UNITED STATES DEPARTMENT OF JUSTICE, ET AL., PETITIONERS V. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ET AL. No. 87-1379 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the Department of Justice, the Federal Bureau of Investigation (FBI), the Attorney General, and the Director of the FBI, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDING Petitioners, defendants below, are the United States Department of Justice, the Federal Bureau of Investigation (FBI), Attorney General Edwin Meese III, and FBI Director William S. Sessions. Respondents, plaintiffs below, are The Reporters Committee for Freedom of the Press, and Robert Schakne, a CBS News correspondent. TABLE OF CONTENTS Questions presented Parties to the proceeding Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The initial opinion of the court of appeals panel (App., infra, 1a-34a) is reported at 816 F.2d 730. The majority and dissenting opinions of the court of appeals panel on denial of rehearing (App., infra, 35a-49a) are reported at 831 F.2d 1124. The order denying rehearing en banc and the statement of four judges dissenting from that order (App., infra, 64a-66a) are unreported. The memorandum of the district court (App., infra, 52a-58a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 60a-61a) was entered on April 10, 1987. A petition for rehearing was denied on October 23, 1987 (App., infra, 62a-63a). On January 14, 1988, Chief Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including February 20, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552, provides in pertinent part: (a) Each agency shall make available to the public information as follows: * * * * * (3) * * * each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (4) * * * * * (B) On complaint, the district court * * * has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complaint. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. * * * * * (b) This section does not apply to matters that are -- * * * * * (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarrented invasion of personal privacy; (or) (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information * * * (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy * * *. QUESTIONS PRESENTED 1. Whether, in applying the invasion-of-privacy exemptions of the Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552(b)(6) and (7)(C), to a request for an individual's criminal (or other) records that are compiled by the federal government in large national data banks, a district court may conclude that the individual has a substantial privacy interest in the compiled information even though the raw data may be "matters of public record" in local government offices. 2. Whether, in applying Exemptions 6 and 7(C), a court should make an assessment of the weight of the "public interest" in the disclosure of the particular information sought, or should instead weigh in the balance only a uniform "public interest" in the disclosure of all information in the possession of the government. STATEMENT 1. This case arises from two 1978 requests under the Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. IV) 552. Respondents, CBS News correspondent Robert Schakne and The Reporters Committee for Freedom of the Press, filed requests with the Department of Justice for information on the criminal records of William, Phillip, Charles, and Samuel Medico. The requests sought "information about any prison sentences served in federal prisons, any convictions in federal courts, any indictments by federal grand juries or any arrests by federal law enforcement authorities," as well as "information known to the Department of Justice" concerning similar state and local matters (C.A. App. 14; see also id. at 25). The principal source of any such information would be the identification records or "rap sheets" maintained by the Identification Division of the FBI. Rap sheets consist of data on the subject's arrests and convictions supplied by a variety of federal, state, and local law enforcement agencies. The FBI routinely collects and compiles these data, pursuant to the statutory authority of 28 U.S.C. 534, and at present it maintains such files on more than 24 million persons. Further information on such matters may exist in other FBI and Justice Department files, apart from rap sheets, as a result of federal investigations. The Department denied respondents' requests on two grounds: (1) that under 28 U.S.C. 534 and FOIA Exemption 3, 5 U.S.C. 552(b)(3), all rap sheet information is exempt from disclosure; and (2) that under FOIA Exemptions 6 and 7(C), 5 U.S.C. (& Supp. IV) 552(b)(6) and (7)(C), the information sought, whether contained in rap sheets or not, was exempt from disclosure because disclosure would constitute an unwarranted (and clearly unwarranted) invasion of the subjects' privacy (C.A. App. 21-22, 30). 2. Respondents filed the present action in December 1979, at this point limiting their requests for the first time to "matters of public record" (C.A. App. 9). The scope of the controversy was further narrowed in two respects during the course of the district court proceedings. First, the Department released all responsive information regarding all of the subjects except Charles Medico because those other subjects had died, and in the judgment of the Department there was therefore no longer any substantial privacy interest to be protected (id. at 247-266). Second, the Department made a partial disclosure with respect to Charles Medico, on the basis of a public interest in disclosure articulated by respondents in their summary judgment papers. In those papers, respondents indicated that their inquiry was directed as uncovering evidence of illegal dealings between the Medicos and Congressman Daniel Flood, who had reportedly been involved in arranging for federal contracts for a business operated by the Medicos (C.A. App. 136-137). Respondents further suggested that the significance of the information sought would depend on the "type of criminal record involved," and they cited information regarding "a record of bribery, embezzlement, or other financial crime" as information that "would potentially be a matter of great public interest" (id. at 137-138). Based on this reasoning, the Department disclosed that -- apart from any rap sheet information for which the Department would claim exemption from disclosure under 28 U.S.C. 534 -- there were no records of the sort of "financial crimes" mentioned by respondents regarding Charles Medico (C.A. App. 256). The government continued to refuse to release -- or to confirm or deny the existence of -- a rap sheet for Charles Medico or any other records of non-financial crimes (or alleged crimes) resulting in his arrest, indictment, conviction, acquittal, or sentence. The district court granted summary judgment to the government in July 1985 (App., infra, 52a-58a). The court first ruled that 28 U.S.C. 534 qualified as a withholding statute under FOIA Exemption 3 and barred the release of rap sheet information (App., infra, 54a-56a). The court then held that rap sheet information, as well as any similar information that might exist in other Department files, was exempt from disclosure under FOIA Exemptions 6 and 7(C), since the release of such information would constitute an invasion of privacy that was not warranted by any public interest in disclosure (App., infra, 56a-58a). The court based this conclusion on its own assessment of the privacy and public interest concerns implicated in the circumstances of this case. In making that assessment, the court took into account the Department's in camera submission of any and all responsive information that had been withheld (id. at 57a-58a & n.2, 59a). 