Third-Party Requests for INS File Information

U.S. Department of Justice

Office of Information and Privacy

Telephone: (202) 514-3642

Washington, D.C. 20530

May 10, 1996

MEMORANDUM FOR THE ATTORNEY GENERAL

THROUGH:	The Deputy Attorney General

FROM:	Richard L. Huff Daniel J. Metcalfe Co-Directors Office of Information and Privacy

SUBJECT:	Third-Party Requests for INS File Information

You asked that the Department give guidance to INS about the proper handling of public and press requests for certain items of information maintained in Immigration and Naturalization Service (INS) files.

Such requests might be made either under the Freedom of Information Act or less formally by members of the news media through public affairs channels. The Offices of Public Affairs (PAO), Legislative Affairs (OLA), and Information and Privacy (OIP), and INS, have agreed on a proposed approach for responding to requests for such information, on a categorical basis, which is reflected in the accompanying draft memorandum from Public Affairs Director Carl Stern to INS. If you agree with this recommendation, PAO will issue this guidance to INS.

INS's Past Practices.

INS has no formal policy on this subject, but in some of its past training programs it has stated to its employees that two types of information should routinely be disclosed to third parties upon request:

• Certain "A-File" information on aliens and U.S. citizens (port of entry and departure, date of arrival and departure, period and/or class of admission, visa classification or symbol, U.S. citizenship or permanent resident status, and date and place of naturalization); and

• Federal employee information (name, past and present salary, grade, and duty station).

Summary.

We have concluded, and the accompanying PAO memorandum provides, that:

(1) the A-File information pertaining to citizens and those persons lawfully admitted for permanent residence (LPRs) ordinarily must be withheld as a matter of law -- except where disclosure would reflect agency performance;

(2) the A-File information pertaining to others (noncitizens who are not LPRs) ordinarily can, and as a matter of policy and practicality also ordinarily should, be withheld -- again, except

(a) where disclosure would reflect agency performance, or

(b) where the request concerns whether a noncitizen/nonLPR was unlawfully employed by a high-level public official or a candidate for high office;⁽¹⁾ and

(3) the federal employee information must be disclosed.

The FOIA's Requirements.

An analysis of this subject should begin by considering whether the information in question is required to be disclosed under the Freedom of Information Act, 5 U.S.C. § 552. The relevant FOIA exemption is Exemption 6, which permits withholding information "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). This exemption requires a balancing of the individual's interest in personal privacy against the public's interest in disclosure. See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976).

To strike this balance, it first must be determined whether a protectible privacy interest exists in the information in question. See, e.g., Schell v. HHS, 843 F.2d 933, 938 (6th Cir. 1988). The courts have held that almost all information about a living individual implicates a privacy interest. See, e.g., United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) ("[B]oth the common law and the literal understanding of privacy encompass the individual's control of information concerning his or her person."). Moreover, information need not be embarrassing to qualify for Exemption 6 protection. See, e.g., United States Dep't of State v. Washington Post Co., 456 U.S. 595, 600 (1982) (citizenship status); National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (home addresses of federal retirees), cert. denied, 494 U.S. 1078 (1990).

The only public interest in disclosure recognized by the Supreme Court is that which "sheds light on an agency's performance of its statutory duties." Reporters Committee, 489 U.S. at 773. In this context, the Supreme Court has held:

[the FOIA's] basic policy of "'full agency disclosure unless information is exempted under clearly delineated statutory language,'" indeed focuses on the citizens' right to be informed about what their government is up to. Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency's own conduct.

DOD v. FLRA, 114 S. Ct. 1006, 1013 (1994) (quoting Reporters Committee, 489 U.S. at 773, quoting in turn Rose, 425 U.S. at 360-61).

These principles lead to the conclusion that A-File information about all persons, citizens and noncitizens alike, ordinarily should be protectible under FOIA Exemption 6 -- except when disclosure of such personal information would reflect a matter of agency performance, such as by revealing possible agency misconduct.⁽²⁾ See, e.g., Stern v. FBI, 737 F.2d 84, 93-94 (D.C. Cir. 1984) (personal privacy interest overridden under exceptional circumstance of official wrongdoing). This is so even for information in an A-File pertaining to a naturalization process, which might be a public event. Reporters Committee, 489 U.S. at 762, 764 (establishing "practical obscurity" standard for items of information such as criminal convictions, based upon the rationale that if they "were 'freely available,' there would be no reason to invoke the FOIA to obtain access to" them).

