UNITED STATES SUPREME COURT
October Term, 1990
U.S. DEPARTMENT OF STATE,
MICHAEL D. RAY, et al.,
June 14, 1991
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Brief Amicus Curiae of The American Civil Liberties Union and Computer
Professionals for Social Responsibility in Support of Respondents
Critical Mass Energy Project v. NRC, No. 90-5120, (D.C Cir. Apr. 30,1991)
Dept. of the Air Force v. Rose, 495 F.2d 261 (2d Cir. 1974), aff'd, 425
U.S. 352 (1976)
Dept. of the Air Force v. Rose, 425 U.S. 352 (1976)
Ditlow v. Shultz, 517 F.2d 166 (D.C. Cir. 1975)
FBI v. Abramson, 456 U.S. 615 (1982)
Hopkins v. HUD, 929 F.2d 81 (2d Cir. 1991)
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980)
U.S. Dept. of Justice v. Julian, 486 U.S. 1 (1988)
U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press,
489 U.S. 749 (1989)
U.S. Dept. of State v. Washington Post Co., 456 U.S. 595 (1982)
Washington Post Co. v. HHS, 690 F.2d 252 (D.C. Cir. 1982)
Statute and Regulation:
5 U.S.C. S. 552(b)(6)
5 U.S.C. S. 552(b)(7)(C)
8 C.F.R. S. 208.6
Agreement on Migrants -- Interdiction, Sept. 23, 1981, U.S.-Haiti, 33
U.S.T. 3559, T.I.A.S. No. 10241
INTEREST OF AMICI
The American Civil Liberties Union (ACLU) is a non-partisan organization
of almost 300,000 members dedicated to protecting civil liberties and
civil rights. The ACLU has a long history of promoting full government
disclosure of information through litigation and legislation. The ACLU
also has a strong interest in protecting privacy rights and has supported
legislation guarding private information from unwarranted disclosure.
The Computer Professionals for Social Responsibility (CPSR) is a non-
partisan organization whose members include a Nobel Laureate and four
winners of the Turing Prize, the highest honor in computer science. The
CPSR supports both open access to government information and privacy
protection for personal information.
When these two interests -- open government and individual privacy --
conflict in Freedom of Information Act (FOIA) cases under Exemption 6 or
7(C), the ACLU and the CPSR believe that FOIA requires courts to
evaluate the strength of these competing interests to decide whether FOIA
requires disclosure of the requested information. As an amicus curiae in
U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489
U.S. 749 (1989), the ACLU argued that the lower court had incorrectly
analyzed the competing interests. The lower court had taken a too narrow
view of both the privacy interest and the public interest at stake with
respect to disclosure of computerized criminal history records.
In this case, the ACLU and the CPSR urge the Court to recognize the
substantial public interest that must be balanced against the privacy
interest implicated by disclosure of the requested names and addresses.
The Government's assertions -- that there is no public interest in
information that does not shed light "directly" on what the government is
up to and that names and addresses of individuals virtually never shed
light directly on governmental activities -- are directly at odds with
this Court's holding in Reporters Committee. For these reasons, the ACLU
and the CPSR urge the Court to reject the Government's analysis and to
affirm the lower court's decision requiring disclosure. <1>
STATEMENT OF THE CASE
On September 23, 1981, the U.S. entered into an agreement with the
government of Haiti for the purpose of preventing "illegal immigration" of
Haitians into the U.S. Agreement on Migrants -- Interdiction, Sept. 23,
1981, U.S.-Haiti, 33 U.S.T. 3559, T.I.A.S. No. 10241. The agreement
provided that the U.S. would interdict Haitians attempting to enter the
U.S. illegally. Ibid. The U.S. also would repatriate all interdicted
Haitians except those who "qualify for refugee status." Ibid. In return,
Haiti agreed not to persecute the returnees for their departures. Ibid.