64 3. The court of appeals reversed. In the initial panel opinion, the court first held that 28 U.S.C. 534 did not qualify as a withholding statute under FOIA Exemption 3, and that rap sheets cannot be withheld on that basis (App., infra, 6a-13a). /1/ The court went on to rule that the district court had erred as a matter of law in its application of Exemptions 6 and 7(C) (id. at 14a-26a). /2/ The court acknowledged that these exemptions call for a balancing of the privacy interests at stake against the public interest in disclosure, but the court of appeals found reversible error in the district court's method of striking that balance. With regard to the privacy side of the balance, the court opined that the public availability of a record at the local level -- such as a conviction record in a county courthouse or an arrest record on a local police blotter -- sharply attenuates any privacy interest in such information, even when it is compiled in a large, national data bank (App., infra, 18a-21a). The court also dismissed the government's argument that individuals have a protectible interest under FOIA in maintaining the obscurity of such records, declaring the argument "attractive as a legislative policy matter" but unrelated to the statutory term "privacy" (id. at 18a-19a). On the public interest side, the court began by noting the "awkwardness of * * * appraising the public interest in the release of government records" (id. at 21a) and sought "objective indications of the public interest" (id. at 23a). It found such indications in the policy determinations of state and local bodies to maintain public access to the underlying records, and it held that the district court should have deferred to those determinations in assessing the "public interest" for purposes of the FOIA balancing test (id. at 22a & n.13). The court remanded for further proceedings under this standard. Judge Starr concurred in the result but expressed serious reservations about the test announced by the panel majority (App., infra, 27a-34a). He disagreed sharply with the majority's approach to the "public interest" side of the balancing test. While sharing to a degree the majority's discomfort with the "value-laden judgment calls" required under the balancing test, Judge Starr observed that such balancing is what Congress requires under these exemptions, and he chided the majority for "go(ing) AWOL" by declining to perform that task (id. at 30a). 4. The government sought rehearing on the Exemption 6 and 7(C) issues. Our rehearing submission was supported by an amicus curiae submission by Search Group International, Inc., an organization of state and local law enforcement officials, as well as agencies of the States of New York and California. These amici sought, among other things, to bring to the court's attention the complexity of state and local provisions regarding the disclosure of arrest and conviction records. In particular, amici noted that most states -- which often are the direct source of data provided to the FBI for inclusion in rap sheets -- treat compilations of such data as confidential at the state level, even though the underlying information remains a "public record" locally. See, e.g., N.Y. Exec. Law Section 837 (McKinney 1982); Cal. Penal Code Section 11077 (West 1982). Amici further noted that the panel opinion could have adverse consequences for the sharing of information by law enforcement agencies by inducing some states to decline to provide information to the FBI, in order to prevent state-compiled information from becoming widely available by means of FOIA requests. The court of appeals denied rehearing. The panel majority, however, altered its rationale, and Judge Starr voted to grant rehearing and affirm the district court's grant of summary judgment to the government (App., infra, 35a-49a). The majority analyzed anew the public interest side of the balancing test (id. at 36a-40a). The panel abandoned its earlier reliance on state and local policy determinations as guides for the assessment of the public interest in disclosure, but it declined to articulate any alternative means of making such assessments. On the contrary, the panel indicated its view that the judiciary "cannot" in any principled way make such assessments with respect to particular government records (id. at 38a). The panel therefore held that the only "public interest" to be considered in Exemption 6 and 7(C) cases is the general disclosure policy inherent in FOIA, without any distinction based on the nature of the information sought. The panel held that the court must "balance" this static public interest against cognizable privacy interests in particular instances (id. at 40a). With respect to the privacy side of the balancing test, the panel majority adhered to its view that there can be little if any privacy interest in information that is a matter of "public record" at any level (App., infra, 40a-42a). It clarified its prior opinion, however, by stating that the relevant inquiry is a "factual" one and not a matter of deference to state and local policy determinations (id. at 41a). Judge Starr, in dissent, "confess(ed) that (he) was wrong the first time around" (App., infra, 48a) and now vigorously disputed the panel's Exemption 7(C) analysis in its entirety. Judge Starr reiterated that the majority "fail(ed) to carry out its obligation" under the statute to make an evaluation of the public interest in disclosure of particular information (id. at 44a). In response to the majority's suggestion that it is impossible for judges to assess the public interest in any principled way, he pointed to case law concerning defamation of public figures as one example of a source of relevant distinctions between the public interest in one kind of information and others (id. at 45a-46a). Judge Starr also emphasized the distinct privacy concerns presented by "computerized data banks of the sort involved here," noting that both Congress and many states have recognized these concerns (id. at 44a). He stated that the panel's ruling would "have a pernicious effect on personal privacy interests in conflict with Congress' express will" (id. at 48a-49a). He further