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Supreme Court to Hear FOIA and Privacy Act Cases Back-to-Back

In an extraordinary coincidence of scheduling, the United States Supreme Court has announced that it will hear oral arguments in a Freedom of Information Act case and a Privacy Act case on the same day, one immediately after the other, in early December. Nothing quite like this has ever occurred in the history of the two statutes.

Indeed, to all those who are interested in the FOIA and the Privacy Act, Wednesday December 3 can be viewed as "privacy day" at the Supreme Court, because the only cases to be heard by the Court that day will involve privacy issues under these two closely related federal statutes. Oral argument in each case will be heard for exactly one hour, with the time divided equally between the parties on the opposite sides of the issues presented.

The FOIA case pending before the Supreme Court is the longstanding Favish case, which involves the application of the "survivor privacy" concept to several death-scene photographs taken of the body of former Deputy White House Counsel Vincent W. Foster, Jr. after he committed suicide in July 1993. See FOIA Post, "Supreme Court Decides to Hear 'Survivor Privacy' Case" (posted 5/13/03). It is a precedent-setting case in multiple respects. See id.

In Favish, the Court is considering the government's appeal of the Ninth Circuit Court of Appeals' refusal to accord the photographs privacy protection under the FOIA's Exemption 7(C). See Favish v. Office of Indep. Counsel, 217 F.3d 1168 (9th Cir. 2001), summary judgment granted on remand, No. CV. 97-1479, 2001 WL 770410 (C.D. Cal. Jan. 11, 2001), aff'd, Nos. 01-55487, 01-55788, 01-55789 (9th Cir. June 6, 2002), reh'g en banc denied (9th Cir. Aug. 16, 2002), cert. granted, 123 S. Ct. 1928 (2003). The Foster family has intervened in the case in support of the government's pro-privacy position, and its counsel has been given a third of the government's 30-minute argument time.

The Privacy Act case to be heard by the Court is Doe v. Chao, 306 F.3d 170 (4th Cir. 2002), reh'g en banc denied, Nos. 00-2247, 00-2292 (4th Cir. Nov. 15, 2002), cert. granted, 123 S. Ct. 2640 (2003), which involves a unique question of statutory construction under one of the Privacy Act's "civil remedies" provisions -- specifically, one that provides in a case of wrongful disclosure for a plaintiff's recovery of "actual damages . . . but in no case . . . less than the sum of $1,000." 5 U.S.C. ยง 552a(g)(4)(A). The Court will be considering the appeal of an anonymous plaintiff (who is proceeding under the possibly prescient pseudonym of "Buck Doe") from a decision of the Fourth Circuit Court of Appeals that denied him recovery of the $1,000 statutory sum due to his failure to prove actual damages resulting from the Department of Labor's public disclosure of his social security number during its adjudication of his claim for black lung compensation benefits.

The Doe case is the first case arising purely under the Privacy Act to be accepted for review by the Supreme Court in the 28-year history of that Act. (The Privacy Act was enacted in 1974, but did not take effect until September 27, 1975, just as the FOIA similarly took effect on July 4, 1967, one year after its enactment in 1966.) Only once earlier, nearly a decade ago, did the Supreme Court take a case involving the Privacy Act -- but that case involved only the Privacy Act's interplay with the FOIA and a federal labor statute. See DOD v. FLRA, 510 U.S. 487 (1994). The dispositive issue there was the proper withholding of the home addresses of federal employees under Exemption 6 of the FOIA. See FOIA Update, Vol. XV, No. 2, at 2.

Favish will be the first FOIA case to be argued before the Supreme Court since January 2001, when the Court heard oral argument in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001). See FOIA Post, "Supreme Court Rules in Exemption 5 Case" (posted 4/4/01). It will be argued first, at 10:00 a.m., with the Doe argument following promptly afterward at 11:00 a.m. In a further scheduling coincidence, the same Assistant to the Solicitor General, Patricia A. Millett, is currently principal counsel for the government in both cases, and prior to their scheduling was slated to argue both cases, but most likely the Solicitor General will not ask the same counsel to present argument in both cases back-to-back.

The Supreme Court's decisions in Favish and Doe can be expected to be handed down at any time between mid-winter and the time of the Court's summer recess in late June or early July.  (posted 9/30/03)


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