To evaluate the Government's policy of repatriating interdicted Haitians
and to determine whether to continue that policy, the State Department
began in late 1981 to monitor Haiti's compliance with its agreement not to
persecute returnees. J.A. 42, 55, 56. First, officials assigned to the
U.S. Embassy in Haiti obtained the interdictees' names and addresses as
they were returned to Haiti by the U.S. Coast Guard. J.A. 56. Then,
after passage of a few months, State Department personnel interviewed a
sample of the returnees to determine whether they had been harassed or
mistreated. J.A. 56.
From the interviews it conducted, the State Department concluded that
Haiti was abiding by its agreement not to persecute returnees. J.A. 67-
73. The Government accordingly continued to repatriate interdicted
Haitians. J.A. 67-73. It also represented to the public and to the
Immigration and Naturalization Service (INS) that undocumented Haitians
living in the U.S. need not fear persecution upon return to Haiti. J.A.
67-73. In turn, an INS official granted a newspaper interview in which he
was quoted as saying that the INS would release upon request the names of
approximately six hundred Haitians who had been involuntarily returned to
Haiti and who would confirm, if contacted, that they had not been
mistreated. J.A. 28.
That newspaper story caused Respondent Michael D. Ray, a Miami attorney
who represents Haitians in asylum cases, to request the INS to release the
six hundred names pursuant to FOIA. J.A. 15, 19. The INS answered Mr.
Ray's FOIA request by stating that the newspaper had misquoted the INS
official and that the INS had no such list of six hundred names. J.A. 38-
Mr. Ray subsequently filed a FOIA request with the State Department,
seeking reports of interviews conducted to monitor Haiti's treatment of
returnees. J.A. 22, 41. Some two years later, the Department finally
responded by releasing to Mr. Ray twenty-five documents relating to the
Department's monitoring efforts. J.A. 41. Seventeen of those documents
summarize interviews with individually identified returnees. But,
invoking FOIA's Exemption 6, the Department redacted from those summaries
the names and addresses of the interviewees. J.A. 42. This lawsuit
challenges the propriety of withholding those names and addresses.
SUMMARY OF ARGUMENT
This case is about how to evaluate competing interests in privacy and
open government under Exemption 6. That exemption provides that agencies
may withhold only personal information "the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.
S. 552(b)(6) (1986) (emphasis added). Although the names and addresses at
issue here are personal information that implicates an Exemption 6 privacy
interest, that interest does not outweigh the strong public interest in
the light that their release would shed on implementation of the
Government's immigration policy. Thus, their disclosure would not
"constitute a clearly unwarranted invasion of personal privacy," and FOIA
compels their release.
The court below properly balanced the public and privacy interests at
stake in this case. Pet. App. 13a. The Government's challenge, in
contrast, badly distorts the Exemption 6 analysis. First, rather than
submitting explicit evidence that disclosure would cause an invasion of
privacy, the Government merely asserts that disclosure of the
interviewees' names and addresses would subject them to "possible
embarrassment" and subvert the "understanding" of confidentiality
surrounding the interviews. As the courts below found, the interviewees
have some interest in maintaining the privacy of their names and
addresses. Pet. App. 7a-8a, 29a. But to demonstrate that the privacy
interest at stake in this (or any other) Exemption 6 case is strong enough
to justify nondisclosure, the Government must produce more than mere
The Government also ignores the full range of public interests to be
considered in Exemption 6 and 7(C) cases. Consistent with FOIA's general
philosophy of full disclosure, this Court has long held that FOIA's
disclosure requirements are to be read broadly and its exemptions
construed narrowly. U.S. Dept. of Justice v. Julian, 486 U.S. 1, 8 (1988)
(citing FBI v. Abramson, 456 U.S. 615, 630 (1982);
Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). This
interpretive maxim requires a broad definition of the public interests to
be considered in Exemption 6 and 7(C) cases. Thus, Reporters Committee
held that courts considering the public-interest side of the balance in
such cases must determine whether release of the requested information
would "shed any light on the conduct of any Government agency or
official." 489 U.S. at 773 (emphasis added).