noted the potentially "crippling" administrative burdens the panel's ruling could impose, both by requiring federal agencies to ascertain the "public record" status of information received from outside sources and by transforming the federal government "in one fell swoop into the clearinghouse for highly personal information" in a variety of cases (id. at 46a, 48a). Ultimately, Judge Starr concluded that "(w)e should abandon right now our unfortunate departure from traditional FOIA analysis; having repented, we should then conduct an old-fashioned Exemption 7(C) balancing" (id. at 49a). Conducting that balancing, Judge Starr concluded that the district court's determination that the privacy interest in this case outweighed the public interest in disclosure should be affirmed (ibid.). Several weeks later, the court of appeals denied the government's suggestion of rehearing en banc (App., infra, 64a-66a). Four dissenting judges characterized the panel's decision as "profoundly wrong," stating that "(o)pening up the vast storehouse of computerized criminal histories to FOIA requests, regardless of how remote and negligible the public interest in such sensitive documents may be, is unfortunate and misconceived" (id. at 66a). The dissenters observed that further review was warranted in order to "restore stability and common sense to this vital area of our law" (ibid.). REASONS FOR GRANTING THE PETITION This is a relatively straightforward FOIA case, calling for a sensible balancing of the public interest in disclosure of any criminal records concerning Charles Medico against his privacy interest in maintaining the obscurity of any such records. /3/ There is no doubt that the invasion-of-privacy exemptions require "the balancing of private against public interests." United States Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Nor can there be any doubt that Congress wanted the judiciary to perform that balancing task. See 5 U.S.C. 552(a)(4)(B) (requiring de novo judicial review of withholding of records); Department of the Air Force v. Rose, 425 U.S. 352, 373 (1976) (footnote omitted) (quoting S. Rep. 813, 89th Cong., 1st Sess. 9 (1965)) ("Congress enunciated a single policy, to be enforced * * * by the courts, 'that will involve a balancing' of the public and private interests"). The district court faithfully performed the balancing task that Congress has assigned to the judiciary, and it held that the privacy interest outweighed any public interest in disclosure of these records. Rather than affirm that determination, or provide some reasoned explanation of why there is a public interest in these particular records that outweighs Charles Medico's privacy interests, the court of appeals chose to use this case as a vehicle to rewrite FOIA law. When balancing the public interest favoring disclosure against the competing privacy interest, courts not must -- according to the decision below -- pretend that a request for information about a person who lives in quiet anonymity involves exactly as weighty a public interest as, for example, a request for information about a presidential candidate or a judicial nominee. They must likewise pretend that the public interest in disclosure of, for example, findings of fault in an individual's divorce decree on file with the Veterans Administration is exactly the same as the public interest in disclosure of records showing misuse of public office. They must also conduct a supposedly "factual" inquiry into whether any privacy interest in nondisclosure of particular records has "faded" because the constituent information is contained in a public record "somewhere in the nation" (App., infra, 20a) -- an inquiry that the court of appeals apparently intends to require even in those cases in which neither the requester nor the federal government knows whether the information is in fact publicly available anywhere. These novel principles conflict with prior decisions of this Court and other courts of appeals, and they constitute an advertent attempt to make important new law. /4/ Such a radical transformation of FOIA law, if it were justified at all, should come from this Court, not the court of appeals. Moreover, the transformation was accurately characterized by the dissenting judges as "profoundly wrong" (App., infra, 66a). The principles announced by the court of appeals flout the intent of Congress that courts engage in meaningful balancing in Exemption 6 and 7(C) cases. /5/ Those principles also demean legitimate privacy interests that have heretofore received legislative recognition and judicial protection -- and they result in a material decrease in privacy for millions of private individuals. Review by this Court is accordingly warranted. 1. The court of appeals dismissed any privacy interest in any records covered by respondents' requests as "insignificant" (App., infra, 20a) in light of respondents' limitation of those requests to "matters of public record." This analysis wholly ignores the practical differences between information contained in dispersed, obscure local records and information contained in a centralized national data bank and accessible by individual names. It also fails to provide a workable standard for agency actions. a. The court of appeals treated as "novel" the question whether there can be any privacy interest in information "that (is) made available by municipal, state or federal agencies to any member of the public" (App., infra, 16a). It went on to reject out of hand the notion that a practical assessment of the information sought -- considering such factors as its age and general ignorance of its existence or possible location -- has any proper place in determining the strength of any cognizable privacy interest in it (id. at 18a-19a). Accordingly, while stopping just short of holding that there can be no privacy interest in such circumstances, the court concluded that, if the underlying information is "freely available to the general public" at any local level, "any privacy interest" in such information "seems insignificant" (id. at 20a). Both the approach and the conclusion of the court of appeals are at odds with previous pronouncements of this Court. In Department of the Air Force v. Rose, supra, this Court addressed for the first time the nature of the balancing test to be applied under Exemption 6. The Court indicated that, in assessing the weight of the privacy interests at stake, a court should take into account practical considerations such as the likelihood that persons with prior access to the information may not have realized its significance or may have forgotten what they once knew (see 425 U.S. at 380-381). As the court of appeals decision affirmed in Rose elaborated, "a person's privacy may be as effectively infringed by reviving dormant memories as by imparting new information" (Rose v. Department of the Air Force, 495 F.2d 261, 267 (2d Cir. 1974)). The mechanistic approach of the court of