FOIA Update
Vol. VII, No. 3
1986

FOIA Counselor

With increasing frequency, federal agencies are faced with Freedom of Information Act requests which seek access to lists of agency employees and their office or duty station addresses. Such records are often sought for "mailing list" purposes by requesters interested in soliciting federal employees.

For many agencies -- particularly those which employ law enforcement or military personnel or those whose records are not easily produced in response to such requests -- these FOIA requests pose significant privacy concerns and/or administrative burdens. For such requests, the protection afforded by Exemption 6, 5 U.S.C. § 552(b)(6), as well as the much broader authority to withhold such compilations under Exemption 2, 5 U.S.C. § 552(b)(2), should be carefully considered.

Exemption 6 of the FOIA, which protects records the release of which would constitute "a clearly unwarranted invasion of personal privacy," 5 U.S.C. § 552(b)(6), is generally inapplicable to agency personnel lists inasmuch as there is no viable privacy interest in the names and business addresses of most federal employees. See FOIA Update, Sept. 1982, at 3. Indeed, the Office of Personnel Management has promulgated a regulation which requires that the names of most individual employees and their official duty addresses (as well as other specified data) be made available to the public, 5 C.F.R. § 293.311(a) (1986), except where "the data sought is a list" of such names and work addresses that would "otherwise be protected from mandatory disclosure under an exemption of the FOIA," 5 C.F.R. § 293.311(b) (1986). This exception is particularly significant with respect to the application of Exemption 2, discussed infra.)

The few FOIA decisions to have focused on requests for basic employee lists containing office addresses or duty stations have found no protectible privacy interests in such records. See, e.g., Hopkins v. Department of the Navy, Civil No. 84-1868, slip op. at 4 (D.D.C. Feb. 5, 1985) (release of names and official duty addresses of marines stationed at Quantico, Virginia would not constitute invasions of personal privacy because it "would disclose nothing about any of the individuals listed other than the fact that they are members of the armed services, which is itself a matter of public record"); National Western Life Insurance Co. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) ("It cannot be seriously contended that postal employees have an expectation of privacy with respect to their names and duty stations."). These decisions, of course, should not be confused with those properly affording privacy protection for federal employees' home addresses. See, e.g., American Federation of Government Employees v. United States, 712 F.2d 931, 932-33 (4th Cir. 1983); accord FOIA Update, Sept. 1982, at 3.

Certain categories of federal employees, however, certainly do possess privacy interests in their identities and work locations sufficient to warrant Exemption 6 protection. For instance, due to the nature of their work, law enforcement personnel often face personal harassment and even physical danger as a result of their employment. For such employees, the courts have routinely found a privacy interest sufficient to permit the withholding of their identities. See, e.g., New England Apple Council, Inc. v. Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984) (protecting Inspector General investigator under Exemption 7(C)); Lesar v. United States Depanment of Justice, 636 F.2d 472, 487-88 (D.C. Cir. 1980) (protecting FBI Special Agents under Exemption 7(C)); Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978) (same).

Similarly, the names and duty station addresses of military personnel "serving overseas or with classified, sensitive or deployable units" have been held to be withholdable on personal privacy grounds. Falzone v. Department of the Navy, Civil No. 85-3862 (D.D.C. Oct. 16, 1986) (protecting "potential targets of threats and terrorist attacks" under Exemption 6); see also Defense Privacy Board Advisory Opinion 14 (Mar. 13, 1986) (establishing refined policy of withholding names and duty addresses of military personnel serving in units stationed overseas or in units readily deployable). Thus, such "mailing list" records regarding these particular groups of employees can qualify for withholding under Exemption 6.

Additionally, Exemption 2 of the FOIA -- which permits the withholding of records "related solely to the internal personnel rules and practices of an agency," 5 U.S.C. § 552(b)(2) -- can provide broad protection for address lists of federal employees regardless of the sensitivity of their positions. This exemption is now understood to encompass two distinct categories of agency records which are internal in nature -- those the disclosure of which would risk circumvention of law, under the D.C. Circuit Court of Appeals' decision in Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1073-74 (D.C. Cir. 1981) (en banc), and those involving "trivial administrative matters of no genuine public interest," under the D.C. Circuit's decision in Founding Church of Scientology v. Smith, 721 F.2d 828, 830 n.4 (D.C. Cir. 1983). It is this latter aspect of Exemption 2 -- uniquely designed to shield agencies from the sheer burden of FOIA processing, see FOIA Update, Winter 1984, at 10 -- which warrants consideration for its possible application to requests for employee address lists.