The information Respondents seek in this case undeniably would shed light
on the State Department's conduct concerning its Haitian repatriation
policy. Release of the interviewees' names and addresses would reveal the
source of the facts underlying an aspect of the nation's immigration
policy. It would further FOIA's "basic purpose . . . 'to open agency
action to the light of public scrutiny,'" Rose, 425 U.S. at 372, by
telling the public against whom the Government enforced its policy of
repatriation and upon whom the State Department relied in evaluating that
policy and in deciding to continue it.
Contrary to the Government's assertion, Pet. Br. 20-27, the public's
interest in the names and addresses is quite strong. FOIA compels the
release of that information unless the Government demonstrates that the
interviewees' interests in maintaining the privacy of their names and
addresses is so great that disclosure would be "clearly unwarranted."
Speculation about "possible embarrassment" and suggestions of
"understandings" of confidentiality do not outweigh the significant public
interest in the information requested here. Accordingly, this Court should
affirm the judgment of the court of appeals.
I. Application Of Exemption 6 Requires A Careful Weighing Of
Individuals' Interests In Privacy And The Public Interest in Open
Applying Exemption 6 requires a careful "balancing of the individual's
right of privacy against the preservation of the basic purpose of [FOIA]
'to open agency action to the light of public scrutiny.'" Dept. of the Air
Force v. Rose, 425 U.S. 352, 372 (1976) (quoting Dept. of the Air Force v.
Rose, 495 F.2d 261, 263 (2d Cir. 1974)). The "preliminary question" in
that balancing is whether the Government has demonstrated that release of
the requested information would implicate "the sort of 'personal privacy'
interest that Congress intended [Exemption 6] to protect." U.S. Dept. of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749,
762 (1989). If not, the information must be disclosed. Ibid.
If the Government demonstrates that a personal privacy interest is
implicated, the Court must consider a second question: whether there is a
public interest in disclosure of the requested information. For purposes
of Exemption 6, such a public interest exists if release of the
information would "shed any light on the conduct of any Government agency
or official." Id. at 773. If release would shed no such light, the agency
may withhold the information. Id. at 780.
If disclosure would shed light on governmental conduct, FOIA requires a
court to balance the public interest in its release against the implicated
privacy interest. That balancing is significantly different under
Exemption 6 than under 7(C). As this Court noted in Reporters Committee,
"Exemption 7(C)'s privacy language is broader than the comparable language
in Exemption 6 in two respects." 489 U.S. at 756. First, whereas 7(C)
protects against an "unwarranted invasion" of privacy, Exemption 6
requires the invasion of privacy to be "clearly unwarranted." Ibid.
Second, while Exemption 7(C) encompasses any disclosure that "could
reasonably be expected to constitute" an unwarranted invasion, Exemption 6
is limited only to disclosures that "would constitute" a clearly
unwarranted invasion. Ibid. Quite simply, the Government bears a heavier
burden to justify nondisclosure under Exemption 6 than under Exemption 7.
In Exemption 6 cases, FOIA compels disclosure unless the Government
demonstrates that the individual's interest in maintaining the privacy of
the information is so great that disclosure would be "clearly
unwarranted." Ibid.; U.S. Dept. of State v. Washington Post Co., 456 U.S.
595, 602 (1982).
In this case, the court of appeals properly conducted the Exemption 6
balancing process step by step. It first determined that there are
Exemption 6 privacy interests at stake. Pet. App. 8a. It then weighed
the public interest in knowing about the State Department's conduct
concerning interdicted Haitians against the interviewees' interests in
maintaining the privacy of their names and addresses. Pet. App. 8a-13a.
The court concluded that the Government had failed to establish that
disclosure would be "clearly unwarranted" in this case. Pet. App. 13a.
Rather, any invasion of privacy resulting from disclosure would be
outweighed by the strong public interest in release of the information.
Ibid. That conclusion should be upheld.