appeals in the present case -- which treats all information contained in "public records" as equally nonprivate even if the information is not in fact generally known and is not accessible as a practical matter except through national data banks -- conflicts with the Second Circuit's Rose decision and ignores this important element of personal privacy. This Court has previously considered and rejected a similarly mechanistic approach to the FOIA privacy exemptions, which likewise sought to substitute a per se rule for the careful balancing of interests. In United States Dep't of State v. Washington Post Co., supra, the Court reversed the District of Columbia Circuit's ruling that the "similar files" subject to Exemption 6 are limited to files reflecting "intimate details," holding instead that the exemption applies broadly to information "'the disclosure of which might harm the individual,'" and that it is "the balanc(e) of private against public interests, not the nature of the files in which the information was contained, (that) should limit the scope of the exemption." 456 U.S. at 599 (quoting H.R. Rep. 1497, 89th Cong., 2d Sess. 11 (1966)). In the same vein, the Court observed that even data that are "not normally regarded as highly personal" -- in particular, such mundane matters as "place of birth, date of birth, date of marriage, (and) employment history" -- "would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy" (456 U.S. at 600). That observation is difficult if not impossible to reconcile with the view taken below that there is, of necessity, only a "low-level privacy interest" in any records that happen to be "public(ly) availab(le) somewhere in the nation" (App., infra, 19a-20a). Although Washington Post dealt principally with the threshold issue of the definition of "similar files" under Exemption 6, the court of appeals in the present case erred in not heeding its more general teachings about the breadth of the privacy concerns to be considered under FOIA, and the importance of conducting a genuine balancing of interests instead of retreating into per se rules. In addition, the court misconstrued this Court's commentary in Washington Post on the particular matter of requests for "public records." That case involved a request for information regarding whether certain individuals held United States passports. In remanding for the court of appeals to conduct an Exemption 6 balancing, the Court stated that "the fact that citizenship is a matter of public record somewhere in the Nation cannot be decisive" (456 U.S. at 603 n.5 (emphasis added)). /6/ The court of appeals in the present case has gone counter to that admonition by treating the public record status of criminal history data "somewhere in the Nation" -- even if only in a county courthouse or public station -- as the decisive element in its "deference-driven, single-factor test" (App., infra, 48a (Starr, J., dissenting)). In essence, the court held that any person who has ever been arrested in a village that does not treat arrests as secret has no significant privacy interest, ever, in the fact of his arrest. b. In narrowly circumscribing the "privacy" interests relevant under FOIA, the court of appeals has not only acted inconsistently with this Court's teachings but also departed from the language and history of the statute itself. The court has also ignored the well-recognized and unique privacy concerns raised by centralized compilations of criminal and other data on individuals by government agencies. The statutory phrase that the court construed in this portion of its opinions was simply "personal privacy." The court observed that "(w)hat is encompassed by the 'personal privacy' language of FOIA is, of course, a question of legislative intent, but there is no suggestion in the legislative history of Exemption 7(C) that 'privacy' as used in the exemption has other than its ordinary meaning" (App., infra, 16a-17a). Yet the court has, we submit, given that statutory term a meaning that is far more restrictive than its ordinary usage. /7/ In common parlance, "privacy" is not limited to those matters concerning an individual that are officially confidential. The term "privacy" is defined as "the quality or state of being apart from the company or observation of others." Webster's Third New International Dictionary 1804 (1981). Thus, contrary to the "plain language" argument advanced by the court of appeals (App., infra, 16a-18a), neither the statute itself nor the Senate reporter's reference to "private affairs" supports the notion that a local government's failure to take steps to conceal information means that there is no privacy interest in it. In legal terminology, "privacy" has been applied to a wide range of interests protected by tort law and the Constitution. See generally W. Prosser & R. Keeton, The Law of Torts 849-869 (5th ed. 1984); Carey v. Population Services International, 431 U.S. 678, 688-689 (1977). It has been defined as "the individual's right to control dissemination of information about himself." A. Breckenridge, The Right to Privacy 1 (1970). It is often defined more simply as "the right to be let alone." E.g., W. Prosser & R. Keeton, supra, at 849 (quoting T. Cooley, Torts 29 (2d ed. 1888)). There is no reason to doubt that Congress intended, in FOIA, to reach the individual's privacy interest in information about himself that is not in fact known to the world at large, even if it is theoretically lawfully available to one who knows where to look. There has been widespread concern that privacy is, as a practical matter, threatened by the availability of compiled information in large, centralized government data banks, which offer ready access to records that may be "public" in some sense but would otherwise be wisely dispersed. See generally R. Smith, Compilation of State & Federal Privacy Laws v (1984-1985 ed.); Lautsch, Digest and Analysis of State Legislation Relating to Computer Technology, 20 Jurimetrics J. 201, 210-211 (1980). Numerous governmental entities have recognized the need to protect the subjects of such information against inappropriate disclosure. As noted by Judge Starr in dissent, for example, a "host of state laws" protect the very sort of criminal history compilations at issue here from disclosure (App., infra, 44a; see also R. Smith, supra, at 3-4). As Judge Starr also noted, the legislative history of the Privacy Act clearly evinces Congress's concern about the threat to privacy posed by compiled information. App., infra, 44a (citing H.R. Rep. 93-1416, 93d Cong., 2d Sess. 3, 6-9 (1974), reprinted in Staff of the Joint Comm. on Government Operations, 94th Cong., 2d Sess., Legislative History of the Privacy Act of 1974, Source Book on Privacy 296, 299-302 (Joint Comm. Print 1976)). Congress has also required, in connection with federal grants to state and local agencies to support the collection of criminal history information, assurance that "the security and privacy" of such information is maintained, and that it "shall only be used for law enforcement and criminal justice and other lawful pruposes." 