff to proceed with a case under a pseudonym or under seal, on the basis that his particular reputational interest does not "outweigh the public's interest in an open court system"). But see Times Picayune Publ'g Corp. v. United States Dep't of Justice, 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 shot is more than just another photograph of a person") (Exemption 7(C)); cf. Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124-25 (7th Cir. 2003) (explaining that posting complaint advisory on Web site that warned consumers that "information provided may be subject to release under the FOIA" does not waive the privacy interests of consumer complainants) (emphasis added), reh'g denied, 03-1689 (7th Cir.), petition for cert. filed, No. 03-1468 (U.S. Apr. 22, 2004).

56. See Nation Magazine v. United States Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995) (finding no privacy interest in documents concerning presidential candidate H. Ross Perot's offer to aid federal government in drug interdiction, a subject about which Perot had made several public statements); see also Kimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C. Cir 1998) (noting that government lawyer investigated by Department of Justice'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)).

57. Reporters Comm., 489 U.S. at 780; see also Wash. Post, 456 U.S. at 603 n.5; Fiduccia v. United States Dep't of Justice, 185 F.3d 1035, 1046-47 (9th Cir. 1999) (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) (noting that there may be privacy interest in personal information even if "available on publicly recorded filings"); Dayton Newspapers, Inc., 257 F. Supp. 2d at 1010 (reasoning that although modern search engines might make even otherwise obscure personal information more widely available, that "does not mean that [individuals] have lost all traits of privacy" in that information); Linn v. United States Dep't of Justice, 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").

58. See Isley v. Executive Office for United States Attorneys, 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)); 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 pending); Mueller v. United States 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)); Chin v. United States Dep't of the Air Force, No. 97-2176, slip op. at 5 (W.D. La. June 24, 1999) (concluding that although "some of the events are known to certain members of the public . . . this fact is insufficient to place this record for dissemination into the public domain"), aff'd per curiam, No. 99-31237 (5th Cir. June 15, 2000); cf. Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996) (treating requester's personal knowledge as irrelevant in assessing privacy interests).

59. 124 S. Ct. at 1580; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (advising that "the Favish decision illustrates that the occurrence of an event in a public place is no disqualifying factor for privacy protection under the FOIA").

60. Baltimore Sun Co. v. United States Customs Serv., No. 97-1991, slip op. at 5 (D. Md. Nov. 21, 1997) (Exemption 7(C)).

61. See FOIA Update, Vol. VI, No. 1, at 6; see also Holland v. CIA, No. 91-1233, 1992 WL 233829, at **15-16 (D.D.C. Aug. 31, 1992) (holding that researcher who sought assistance of presidential advisor in obtaining CIA files he had requested is comparable to FOIA requester whose identity is not protected by Exemption 6); Martinez v. FBI, No. 82-1547, slip op. at 7 (D.D.C. Dec. 19, 1985) (denying protection for identities of news reporters seeking information concerning criminal investigation) (Exemption 7(C)).

62. See FOIA Update, Vol. VI, No. 1, at 6.

63. 5 U.S.C. § 552a (2000).

64. See FOIA Update, Vol. VI, No. 1, at 6.

65. See, e.g., Lakin Law Firm, 352 F.3d at 1125 (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. United States 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); Save Our Springs Alliance v. Babbitt, No. A-97-CA-259, slip op. at 7-8 (W.D. Tex. Nov. 19, 1997) (concluding that release of home addresses and telephone numbers of government correspondents would not shed light on whether agency improperly considered writers' comments); 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); Wilson v. Dep't of Justice, No. 87-2415, 1991 WL 111457, at *6 (D.D.C. June 14, 1991) (protecting identity of individual who wrote to Senator about matter of public interest); Holy Spirit Ass'n v. United States Dep't of State, 526 F. Supp. 1022, 1032-34 (S.D.N.Y. 1981) (finding that "strong public interest in encouraging citizens to communicate their concerns regarding their communities" is fostered by protecting identities of writers); see also Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (concurring with the nondisclosure of correspondence because communications from citizens to their government "will frequently contain information of an intensely personal sort") (MacKinnon, J., concurring) (Exemptions 6 and 7(C)); cf. Ortiz v. HHS, 874 F. Supp. 570, 573-75 (S.D.N.Y.) (protecting letter to HHS alleging social security fraud) (Exemptions 7(C) and 7(D)), aff'd on Exemption 7(D) grounds, 70 F.3d 729 (2d Cir. 1995). But see Memorandum for the President's Management Council 1 (Mar. 1, 2004) (providing guidance for federal agencies in implementing "E-Government initiative," and attaching NARA template for "Addresses" section of new regulatory preambles that includes new policy that "[a]ll comments received will be posted without change . . . including any personal information provided"), available at www.whitehouse.gov/omb/inforeg/memo_pmc_egov.pdf.