II. The Government Bears A Preliminary Burden To Show That Disclosure
Would Implicate A Significant Exemption 6 Privacy Interest.
An Exemption 6 privacy interest undeniably is at stake in this case.
The name and address of each interviewee clearly constitute information
about that person. Both "the common law and the literal understandings of
privacy" traditionally encompass such personal information. Reporters
Committee, 489 U.S. at 763. But that does not end the inquiry. The real
question on the privacy side of the scale is whether the Government has
carried its burden to show that the interviewees' have a strong privacy
interest -- one strong enough to justify nondisclosure.
Several factors affect the significance of a personal privacy interest
implicated by disclosure of governmental information. One such factor is
whether disclosure would be reasonably likely to cause serious harm to the
subject of the requested information. See, e.g., Reporters Committee, 489
U.S. at 780 (private citizen had strong privacy interest in preventing
release of rap sheet containing information likely to injure his
reputation); Washington Post, 456 U.S. at 597 & n.2 (members of Iran's
revolutionary government had strong privacy interest in preventing
disclosure of their American citizenship, as it would likely result in
their physical abuse); Rose, 425 U.S. at 381 (disciplined service academy
cadets had strong privacy interest in preventing their identification as
honor code violators, because it would likely damage their professional
military standing); see also, e.g., Ditlow v. Shultz, 517 F.2d 166, 170
(D.C. Cir. 1975) (air passengers who traveled a particular route during a
specific period had "less than a substantial" privacy interest in release
of their names and addresses where only likely result would be receipt of
Another factor affecting the significance of the privacy interest is
whether the requested information describes the subject's interaction with
an agency of the Government or with private parties. See, e.g., Hopkins
v. HUD, 929 F.2d 81, 87 (2d Cir. 1991) (finding "significant" privacy
interest in payroll information revealing how much private parties were
paid by their private employers). Others include whether the requested
information is "freely available" in substantially the same form,
Reporters Committee, 489 U.S. at 763-64, whether federal, state, or local
legislation recognizes the private nature of the information, id. at 765,
whether a governmental promise of confidentiality was necessary to obtain
the information, Washington Post Co. v. HHS, 690 F.2d 252, 263 (D.C. Cir.
1982), and whether the requested information concerns one person or many.
Reporters Committee, 489 U.S. at 775, 780 (noting strong privacy interest
implicated by "FOIA request for information about a particular private
In order to demonstrate a significant privacy interest, the Government
must produce specific evidence concerning the foregoing (or similar)
factors. Here, the Government's declarations are simply insufficient to
establish that a significant privacy interest would be clearly threatened
by disclosure of the interviewees' names and addresses. The Declaration
of John Eaves states merely that release of the interviewees' names and
addresses "would . . . subject them or their families to possible
embarrassment in their social and community relationships." J.A. 43
(emphasis added). But "Exemption 6 was directed at threats to privacy
interests more palpable than mere possibilities." Rose, 425 U.S. at 380
n.19. The Government must affirmatively show that release would cause an
invasion of privacy. The Eaves declaration does not carry that burden,
especially given the fact that the interview summaries themselves reveal
that State Department personnel told many interviewees' neighbors about
the interviews. See, e.g., Pet. Lodging 4 (stating that the returnee
officer "asked some women sitting outside [deletion] if they were
acquainted with [deletion] and explained that [the officer] wanted to
interview him to learn how he had been since his return after the 7/12/83
interdiction of the 'C'est la Vie'"). <2>
Neither does the Government provide sufficient evidence that the
Department's interviewers promised confidentiality. In his declaration,
Mr. Eaves suggests that "those who were interviewed consented to the
procedures with the understanding that their conversations with Embassy
officers would be conducted under conditions of privacy and
confidentiality." J.A. 42-43 (emphasis added). But Mr. Eaves did not
participate in the interviews; he did not hear what was said and could not
know what the interviewees "understood." His declaration does not recount
what the interviewers told the interviewees or in any other way establish
that the Government promised to keep confidential the fact that certain
persons consented to be interviewed. Even less does it show that any
promises or understandings were necessary to secure the interviews. Cf.