42 U.S.C. 3789s(b) (emphasis added). /8/ The court of appeals erred in equating the "privacy" interest in information with official secrecy at every level of government where the information is maintained. An individual has a practical privacy interest in arrests and other incidents that occurred in the distant past, even if they are not officially confidential. If the information becomes available to "any person" (5 U.S.C. 552(a)(3)) through a single FOIA request to the FBI and no longer requires a search of courthouses and police blotters across the nation -- many not indexed by name -- the individual's life will be a good deal less private. /9/ c. The court of appeals' ruling also imposes novel and unworkable requirements on federal agencies. The FBI often will not know, without further inquiry, whether a particular rap sheet entry is reflected in local "public records." Even if the state agency that submitted an arrest record considers it confidential, for example, such a record may still be "public" at its original source. And the FBI would have no way of knowing, without a specific inquiry at the time of the FOIA request, whether particular information has been removed from the public record by the state or local government. The administrative burden imposed by this aspect of the court's opinion would be "substantial (if indeed not crippling)" (App., infra, 46a (Starr, J., dissenting)). /10/ A requirement that agencies ascertain, at the time of each FOIA request, the status of particular information under local law imposes a new obligation on agencies, which is to be found nowhere in FOIA itself. See generally NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-162 (1975) (condemning court-imposed requirement that agencies generate new records in order to respond to FOIA requests). But the court of appeals' analysis affords an agency no other way of protecting even the conceded privacy interest in information that is secret at all levels of government. Although the court suggested that the FBI might fulfill its obligation by referring the requester to the providing agency (App., infra, 26a), such a response would tell the requester that the subject "has an arrest record" -- incomplete yet damaging information that may be all the requester cares to know. /11/ While imposing such a dilemma on any agency is contrary to general FOIA principles and the policies of Exemption 6, doing so in the present case is particularly misguided, since it fails to take any account of Congress's special concern for law enforcement records and information, as reflected in Exemption 7(C). As noted above, Congress amended that exemption in 1986, to permit withholding when release of the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy" (new language emphasized). This change was made "with the avowed purpose of '* * * eas(ing) considerably a Federal law enforcement agency's burden in invoking (the exemption).'" See Irons v. FBI, 811 F.2d 681, 687 (1st Cir. 1987) (quoting 132 Cong. Rec. S16504 (daily ed. Oct. 15, 1986)). /12/ Rather than requiring the FBI to ascertain the status of records under local laws, the courts should allow it to make a practical assessment of a disclosure's "reasonably expected" impact on privacy interests, in light of pertinent factors such as the age and notoriety of the information requested and its potential for harm. Under this standard, the assessment made by the FBI in the present case -- as confirmed by the district court's de novo review -- should have been upheld. 2. The court of appeals made an even more radical departure from settled law in its treatment of the "public interest" side of the balance. Rather than engaging in the straightforward weighing of competing interests that the statute calls for, the court has "go(ne) AWOL" (App., infra, 30a (Starr, J., concurring)), asserting that it "cannot" make any assessment of the particular public interest in the disclosure of any specific information (App., infra, 38a). This analysis -- which the court stated (ibid.) would apply to Exemption 6 as well as Exemption 7(C) -- is inconsistent with Congress's expressed will and conflicts sharply with what had previously been the uniform practice of the courts of appeals. a. In Department of the Air Force v. Rose, supra, this Court reviewed the legislative history of Exemption 6 and concluded that Congress, in calling for judicial assessments of whether particular disclosures would constitute "unwarranted" invasions of privacy, intended "'* * * a balancing' of the private and public interests" (425 U.S. at 373; see Washington Post, 456 U.S. at 599). Although this Court has not previously had occasion to elaborate on the manner in which courts are to evaluate the "public interest" side of this balance, it had appeared self-evident, until the decision in the present case, that this inquiry entails an assessment of the degree to which the public interest will be furthered by the release of the particular information sought, not merely the invocation of an assumed but static "public interest" in the release of any information in the government's possession. The courts of appeals have therefore regularly made such assessments in the course of conducting the balancing of privacy and public interests for this purpose, and the ultimate decision whether to order disclosure has often turned, at least in part, on the weightiness of the public interest in disclosure of particular information. /13/ The court of appeals here rejected this approach to public interest analysis under FOIA, stating that it found the assessment of the public interest in particular cases "awkward()" and doubted its authority to make such "idiosyncratic determinations" (App., infra, 23a). /14/ But the difficulty of evaluating the public interest does not give the courts license to ignore Congress's instruction to engage in a meaningful balancing of the interests at stake, which inevitably includes an assessment of the public interest favoring disclosure of particular information. /15/ As the Senate report discussion of Exemption 6 states, "(i)t is not an easy task to balance the opposing interests, but it is not an impossible one either." S. Rep. 813, 89th Cong., 1st Sess. 3 (1965), quoted in Rose, 425 U.S. at 373 n.9. /16/ The court of appeals was not the first to observe that the public interest in disclosure of particular information may be difficult for the judiciary to measure. The court's concern about the awkwardness of judicial appraisals of the public interest was recognized -- and answered -- almost a century ago (Warren & Brandeis, The Right of privacy, 4 Harv. L. Rev. 193, 214 (1890) (footnote omitted)): The right to privacy does not prohibit any publication which is of public or general