66. Judicial Watch, Inc. v. United States, 84 Fed. Appx. 335, 337 (4th Cir. 2004), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389) (Exemption 7(C)).

67. Judicial Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 28 (D.D.C. 2003) (Exemption 7(C)).

68. See 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. United States Dep't of Justice, 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), reconsideration denied temporarily pending in camera review, No. 97-CV-2869 (D.D.C. Aug. 17, 2000); Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999) (concluding that the agency "made it abundantly clear in its notice that the individuals submitting comments to its rulemaking would not have their identities concealed" when the rulemaking notice "specified that '[t]he complete file for this proposed rule is available for inspection'"); 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).

69. See, e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); Nat'l Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976); Ivanhoe Citrus Ass'n v. Handley, 612 F. Supp. 1560, 1567 (D.D.C. 1985); see also Iowa Citizens for Cmty. Improvement v. USDA, No. 4-02-CV-10114, 2002 WL 32078275, at *5 n.10 (S.D. Iowa Aug. 13, 2002) (noting in dicta 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").

70. Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978), rev'd on other grounds, 602 F.2d 1010 (1st Cir. 1979); 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.

71. See, e.g., Or. Natural Desert Ass'n v. United States 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); Wash. Post Co. v. USDA, 943 F. Supp. 31, 34-36 (D.D.C. Oct. 18, 1996) (finding that farmers who received subsidies under cotton price support program have only minimal privacy interests in home addresses from which they also operate businesses), appeal dismissed voluntarily, No. 96-5373 (D.C. Cir. May 19, 1997); Ackerson & Bishop Chartered v. USDA, No. 92-1068, slip op. at 1 (D.D.C. July 15, 1992) (concluding that commercial mushroom growers operating under individual names have no expectation of privacy); 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"). But see Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1187-89 (8th Cir. 2000) (protecting identities of pork producers who signed petition calling for abolishment of mandatory contributions to fund for marketing and advertising pork, because release would reveal position on referendum and "would vitiate petitioners' privacy interest in secret ballot") (reverse FOIA suit); Forest Guardians v. United States 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), appeal dismissed voluntarily, No. 01-2296 (10th Cir. Nov. 21, 2001); 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).

72. 230 F. Supp. 2d 739, 748-51 (W.D. Tex. 2002) (appeal pending).

73. 124 S. Ct. at 1579; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (highlighting full implications of Supreme Court's decision).

74. 124 S. Ct. at 1574.

75. Id. at 1574-76; see FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented 10/10/03) (chronicling case's history).

76. 124 S. Ct. at 1576.

77. Id.

78. Id. at 1576-77.

79. Id. at 1578.

80. Id.

81. Id. at 1579 (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)); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (noting that Supreme Court "dr[ew] additional support from two successive Attorney General memoranda on FOIA that specifically extended privacy protection to 'family members'").

82. See, e.g., Hale v. United States Dep't of Justice, 973 F.2d 894, 902 (10th Cir. 1992) (perceiving "no public interest in photographs of the deceased victim, let alone one that would outweigh the personal privacy interests of the victim's family") (Exemption 7(C)), cert. granted, vacated & remanded on other grounds, 509 U.S. 918 (1993); Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (affirming nondisclosure of autopsy reports of individuals killed by cyanide-contaminated products); Badhwar v. United States 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. Executive Office for United States Attorneys, No. 96-0123, slip op. at 3-4 (D.D.C. Feb. 25, 1998) (approving the withholding of "medical records, autopsy reports and inmate injury reports pertaining to a murder victim as a way of protecting surviving family members"), aff'd on other grounds, 203 F.3d 52 (D.C. Cir. 1999) (unpublished table decision); Katz v. NARA, 862 F. Supp. 476, 483-86 (D.D.C. 1994) (holding that Kennedy family's privacy interests would be invaded by disclosure of "graphic and explicit" JFK autopsy photographs), aff'd on other grounds, 68 F.3d 1438 (D.C. Cir. 1995); N.Y. Times Co. v. NASA, 782 F. Supp. 628, 631-32 (D.D.C. 1991) (withholding audiotape of voices of Space Shuttle Challenger astronauts recorded immediately before their deaths, to protect family members from pain of hearing final words of loved ones). But see Outlaw v. United States 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); Journal-Gazette Co. v. United States 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," not "graphic, morbid descriptions," survivors' minimal privacy interest was outweighed by public interest); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (cautioning that "agencies applying this important principle must be mindful that it logically requires reasonable certainty that a survivor actually exists to merit such protection"); cf. Kyle v. United States, No. 80-1038E, 1987 WL 13874, at **1-2 (W.D.N.Y. July 16, 1987) (ordering disclosure of medical records of all servicemen involved in accident alike, including two who died and one who was still alive); Rabbitt v. Dep't of the Air Force, 401 F. Supp. 1206, 1210 (S.D.N.Y. 1974) (ordering disclosure of medical records of two Air Force personnel involved in accident alike, including one who died and one who was still alive).