The first step in this Exemption 2 analysis is to verify that the list sought is an "administrative" record created primarily for internal, housekeeping purposes. See Founding Church of Scientology v. Smith, 721 F.2d at 830 n.4 (the record must fall "within the terms of the statutory language as [pertaining to] a personnel rule or internal practice of the agency"). Surely almost any compilation of agency employee names would qualify as such under any reasonable interpretation of matters relating to "internal practices of the agency." Indeed, the courts have regarded this phrase as broadly encompassing a wide range of administrative records. See, e.g., Martinez v. FBI, Civil No. 82-1547, slip op. at 10-11 (D.D.C. Dec. 19, 1985) (caseload management and timekeeping records); Badhwar v. United States Department of the Air Force, 615 F. Supp. 698, 706 (D.D.C. 1985) ("For Official Use Only" stamps); Ferri v United States Department of Justice, 573 F. Supp. 852, 863 (W.D. Pa. 1983) (file jackets); see also National Treasury Employees Union v. United States Customs Service, 802 F.2d 525, 527 n.4 (D.C. Cir. 1986) (and cases cited therein).

Under the second step of this analysis, agencies should consider whether there is a legitimate public interest in the information. As the D.C. Circuit phrased it in Founding Church of Scientology, "if the material relates to trivial administrative matters of no genuine public interest, exemption [will] be automatic under the statute." 721 F.2d at 830 n.4. See also Department of the Air Force v. Rose, 425 U.S. 352, 369-70 (1976) (Exemption 2 protects "matters in which the public could not reasonably be expected to have an interest."); Martin v. Lauer, 686 F.2d 24, 34 (D.C. Cir. 1982) (Exemption 2 is "designed to screen out illegitimate public inquiries into the functioning of an agency.").

Because employee address lists neither regulate public behavior nor shed any light on how an agency operates, it is quite difficult to imagine any circumstance in which the public could have any legitimate interest in their disclosure, especially given the nature and purpose of the typical "mailing list" requester. Rather than serving any public interest, their FOIA-compelled disclosure easily could -- depending on the circumstances of the request and the agency's recordkeeping procedures -- impose a substantial administrative burden on the agency, simply because of the effort necessary to comply with the FOIA request. See Martin v. Lauer, 686 F.2d at 34 (Exemption 2 "serves to relieve the agency from the administrative burden of processing FOIA requests when internal matters are not likely to be the subject of public interest."). Thus, Exemption 2's unique "burden" protection can justifiably be invoked -- at the discretion of individual agencies -- for such requests.

If, however, a requester is able to identify a legitimate public interest in disclosure of a requested address list, then this special protection under Exemption 2 is inapplicable. Cf. FBI Agents Ass'n v. FBl, 3 GDS ¶ 83,058, at 83,566-67 (D.D.C. 1983) (administrative manual sections dealing with code of conduct, discipline and grievance procedures and equal opportunity programs ordered disclosed as "matters of public concern and interest"). Although such a showing would be quite unusual in an employee address list case, it cannot be forgotten that "a reasonably low threshold should be maintained for determining when withheld administrative material relates to significant public interests." Founding Church of Scientology v. Smith, 721 F.2d at 830-31 n.4.

In sum, Exemption 6 provides a narrow but important basis for protecting lists of the names and official duty addresses of federal employees whose positions place them at a risk of personal danger or harassment. Additionally, Exemption 2 provides all agencies with broad, discretionary authority to avoid the administrative burdens involved in the processing of FOIA requests for such records when neither the agency nor the requester identifies any legitimate public interest in disclosure. All agencies therefore should consider the possibility of nondisclosure under either or both of these exemptions when facing such FOIA requests.

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