interest. In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest. There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law, -- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. See also, e.g., Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 757-761 (1985) (plurality opinion) (requiring courts to determine, for purposes for First Amendment law, whether particular publications are on matters of "public concern"); Connick v. Myers, 461 U.S. 138, 143 & n.5 (1983) (same); Rankin v. McPherson, No. 85-2068 (June 24, 1987), slip op. 6 (same); cf., e.g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979) (requiring courts to balance the public interests in particular cases in order to determine whether grand jury transcripts should be publicly released). The notion that courts "cannot" measure the public interest in disclosure of particular information and are therefore excused from that congressionally assigned task (App., infra, 38a) is thus a marked departure from traditional jurisprudence. /17/ b. As the dissent below noted, "there is meaning in the public-interest standard" (App., infra, 45a (Starr, J., dissenting)). There are ways -- rejected by the panel majority -- in which a court can give structure to this analysis and avoid the standardless inquiry that troubled the court here. One basic line of demarcation was suggested by this Court in Rose. As the Court noted in that case, "Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act 'to open agency action to the light of public scrutiny;'" (425 U.S. at 372 (quoting court of appeals opinion, 495 F.2d at 263)). As the Court has elsewhere elaborated, that "basic purpose" of FOIA is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Accordingly, several courts of appeals have indicated that the "public interest" side of the balancing under Exemption 6 is to be assessed in light of these "basic purposes" of FOIA. /18/ Such considerations are, as the dissent below indicates, directly pertinent to disclosure requests such as the one at hand: "Although there may be no public interest in disclosure of the FBI rap sheet of one's otherwise inconspicuously anonymous next-door neighbor, there may be a significant public interest -- one that overcomes the substantial privacy interest at stake -- in the rap sheet of a public figure or an official holding high government office" (App., infra, 45a (Starr, J., dissenting); cf. Warren & Brandeis, supra, 4 Harv. L. Rev. at 215-216 (making similar point)). Likewise, the age and type of offenses reflected in a rap sheet are "powerfully relevant" to a sensible ascertainment of whether there is any real "public interest" in disclosure (App., infra, 31a (Starr, J., concurring)). As the dissent below concluded, an assessment of these factors in the present case reveals that there was at most a "limited public interest" in the disclosure of the information sought (id. at 49a (Starr, J., dissenting)). /19/ The decision below, by refusing to evaluate the public interest in disclosures of particular information in light of the basic purposes of FOIA, conflicts with the decisions of the other courts of appeals cited above. As a result, moreover, it would permit -- virtually automatically -- the disclosure of arrest records, or any of a wide variety of personal records compiled by the federal government, about "one's otherwise inconspicuously anonymous next-door neighbor." /20/ The ruling, if followed, would also predictably lead to wide-scale use of FOIA by employers, credit bureaus, and others as a routine check on individuals, making the federal government, in the words of the dissent below, "the clearinghouse for highly personal information" (App., infra, 48a (Starr, J., dissenting)). This Court should grant certiorari in this case to correct the serious errors of the District of Columbia Circuit's analysis, and "restore stability and common sense to this vital area of our law" (App., infra, 66a). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LOUIS R. COHEN Deputy Solicitor General ROY T. ENGLERT, JR. Assistant to the Solicitor General LEONARD SCHAITMAN JOHN F. DALY Attorneys FEBRUARY 1988 /1/ We are not seeking review in this Court of the Exemption 3 holding. /2/ As the court of appeals noted (App., infra, 17a n.11), Exemptions 6 and 7(C) call for similar assessments, but the standards applied differ. Exemption 6, applicable generally, authorizes withholding if disclosure "would constitute a clearly unwarranted invasion of personal privacy" (5 U.S.C. 552(b)(6) (emphasis added)). Exemption 7(C), applicable only to law enforcement records, authorizes withholding if disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy" (5 U.S.C. (Supp. IV) 552(b)(7)(C) (emphasis added)). The district court found it "clear" that the records at issue met Exemption 7(C)'s threshold criterion of having been compiled for law enforcement purposes (App., infra, 56a). The court of appeals assumed arguendo that Exemption 7(C) applied (id. at 14a-15a). See also id. at 28a (Starr, J., concurring ("There can be no doubt that on its face the FOIA request here seeks 'law enforcement records or information.'"). /3/ According to the court of appeals, which apparently examined our in camera submission to the district court, "the offenses (if any) were 'minor' and occurred over thirty years ago" (App., infra, 16a). We neither confirm nor deny the accuracy of that statement, but our in camera submission is, of course, available for review by this Court. /4/ There are, moreover, initial indications that the opinion in this case is being noted by other courts and may indeed engender confusion in the development of the law in this area. See United States Dep't of the Air Force v. FLRA, No. 87-1143 (7th Cir. Jan. 27, 1988), slip op. 7 (agreeing with the court below that courts may not inquire into the public interest favoring disclosure of particular information); United States Dep't of Agriculture v. FLRA, No. 86-2579 (8th Cir. Jan. 15, 1988), slip op. 9 n.3 (noting but not passing on same proposition); see also Washington Post Co. v. United States Dep't of State, No. 84-5604 (D.C. Cir. Feb. 5, 1988), slip op. 21 (repeating assertion of decision below that there is only a "'low-level privacy interest in * * * records * * * availab(le) somewhere in the nation'"); notes 10 & 13, infra. /5/ As noted above, the panel assumed that this case is governed by Exemption 7(C) (App., infra, 14a-15a). Nevertheless, it relied on Exemption 6 precedents, and its approach would appear to apply under either exemption. The applicability of the decision below to cases under Exemption 6 as well as Exemption 7(C) enhances its "pernicious effect on personal privacy interests" (id. at 48a-49a (Starr, J., dissenting)). At the same time, the fact that the present case should indeed be governed by Exemption 7(C) (see id. at 28a (Starr, J., concurring)) makes the result below all the more troubling. The distinction between the standards of the two exemptions has always been "meaningful." FBI