February 27, 1996
Oliver Garcia, Esq.
Williams & Connolly
725 Twelfth Street, NW
Washington, DC 20005
Re: Freedom of Information Act Appeal
(Your January 24, 1996 Letter)
Dear Mr. Garcia:
On December 21, 1995, you filed a Freedom of Information Act (FOIA)
request with this office. You requested "[r]ecords that
reflect or relate to legal proceedings of which xxxxxxxxx has
been the subject individually in the course of the discharge of
his duties at the NCUA." Richard Schulman, NCUA's FOIA Officer,
denied the request pursuant to exemption 6 of the FOIA on January
5, 1996. We received your January 24 appeal on January 29, 1996.
Your appeal is denied pursuant to exemption 6 of the FOIA as
explained below.
Exemption 6
Exemption 6 of the FOIA permits NCUA to withhold all information
about an individual in "personnel and medical files and similar
files" where the disclosure of such information "would
constitute a clearly unwarranted invasion of personal privacy."
5 USC 552(b)(6). The courts have held that all information which
applies to a particular individual meets the threshold requirement
for exemption 6 protection. United States Department of
State v. Washington Post Co., 456 U.S. 595 (1982). Records
of legal proceedings concerning xxxxx and the discharge of
his duties at NCUA clearly meet the threshold for exemption 6
protection. You state in your appeal that exemption 6 cannot
apply to claims that are already a matter of public record. In
United States Department of Justice v. Reporters Committee,
489 U.S. 749 (1989), the court held that there can be a strong
privacy interest in certain records even where the information
may have been at one time public. Such records can be withheld
from disclosure pursuant to exemption 6 of the FOIA. We believe
that xxxxxx has a privacy interest in records of the legal proceedings
requested, even though the records may be available to the general
public through some less accessible source.
Once a privacy interest is established, application of exemption
6 requires a balancing of the public's right to disclosure against
the individual's right to privacy. Department of the Air Force
v. Rose, 425 U.S. 352, 372 (1976). The public interest in
the information is to "shed light on an agency's performance
of its statutory duties." Reporters
Committee at 773. The burden of establishing that disclosure
would serve the public interest is on the requester. Carter
v. United States Department of Commerce, 830 F.2d 388, 391
(D.C. Cir. 1987). The court in Reporters Committee held
that the interest of the individual FOIA requester is not to be
considered in the balancing. The privacy interest of the individual
is to be balanced against the public interest generally in disclosure.
489 U.S. at 771-772. We concede that there may be some public
interest to balance against privacy interest. There
is a public interest in how agency officials are doing their jobs.
However, the caselaw interpreting exemption 6 clearly favors
non-disclosure in the balancing test. Ripskis v. HUD,
746 F.2d 1, 3 (D.C. Cir. 984). Although courts have held that
proven wrongdoing of a serious and intentional nature by a high
level government official is of sufficient public interest to
outweigh the privacy interest of the official (see Cochran
v. United States, 770 F.2d 949, 956-57 (11th Cir. 1985)),
courts have also held that any general public interest in mere
allegations of wrongdoing does not outweigh an individual's privacy
interest in unwarranted association with such allegations (see
McCutchen v. HHS, 30 F.3d 183, 187-189 (D.C. Cir. 1994).
There have been no findings of wrongdoing by .
We believe the balance of xxxxx privacy interest against any
public interest is clearly in favor of his privacy. In order
to fully protect xxxxx privacy interest, all responsive records
are withheld pursuant to exemption 6. Release of redacted records
would not provide adequate privacy protection. Since the records
requested only concern , and the records may be available
from some other source, once a portion of the records are disclosed,
they could be located elsewhere, and all privacy protection would
be lost. Courts have held that redaction is a pointless exercise
and would defeat privacy protection where the documents requested
concern the privacy interests of one or a very limited number
of individuals. Alirez v. NLRB, 676 F.2d 423, 427 - 428
(10th Cir. 1982).
Vaughn Index
In addition to appealing the denial of your FOIA request, you
asked for a list of responsive records covered by the request
and a specific indication of which records will be withheld because
of a particular exemption. This is typically known as a Vaughn
index. With regard to the timing of the creation of a Vaughn
Index, it is well settled that a requester is not entitled to
a Vaughn index during the administrative process. See e.g.
Schaake v. IRS, No. 91-958, slip op. at 7-8 (S.D. Ill.
June 23, 1992). The only statutory requirement applicable to
an administrative agency under FOIA is that the requester be informed
of the decision to withhold along with the underlying reasons.
See 5 USC 552(a)(6)(A)(i) and Judicial Watch, Inc.
v. Clinton, 880 F.Supp. 1, 11
(D.D.C. 1995). Courts do not generally require the submission of a Vaughn index prior to the time at which a dispositive motion is filed (normally defendant agency's motion
for summary judgment). Efforts to compel a Vaughn index prior
to that time are typically denied as premature. Miscavige
v. IRS, 2 F3d 366, 369 (11th Cir. 1993). We note further
that identifying the records requested in a Vaughn index would
defeat the use of the privacy exemption. In order to protect
xxxxx privacy interest, we cannot identify the specific records
requested.
Pursuant to 5 U.S.C. 552(a)(4)(B), you may seek judicial review of this determination by filing suit to enjoin NCUA from withholding the documents you requested and to order
production of the documents. Such a suit may be filed in the
United States District Court in the district where you reside,
where your principal place of business is located, the District
of Columbia, or where the documents are located (the Eastern District
of Virginia).
Sincerely,
Robert M. Fenner
General Counsel
GC/HMU:bhs
96-0132
SSIC 3212