Critical Mass Energy Project v. NRC, No. 90-5120, slip op. at 14-15 (D.C
Cir. Apr. 30, 1991) (to justify nondisclosure under Exemption 4,
Government must produce specific evidence that confidentiality was
necessary to obtain requested information). Indeed, such a showing would
be difficult in light of the State Department's admissions that many of
the interviewees traveled to the U.S. Embassy of their own accord and
volunteered to talk to American officials about their experiences. See,
e.g., Pet. Lodging 10, 12.
Moreover, even assuming that the Government made such promises,
confidentiality and personal privacy are not synonymous. Governmental
promises of confidentiality do not, by magic, convert disclosures of
information into invasions of personal privacy. If they did, State
Department promises, rather than the will of Congress, would determine the
scope of Exemption 6. Washington Post Co. v. HHS, 690 F.2d at 263.
Instead, a promise of confidentiality is one factor to be considered in
determining whether disclosure would cause an invasion of personal
privacy. See supra at 9. Standing alone, however, such a promise cannot
justify nondisclosure. Washington Post Co. v. HHS, 690 F.2d at 264. If
the Government is to demonstrate that a privacy interest is so significant
that its invasion would be clearly unwarranted, it must offer more than
"understandings," "possibilities," and rhetoric.
III. Disclosure Of The Interviewees' Names And Addresses Would Serve The
Public Interest By Shedding Light On State Department Conduct.
The Government's assertions concerning the public-interest side of the
scale are similarly inadequate to justify nondisclosure. In Reporters
Committee, this Court made clear that for the purposes of Exemption 6 and
7(C) the public has an interest in the disclosure of any information that
would "shed any light on the conduct of any Government agency or
official." 489 U.S. at 773. This standard must be read broadly to
effectuate FOIA's mandate of full agency disclosure. U.S. Dept. of Justice
v. Julian, 486 U.S. 1, 8 (1988). The Government ignores this principle.
Instead, it seizes on the single appearance of a single word in this
Court's opinion in Reporters Committee and argues that the light cast by
the interviewees' names and addresses would not shine "directly" enough on
the State Department's performance to give the public an interest in their
disclosure. Pet. Br. 23-25.
The information Respondents seek here undeniably would shed light on the
State Department's conduct concerning its repatriation policy. Indeed,
release of the interviewees' names and addresses would shed light directly
on that conduct: it would tell the public whom the Department consulted to
obtain the facts underlying its evaluation and continuation of its policy
of repatriating interdicted Haitians. Thus, even under the Government's
test, the public has an interest in such release. But the Government's
insistence that the public has an interest only in information shedding
light "directly" on agency conduct misses the point.
In asserting that the public's interest in the Haitian interviewees'
names and addresses would not tell us anything "directly" about the State
Department's activities, the Government ignores the context of the word on
which it so heavily relies. In Reporters Committee, this Court was asked
to accept that the public had an interest in information concerning the
unlawful conduct of Charles Medico -- a private person -- as a basis for
inferring that a Congressman with whom he was allegedly associated also
had engaged in criminal activity. The Court acknowledged that determining
whether the Congressman had engaged in unlawful conduct met the public-
interest test of Exemption 7(C). 489 U.S. at 774. But the Court
concluded that the requested information provided no way to answer the
question posed: Was the Congressman involved in criminal activity? In
short, the Court held that the requested information would not shed light
directly, indirectly or otherwise on any government conduct. That simply
is not the case here. <3>
The Government's argument, in reality, is that the public has an interest
only in disclosure of information that sheds light on the quality of an
agency's performance -- that is, whether the agency functioned well or
poorly or made mistakes or not. Thus, the Government argues that
recognition of the public's interest in the interviewees' names and
addresses would require the Court to guess whether the interviewees would
tell Respondents something other than what they told the State Department
interviewers. Pet. Br. 26. But FOIA was not enacted only to shed light
on the Government's mistakes. It was enacted to "ensure an informed
citizenry." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
The "public interest in disclosure is not diminished by the possibility or
even the probability that [the State Department] is doing its . . . job
right." Washington Post Co. v. HHS, 690 F.2d at 264. As this Court stated
in Reporters Committee, the public has an interest simply in knowing "what
[the] government is up to." 489 U.S. at 773.