v. Abramson, 456 U.S. 615, 629-630 n.13 (1982); see also Department of the Air Force v. Rose, 425 U.S. at 378-379 n.16. It was made more so in 1986 when Congress amended Exemption 7(C) to permit withholding whenever release of the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy" (Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, Subtit. N, Section 1802(a), 100 Stat. 3207-48), thus easing the burden of law enforcement agencies in justifying the withholding of such records. The added burdens imposed on law enforcement agencies by the decision below (see pp. 19-22, infra) are thus especially inappropriate. /6/ The Court added that "(t)he public nature of information may be a reason to conclude, under all the circumstances of a given case, that the release of such information would not constitute a 'clearly unwarranted invasion of personal privacy'" (456 U.S. at 603 n.5 (emphasis added)). /7/ The court of appeals faulted as overboard our submission that, "if the release of the records causes any embarrassment or harm to a subject's reputation, then such release necessarily results in an 'invasion of personal privacy'" (App., infra, 18a). The court found our position "attractive" but unsupported by "the FOIA or its legislative history" (id. at 19a). The legislative history, however, squarely supports our position. "The limitation of a 'clearly unwarranted invasion of personal privacy' (in Exemption 6) provides a proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." H.R. Rep. 1497, 89th Cong., 2d Sess. 11 (1966) (emphasis added); see Washington Post, 456 U.S. at 599 (emphasizing the quoted language); id. at 601 (repeating the same language). We do not, of course, contend that all information whose disclosure would "harm the individual" is per se exempt from disclosure; such an argument would indeed "prove() too much" (App., infra, 19a). We do, however, emphatically contend -- contrary to the position of the court of appeals -- that harm to the individual resulting from the federal government's disclosure of information about him is a privacy interest that always deserves to be considered in the Exemption 6 of 7(C) balance, and that its significance turns on a realistic appraisal of the degree of harm that would be caused by disclosure, not on a reflexive insistence that all "public records" give rise to only a "low-level privacy interest." /8/ In the legislative history of that provision, Congress refered to "the unsettled and sensitive issues of the right of privacy and other individual rights affecting the maintenance and dissemination of criminal justice information." S. Conf. Rep. 93-349, 93d Cong., 1st Sess. 32 (1973). /9/ To be sure, this Court has construed the First Amendment to preclude the imposition of tort liability for "invasion of privacy" on those who publish truthful information gleaned from public records of court proceedings. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). But the apparently absolute right of the press to publish such information once in its possession is, we submit, more reason -- not less -- to be circumspect in making the federal government an additional source of information merely because it is publicly available "somehwere in the nation." The rationale of Cox Broadcasting is not -- as the court of appeals seemed to think (App., infra, 20a) -- that the public availability of information somewhere renders any remaining privacy interest in that information insignificant. Rather, this Court recognized that it was dealing with a "sphere of collision between claims of privacy and those of the free press," with legitimate interests to be considered on both sides (420 U.S. at 491). Congress has directed the courts also to consider the legitimate interests on both sides of the Exemption 6 or 7(C) balance. /10/ A subsequent decision of the court of appeals confirms that its approach to privacy interests under Exemptions 6 and 7(C) will make it essential for agencies to ascertain the "public record" status of requested information. In Ostrer v. FBI, No. 86-5445 (Jan. 19, 1988) (unpublished), a case involving FBI rap sheets, the court remanded for further consideration in light of its decision in the present case. In so doing, the court stated: "In order to evaluate the privacy interest, we need to know whether the information in the 'rap sheets' has been placed in the public domain by any local, state, or federal agency * * *." Slip op. 9 (emphasis added). /11/ In its opinion on rehearing, the panel majority attempted to turn this argument around, characterizing our assertion that referral of requests to the original sources is "tantamount to disclosure" as an admission that the information is the same, whether it comes from FBI rap sheets or local arrest records, and therefore that the issue of compilation is "immaterial" (App., infra, 41a (citing FBI v. Abramson, 456 U.S. 615, 624 (1982)). The majority erred, however, in its supposition that the form in which information is compiled or transferred is always irrelevant to FOIA analysis. Although this Court in Abramson held that "law enforcement" records do not lose their status as such for Exemption 7 purposes by virtue of being incorporated into other kinds of records, it distinguished the case of internal agency records, which can lose their exempt status under Exemption 5, 5 U.S.C. 552(b)(5), by virtue of inclusion in final agency decisions (456 U.S. at 630). In each instance, the court observed, the result is dictated by the purposes behind the particular exemption invoked (ibid.). For the reasons stated in the text, the purposes behind Exemptions 6 and 7(C) require that courts take into account the unique privacy concerns raised by large compilations of dispersed personal data. /12/ Section 1804(a) of the Freedom of Information Reform Act of 1986, 5 U.S.C. (Supp. IV) 552 note, expressly made these amendments applicable to pending cases. The court of appeals recognized the applicability of these provisions (App., infra, 14a). /13/ See, e.g., Columbia Packing Co. v. United States Dep't of Agriculture, 563 F.2d 495, 499 (1st Cir. 1977); Aronson v. United States Dep't of HUD, 822 F.2d 182, 185-186 (1st Cir. 1987); Committee on Masonic Homes v. NLRB, 556 F.2d 214, 220-221 (3d Cir. 1977); Core v. United States Postal Service, 730 F.2d 946, 948-949 (4th Cir. 1984); Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529-530 (6th Cir.), cert. denied, 469 U.S. 1034 (1984); Minnis v. United States Dep't of Agriculture, 737 F.2d 784, 786-787 (9th Cir. 1984), cert. denied, 471 U.S. 1053 (1985); Campbell v. United States Civil Service Comm'n, 539 F.2d 58, 62 (10th Cir. 1976); Cochran v. United States, 770 F.2d 949, 956 (11th Cir. 1985). Indeed, the District of Columbia Circuit has engaged in such analysis on many occasions. See, e.g., Senate of the Commonwealth of Puerto Rico v. United States Dep't of Justice, 823 F.2d 574, 588 (1987). The panel majority in fact recognized that "(p)rior