83. 124 S. Ct. at 1580 (quoting N.Y. Times Co., 782 F. Supp. at 631-32); see also 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); FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (discussing protection of records of Dr. Martin Luther King, Jr. assassination investigation); FOIA Update, Vol. III, No. 4, at 5 (advising more than two decades ago that while privacy rights cannot be inherited, sensitive personal information pertaining to deceased persons may threaten privacy interests of surviving family members).

84. 124 S. Ct. at 1577; see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (advising that "the Court's 'survivor privacy' analysis in Favish eschewed" any such decedent-based approach).

85. 124 S. Ct. at 1577.

86. Id.

87. See, e.g., Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1413 (D. Haw. 1995) (reverse FOIA suit); Tigar & Buffone v. United States Dep't of Justice, No. 80-2382, slip op. at 9-10 (D.D.C. Sept. 30, 1983) (Exemption 7(C)); Diamond v. FBI, 532 F. Supp. 216, 227 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04); FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented 10/10/03); FOIA Update, Vol. III, No. 4, at 5 (advising that "[a]fter death, a person no longer possesses privacy rights . . . [and that] privacy rights cannot be inherited by one heirs[, though] the disclosure of particularly sensitive personal information pertaining to a deceased person may well threaten the privacy interests of surviving family members or other close associates"); cf. United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir.) (ordering disclosure of presentence report of deceased person pursuant to Rule 32(c) of Federal Rules of Criminal Procedure), amended, 854 F.2d 359 (9th Cir. 1988). But see Kiraly v. FBI, 728 F.2d 273, 277-78 (6th Cir. 1984) (adopting the district court's rationale, "which held: '. . . that the right to recovery for invasion of privacy lapses upon the person's death does not mean that the government must disclose inherently private information as soon as the individual dies'") (Exemption 7(C)).

88. FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03; supplemented 10/10/03) (discussing line of D.C. Circuit cases that suggested protecting post-mortem "reputational" interests).

89. See 124 S. Ct. at 1577 (distinguishing "survivor privacy" basis from any "reputation[al]" basis for privacy protection); see also FOIA Post, "Supreme Court Rules for 'Survivor Privacy' in Favish" (posted 4/9/04) (advising that "the proper application of [the 'survivor privacy'] principle involves protection of the interests of a decedent's survivors themselves").

90. Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 865 (D.C. Cir. 1981) (emphasis added) (Exemption 7(C)); see Times Picayune, 37 F. Supp. 2d at 478-79 (noting that prominence of person "may well exacerbate the privacy intrusions") (Exemption 7(C)); cf. Wichlacz v. United States Dep't of Interior, 938 F. Supp. 325, 333-34 (E.D. Va. 1996) (recognizing that intense media scrutiny of death of Deputy White House Counsel Vincent Foster enhances privacy interests of individuals connected even remotely with investigation), aff'd, 114 F.3d 1178 (4th Cir. 1997) (unpublished table decision).

91. Fund, 656 F.2d at 866; see also Nation Magazine v. Dep't of State, No. 92-2303, slip op. at 20-24 & n.15 (D.D.C. Aug. 18, 1995) (holding that public interest in information about presidential candidate H. Ross Perot's dealings with government or whether he ever was investigated by FBI is not kind of public interest recognized by FOIA); Wilson, 1991 WL 111457, at *6 (stating that even well-known Iran-Contra figure Richard Secord had privacy interest in fact that he was investigated; such investigation would reveal "little about 'what government is up to'"); cf. In re Espy, 259 F.3d 725, 729-30 (D.C. Cir. 2001) (granting motion, pursuant to Independent Counsel Statute, 28 U.S.C. § 594(h) (2000), to release final report concerning former Secretary of Agriculture). But see Wilson v. Dep't of Justice, No. 87-2415, 1991 WL 120052, at *4 (D.D.C. June 18, 1991) (ordering further declarations to determine whether any of the individuals investigated "are 'public figures' like the plaintiff whose involvement in Government operations would be of interest to the public").

92. See Fund, 656 F.2d at 865; Billington v. Dep't of Justice, 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. Strassman v. United States Dep't of Justice, 792 F.2d 1267, 1268 (4th Cir. 1986) (protecting privacy interest of governor alleged to have invoked Fifth Amendment before grand jury) (Exemption 7(C)); McNamera v. United States Dep't of Justice, 974 F. Supp. 946, 959 (W.D. Tex. Aug. 12, 1997) (stating that "[s]imply because an individu