By definition, FOIA's concern with open Government embraces preventing
the existence of secret agency law as well as preventing the secret
application of that law. The disclosure of the identities of persons
deported by the Government would fall squarely within that purpose and
within the definition of the public interest formulated in Reporters
Committee. In short, the public has an interest simply in knowing on whom
the Government acts and on whom it relies in formulating, evaluating and
implementing its policies. That interest exists regardless of the wisdom
or legality of such action or reliance, and it would be furthered by
disclosure of the information here. <4>
The Government's argument concerning application of the Eleventh
Circuit's analysis to the facts of Reporters Committee is similarly
flawed. In that case, the journalists failed to litigate the most
relevant public interest -- shedding light on the FBI's conduct regarding
the maintenance of rap sheets. This unlitigated interest would have had
to be balanced against Medico's privacy interest, which this Court held to
be at its "apex." Reporters Committee, 489 U.S. at 780. Thus, affirmance
of the Eleventh Circuit's public-interest analysis would not throw open
agency files. Rather, it would merely require the balancing of interests
mandated by Congress.
Even if the Exemption 6 analysis required a showing that the requested
information would shed light on the wisdom or legality of agency conduct,
that test is met here. As the court of appeals observed, release of the
names and addresses would enable Respondents to "locate the Haitian
returnees and inquire about how they were treated after they were returned
to Haiti." Pet. App. 9a. From such inquiries, Respondents would be able to
determine whether the interview summaries on which the Department based
its decisions concerning repatriation accurately reflect the experiences
of the returnees.<5> That determination would enable Respondents to form
their own conclusions whether the returnees' experiences in fact support
the Government's continued policy of repatriating interdicted Haitians.
Thus, disclosure very definitely would shed light on the quality of the
IV. The Government's Insistence On Directness Only Confuses The
Exemption 6 Balancing Process.
At base, the "directness" with which disclosed information would shed
light on agency conduct is irrelevant to the public-interest side of the
Exemption 6 balance. The public's interest in requested information
depends on whether its disclosure would shed light on agency conduct,
Reporters Committee, 489 U.S. at 773, not on how -- directly or indirectly
-- it would do so.
If anything, "directness" affects the weight of the individual's interest
in maintaining the privacy of requested information. In this case, for
example, Respondents candidly admit that, in order to learn everything
they can about the State Department's performance, they need to contact
the interviewees. Although some courts have considered contact with
subjects of requested information relevant to the Exemption 6 balancing
process, those courts traditionally have evaluated such contact as a
factor affecting the weight of the individual's privacy interest. See,
e.g., Ditlow, 517 F.2d at 170 & n.15. Thus, the Government errs when it
insists that Respondents' need to contact the interviewees affects the
public-interest side of the Exemption 6 balance.
The Government's error is readily apparent in the absurd results
application of its analysis would produce. For example, the Government's
analysis would recognize the public's interest in release of information
that "directly" sheds light on the performance of purely ministerial
functions but not in information that "indirectly" sheds light on the
implementation of crucial governmental policies of widespread public
concern. Nothing in this Court's precedents or in the lower-court
decisions on which the Government relies justifies such a result.<6>
Unlike the State Department in this case, HUD did not "act on" the
construction workers in Hopkins. It did not hire them; it did not pay
them; it did not contact them. Moreover, it did not formulate, evaluate,
or implement any policy based on anything the workers said or did. Thus,
identification of the workers would not tell the public anything --
whether directly or indirectly -- about the Government.