cases of this circuit have purported to appraise and value the public interest in specific information sought" (App., infra, 37a (footnote omitted)), but apparently those cases now stand overruled. The court of appeals has subsequently reaffirmed its new position that "the phrase 'public interest' does not mean 'anything more or less than the general disclosure policies of the statute.'" Ostrer v. FBI, slip op. 8; accord United States Dep't of the Air Force v. FLRA, No. 87-1143 (7th Cir. Jan. 27, 1988), slip op. 7. /14/ One of the reasons cited by the court of appeals for its refusal to make such assessments is its inability to "foresee * * * how the information will eventually be used" and its conclusion that the purposes of the particular requester are irrelevant (App., infra, 38a; see also id. at 23a-26a). Although we agree with the court's view that the Exemption 6 or Exemption 7(C) balance does not vary from case to case depending on the identity of the requester, it is a far different proposition to say that the "public interest" side of that balance does not vary from case to case depending on what information is sought. Even if the nature and purposes of a particular request are legally irrelevant to analysis under Exemptions 6 and 7(C), a court can and should make an assessment of the public interest in the disclosure of particular information to "any person" (5 U.S.C. 552(a)(3)) on demand. /15/ The court of appeals went as far as speculating that the "public interest" may be so inherently vague a legal standard that it cannot be applied by the federal courts without exceeding consitutional limitations on the role of the judiciary (App., infra, 23a). Congress, however, has certainly assumed to the contrary; a LEXIS search reveals that this phrase occurs more than a thousand times in the present United States Code. /16/ The court of appeals went particularly far astray when it claimed (App., infra, 39a n.3; cf. id. at 25a & n.18, 39a & n.2) that its analysis was supported by FBI v. Abramson, 456 U.S. 615 (1982). Although this Court did state in Abramson that "Congress * * * did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis" (456 U.S. at 631 (footnote omitted)), the Court certainly did not mean to disparage case-by-case balancing in the interpretation of the phrase "unwarranted invasion of personal privacy" in Exemptions 6 and 7(C). Rather, as Judge Starr pointed out (App., infra, 32a-34a), this Court made the quoted statement after observing (456 U.S. at 623) that it was undisputed in Abramson that the requested disclosure would be an unwarranted invasion of personal privacy. The Court found case-by-case balancing to be inappropriate in determining whether the requested records were "compiled for law enforcement purposes" (5 U.S.C. 552(b)(7)), not in determining whether law enforcement records met the other requirements of Exemption 7. Indeed, it was just one week before deciding Abramson that this Court emphasized -- in a unanimous decision -- the vital importance of judicial balancing to proper application of FOIA's invasion-of-privacy exemptions. United States Dep't of State v. Washington Post Co., supra. /17/ The court of appeals did not claim any specific support in the language or legislative history of FOIA for its holding that courts should not measure the public interest favoring disclosure in particular cases. There is no reason whatever to suppose that Congress was as reluctant as the court of appeals to assign that task to federal judges in the invasion-of-privacy exemptions of FOIA. Ironically, the same court that was so adamant in this case about the limited or nonexistent capacity of federal judges as such to make assessments of the public interest has more recently issued a ringing defense of the capacity and perceived duty of federal judges to make -- as part of the Exemption 6 inquiry -- assessments of the likelihood that official disclosure of an Iranian official's status vis-a-vis U.S. citizenship will or will not lead to death or serious harm to that official within Iran. Washington Post Co. v. United States Dep't of State, No. 84-5604 (Feb. 5, 1988), slip op. 9-16; see, e.g., id. at 15 n.63 (quoting legislative history prasing "'wisdom and good judgment'" of the judiciary and indicating that judiciary is to be "'trusted to act in the public interest'"). /18/ See Columbia Packing Co. v. United States Dep't of Agriculture, 563 F.2d at 499; Committee on Masonic Homes v. NLRB, 556 F.2d at 220; Minnis v. United States Dep't of Agriculture, 737 F.2d at 787; Cochran v. United States, 770 F.2d at 956; see also Comment, The Freedom of Informtion Act's Privacy Exemption and the Privacy Act of 1974, 11 Harv. C.R.-C.L. L. Rev. 596, 606-610 (1976) (proposing such a test). The District of Columbia Circuit itself had previously suggested that "the public interest considerations" supporting disclosure in particular cases, even if not "limited to those at the core of the Act," at least varied from case to case and were strongest when a grant of the FOIA request would serve the Act's basic purpose rather than "the more general public interest in disclosure." Ditlow v. Shultz, 517 F.2d 166, 172 (1975); see Arieff v. United States Dep't of the Navy, 712 F.2d 1462, 1468 (1983). According to the decision below, however, the more general interest is all that a court may consider. /19/ The court below maintained that "the government is utterly incapable of explaining to us why the information sought here does not serve the Act's 'core' policy" (App., infra, 38a). We respectfully disagree. Public disclosure of the criminal records (if any) of Charles Medico would not serve the Act's core policy because Charles Medico is not himself a public official, and, although he is alleged to have had dealings with a former public official, no Medico "financial crime" records that arguably might bear on that official's discharge of the functions of government exist. In the absence of any other alleged connection of Charles Medico to the functioning of our government, it seems quite plain that nothing in his criminal records (if any) would aid an informed citizenry in the exercise of democratic political choices. Likewise, we would indeed "seriously argue()" in an appropriate case "that as a matter of law an 'informed citizenry' should have available to it arrest records two years old but not five or ten" (ibid.). A court can draw a line even when it is not a bright line or the only possible line. /20/ The dissent below summarized information that we supplied in our petition for rehearing concerning such matters (App., infra, 48a (Starr, J., dissenting)): Veterans Administration and Social Security records include birth certificates, marriage licenses, and divorce decrees (which may recite findings of fault); the Department of Housing and Urban Development maintains data on millions of home mortgages, that are presumably "public records" at county clerks' offices. APPENDIX