The Privacy Act's Requirements.

Wherever an A-File pertains to a citizen or an LPR (category #1 above), the provisions of the Privacy Act apply to that file, making nondisclosure of FOIA-exempt information mandatory. 5 U.S.C. § 552a(a)(2) (defining "individual" as "a citizen of the United States or an alien lawfully admitted for permanent residence"). Where the Privacy Act applies, it regulates an agency's disclosure of personal information to third parties and prohibits an agency from making a discretionary disclosure of exempt information in response to a FOIA request. 5 U.S.C. § 552a(b)(2) (limiting exception to Privacy Act's disclosure prohibition to cases in which disclosure is "required under section 552 of this title [FOIA]") (emphasis added); DOD v. FLRA, 114 S. Ct. at 1016 (holding disclosure of federal employee home addresses to be prohibited by Privacy Act where such information is protectible under FOIA's Exemption 6).

Only in the exceptional case in which disclosure of a Privacy Act-protected file reflects a matter of agency performance, and therefore is required by the FOIA, would the Privacy Act not prohibit disclosure.

Discussion.

FOIA case law affords persons who are not citizens or LPRs (category #2 above) the same degree of privacy protection as citizens under Exemption 6. Shaw v. United States Dep't of State, 559 F. Supp. 1053, 1067 (D.D.C. 1983); see, e.g., United States Dep't of State v. Ray, 502 U.S. 164 (1991) (applying traditional analysis of privacy interests under FOIA to Haitian nationals); Hemenway v. Hughes, 601 F. Supp. 1002, 1006 (D.D.C. 1985) (according Exemption 6 protection to citizenship of foreign journalists). However, because such persons are not covered by the Privacy Act, it is possible to make a discretionary disclosure of information about noncitizens/non LPRs.

In the past, the Department has not discriminated between persons based on their citizenship status under the FOIA and has not made such discretionary disclosures. However, PAO has identified a strong need for the Department to have a mechanism to make such disclosures in one exceptional circumstance. Specifically, under this proposal, the Department would exercise its discretion to disclose A-File information in all cases involving a question of whether a noncitizen/nonLPR was lawfully employed by a high-level public official or a candidate for high office. Accordingly, the attached PAO memorandum to INS provides for the making of such discretionary disclosures on administrative appeal.⁽³⁾

Lastly, with regard to the federal employee information in question, it is well established that it is not exempt under the FOIA and that all of it must be disclosed. See, e.g., Core v. United States Postal Serv., 730 F.2d 946, 948 (4th Cir. 1984) (no substantial invasion of privacy found in information identifying successful federal job applicants); National W. Life Ins. Co. v. United States, 512 F. Supp. 454, 461 (N.D. Tex. 1980) (no expectation of privacy in names and duty stations of Postal Service employees); see also 5 C.F.R. § 293.311 (1995) (OPM regulation requiring disclosure of names, titles, grades, salaries, and duty stations of federal employees).

Communicating This Policy to Congress and the Media.

OLA advises that once you approve issuance of this proposed policy, it will work with INS Congressional Affairs to advise the House and Senate Judiciary and Government Affairs/Reform Committees. INS will include a fact sheet on the policy in its weekly packet of information distributed on the Hill and will specifically advise any other interested offices.⁽⁴⁾

PAO advises that it will inform members of the media as requests are received.

Recommendation: that you approve the issuance of the attached guidance from PAO to INS.

Approve Janet Reno

Date: June 21, 1996

Disapprove _______________

Other_____________

Attachment

____________________

1. Disclosures in such cases, while not required by the FOIA, are not prohibited by the Privacy Act, which covers only citizens and LPRs, and we would disclose the information in such cases as a matter of discretion. Unlike all of the other determinations, which would be made by INS, this discretionary disclosure action would be taken by OIP on administrative appeal, with a provision for prompt transmittal and consideration of time-sensitive appeals from the news media.
2. In the context of INS's A-Files, such an unusual case would be one in which there is an objectively reasonable concern that INS has improperly handled a matter -- including a case involving an allegation of improper preferential agency treatment of the employee of a high-level public official.
3. INS stresses that having its district office FOIA personnel make a new threshold determination of citizen/LPR/noncitizen status at the initial level would be problematic.
4. OLA advises that the Department's authorizing committees likely will support this proposed policy.

Go to: OIP's FOIA Page // DOJ FOIA Page // DOJ Home Page