Exemption 10

Privacy vs. the public's right to know

Posted: July 8, 2013 | Tags: FOIA

In an age of shrinking personal privacy, the federal government is relying more than ever on privacy concerns to deny access to government records under the Freedom of Information Act (FOIA).

Private information found in personnel, medical or similiar files is one of nine exemptions that agencies can cite to deny or redact access to records. Private information found in law enforcement files is another. Yet the government must show that releasing the information would result in an “unwarranted” invasion of privacy. The Workshop’s analysis of annual FOIA reports show that federal agencies invoked one of the two privacy exemptions more than 232,000 times last year — 53 percent of all denials. That is the highest use of privacy exemptions since fiscal year 2002.

It’s unclear why the use of privacy exemptions has increased, but scholars and watchdog groups argue that the federal government — and the Supreme Court — have slowly expanded  privacy rights beyond the guidelines established in FOIA. Supreme Court decisions in five FOIA cases shed light on how the government came to value privacy interests over the public’s right to know what its government is doing.

Deptartment of the Air Force v. Rose

The 1976 Supreme Court decision in Department of the Air Force v. Rose established that the Act’s basic purpose reflects a philosophy of full agency disclosure, unless information is clearly exempted within the nine categories defined by the law. Justices upheld a lower court’s ruling that the Air Force could not invoke privacy Exemption Six to withhold information from law students requesting disciplinary cases against cadets accused of cheating on tests at the Air Force Academy. They said that redacting the cadets’ names would be enough to protect their privacy without infringing on the public’s interest in understanding how well its military is trained.

A University of Florida communications scholar, Martin Halstuck, argues in a 1999 law review article that since Rose, however, the Court has narrowly interpreted the public interest in disclosure and broadly interpreted the act’s privacy exemptions. Later court rulings have prevented attempts, among others, to confirm whether the U.S government kept its word to safeguard human rights in Haiti and limited debate about the government’s environmental plans for the Oregon High desert.

U.S. Department of State v. Washington Post Co.

The Court tooks its first step toward narrowing the public interest in disclosure in its 1982 ruling in U.S. Department of State v. Washington Post Co. The State Department denied a Washington Post reporter’s request to confirm unofficial reports claiming that two leaders of Iran’s anti-American government held U.S. passports. The Supreme Court would later uphold the State Department’s judgment, concluding that government records do not need to contain intimate information to constitute a “clearly unwarranted” invasion of personal privacy if disclosed. Chief Justice William Rehnquist wrote in the unanimous opinion that the court believed Congress intended the phrase “similar files” to have “a broad, rather than narrow meaning.”

United States Department of Justice v. Reporters Committee for Freedom of the Press

A 1989 Supreme Court ruling set precedent allowing federal agencies to consider the merit or purpose of a FOIA request. The case, United States Department of Justice v. Reporters Committee for Freedom of the Press, involved a news media request for the FBI’s criminal history file on a suspected crime boss. The court ruled in favor of the FBI’s use of Exemption Seven, saying that the information about a private citizen does not further public understanding of how the government operates.

The ruling directly conflicts with the act’s intention to make records available to any person, regardless of how that person intends to use the information, wrote attorney Glenn Dickinson in a University of Cincinnati Law Review article. The outcome of the case, Dickinson says, did not “bode well for the future disclosure of government information in which some privacy interest is asserted.”

Department of State v. Ray

A Supreme Court decision two years later would block an attempt to scrutinize government actions in favor of protecting minor privacy claims. In Department of State v. Ray,  the federal government denied a lawyer’s request for the names and addresses of Haitian migrants whom the U.S. Coast Guard had intercepted at sea and returned to Haiti. The lawyer wanted to contact them to make sure the U.S. government was fulfilling its promise to ensure the Haitian government did not persecute people who fled the island. The court ruled in favor of the Department of State in 1991, saying that releasing such private information could harm the migrants and make them targets of retaliation.

American University legal expert Jeffrey Zimmerman said in his 1993 law review article that the agency did not prove a “clearly unwarranted invasion of personal privacy” and allowed minimal and speculative privacy interests to outweigh the substantial public interest in disclosing the names of Haitian migrants.

National Archives and Records Administration v. Favish

The Supreme Court’s expansion of Exemption Seven in a 2004 ruling would have a major impact on journalists by extending personal privacy rights to relatives. National Archives and Records Administration v. Favish revolved around a California attorney’s efforts to obtain the death-scene photographs of Vincent Foster Jr., former deputy counsel to President Clinton. Federal investigators labeled Foster’s death a suicide, but attorney Allan Favish doubted those findings and requested the photos under FOIA. The court would eventually deny the request and rule in favor of Foster’s relatives, who claimed that releasing the photos would constitute a painful and unwarranted invasion of the family’s privacy.

The court’s ruling set a “perilous” precedent for journalists, especially following the American invasion of Iraq a year earlier in 2003, according to Clay Calvert, co-director of the Pennsylvania Center for the First Amendment. He said Favish would make it more difficult for journalists to obtain records and photographs detailing the casualties of war if relatives could claim an invasion of privacy.

 

 




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Privacy vs. the public's right to know

Scholars and watchdog groups say the federal government — and the Supreme Court — have slowly expanded privacy rights beyond the guidelines established in FOIA. Supreme Court decisions in five FOIA cases shed light on how the government came to value privacy interests over the public’s right to know.


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