The public has a strong interest in knowing the names and addresses of
the Haitian returnees interviewed by the State Department, because their
disclosure would shed light on the Department's performance of its duty to
monitor Haiti's treatment of returnees and on the Government's decision to
continue its policy of repatriating Haitians interdicted en route to the
U.S.. In contrast, the Government has failed to demonstrate the existence
of a strong privacy interest on the part of the interviewees. Thus, in
this case, the public interest in disclosure outweighs the limited privacy
interest implicated by revealing the identities of the returnees who spoke
with the State Department about their experiences, and the Government has
failed to establish that any invasion of privacy resulting from disclosure
would be "clearly unwarranted." Accordingly, the judgment of the court of
appeals should be affirmed.
June 14, 1991
John A. Powell
American Civil Liberties Union Foundation,
132 West 43rd Street, New York, NY 10036
Gary M. Stern
American Civil Liberties Union Foundation,
122 Maryland Avenue, N.E., Washington, DC 20002
Debra A. Valentine *
John A. Rogovin
Stephanie J. Parr
O'melveny & Myers
555 13th Street, N.W., Washington, DC 20004,
David L. Sobel
Computer Professionals For Social Responsibility
666 Pennsylvania Avenue, S.E., Washington, DC 20003
* Counsel of Record
<1> Counsel for the Petitioner and for the Respondents have consented to
the submission of this brief amicus curiae. Their letters of consent are
on file with the Clerk.
<2> There is no contention here that disclosure of the interviewees'
identities would reveal whether they had applied for political asylum.
That information is both presumptively confidential, see 8 C.F.R. S.
208.6 (1991), and reasonably likely, if disclosed, to subject such an
applicant to substantial risk of retaliation.
<3> The Government also overlooks the pragmatic concern underlying
Reporters Committee -- the likelihood that when "one private citizen is
seeking information about another," he often has no "inten[tion] to
discover anything about the conduct of the agency that has possession of
the requested records" but rather intends only to shed light on private
conduct. 489 U.S. at 773. Thus, Reporters Committee focused on the
distinction between information with a potential to shed light on official
conduct and that with the potential to shed light only on private conduct.
It did not focus, as the Government suggests, on the difference between
information which, in and of itself, sheds light on official conduct and
that which provides a means to shed such light. In Reporters Committee,
the latter distinction was irrelevant, because the requested information
provided no means to shed light on the Congressman's behavior. Id. at 774.
<4> The Government is simply wrong when it argues that applying the
Eleventh Circuit's reasoning to the facts of the Rose case "would have
required the Air Force to disclose the identifying information" contained
in the Academy's disciplinary case summaries. Pet. Br. 21-22.
Recognizing the public's interest in disclosure is only one part of the
Exemption 6 balancing process. That interest must then be weighed and
balanced against the individual's privacy interests to determine whether
disclosure would be "clearly unwarranted." Thus, recognizing the public
interest in the disciplined cadets' identities would not have required
disclosure. It merely would have necessitated the very balancing of
interests in which the Court engaged with respect to other aspects of the
<5> The Government mistakenly cites Kissinger v. Reporters Committee for
Freedom of the Press, 455 U.S. 136 (1980), for the proposition that FOIA
recognizes no public interest in nongovernmental information. See Pet.
Br. at 24. That case held only that FOIA confers no cause of action for
"an agency's failure to sue a third party to obtain" documents wrongfully
removed from governmental custody. 445 U.S. at 151.
<6> The Government relies heavily on Hopkins v. HUD, 929 F.2d 81 (2d Cir.
1991), to support its argument concerning directness. Pet. Br. 22-23. The
Second Circuit's opinion in that case does state that "disclosure of
information affecting privacy interests is permissible only if the
information reveals something directly about the character of a government
agency or official." 929 F.2d at 88. But the holding of Hopkins is that
for purposes of Exemption 6 "there is little or no public interest in
disclosure of the identifying information contained in the certified
payroll records" submitted to HUD. Id. at 89. That holding is entirely
consistent with the public-interest analysis articulated herein.
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