One Step Too Far? What to Do With Personal Information Under the Freedom of Information Act


The Freedom of Information Act creates a regulatory mechanism allowing private individuals to request information from the Federal Government. Under 5 U.S.C. §552(a):

“Each agency shall make available to the public information as follows…descriptions of its central and field organization…statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available…rules of procedure…[and] substantive rules of general applicability.”

Freedom of Information Act requests are denied only if the information requested falls under one of the nine exemptions listed in the Act. In particular, 5 U.S.C. 552(b)(6) (affectionately known by yours truly as “Exemption 6”) centers on precluding disclosure of information that infringes on personal privacy. “This section does not apply to matters that are….personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy….” If the disclosure may infringe on the privacy of individuals, the court must balance that invasion with the value of the information to the public.

In its landmark ruling on the privacy exemptions, the Supreme Court in U.S. Dept. of Justice v. Reporter’s Comm. for Freedom of the Press stated that the information requested must reveal what the government is up to constitute a valid public interest. The Court held:

“…As we have repeatedly stated, Congress ‘clearly intended’ the FOIA to ‘give any member of the public as much right to disclosure as one with a special interest [in a particular document]…[but] that purpose…is not fostered by disclosure of information…accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.”

Basic translation—you can’t request information about private individuals from the agency for your own private uses, be they commercial or otherwise. But this raised an interesting question—what if the information did not directly reveal government activity but would allow for additional research?

Ray: The Supreme Court Declines to Rule

The typical example arises when a request seeks the names or contact information of individuals who would be able to provide additional information relating to the government activity.  The names and addresses do not reveal anything about the government, but may allow for interested members of the public to contact those individuals.

In U.S. Dept. of State v. Ray, the Supreme Court confronted such a question, but declined to lay out a rule as to “derivative use” of information. Specifically, the Court held that “There is no need to adopt such a rigid rule [on derivative use]…because there is nothing in the record to suggest that a second series of interviews with the already-interviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced…”

The individuals in that case (Haitian refugees) had already been interviewed, and the findings of those interviews were released as part of the disclosure, so the Court did not feel it necessary to address the broader question of whether such a use would be cognizable.

Justice Scalia concurred in part and addressed the issue head on.  He noted that it did not make sense to allow derivative use on one side of the balance (i.e. to consider the effects of the individuals being contacted as an invasion of their privacy) but not the other. However, he insisted that derivative use should not be permissible with respect to either the privacy and public considerations, stating:

“…[S]ince derivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together…the Court should have been consistent in its abstention…[where] such matters as the “retaliatory action that might result from a renewed interest in [the interviewees’] aborted attempts to emigrate,” and “the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports.”…is unnecessary to the decision since…each of the unredacted documents requested by respondents would disclose that a particular person had agreed, under a pledge of confidentiality, to report to a foreign power concerning the conduct of his own government.”

The Split: D.C. vs. the World

While no court appears to have categorically rejected the derivative use to evaluate the public interest, many circuits have been skeptical of its application, mostly in line with the majority (and with part of Scalia’s dissent) in Ray.  See Union Leader Corp. v. Dept. of Homeland Security (1st Circuit); Long v. OPM (2nd Circuit); Lahr v. Nat’l Trans. Safety Bd. (9th Circuit); and Sheet Metal Workers v. US Air Force (10th Circuit).

The D.C. Circuit, however, has struck a different path, not only allowing derivative use, but giving it a full-throated endorsement.  In Am. Civil Liberties Union v. U.S. Dept. of Justice, Judge Garland wrote that the Supreme Court’s decision not to rule on the derivative use theory left the circuit’s case law intact.

He traced Justice Scalia’s logic but arrived at the opposite conclusion, noting that without the application of derivative use, the agency would not be able to invoke the privacy exemption at all because the disclosure of personal information did not directly reveal anything inherently embarrassing, noting that “…[I]f we may not consider derivative use in determining the impact of disclosure on the public interest side, we also may not consider it in determining disclosure’s impact on privacy interests. And without derivative use, the Department would fail to meet the threshold” to invoke the exemption (because there would be no invasion of privacy)….”

The Future

While the large weight of authority seems to stack up against its approach, it is notable that the D.C. Circuit typically hears more of these cases than other circuits. That may give the Supreme Court something to consider if it finally decides to rule on the issue.

Waive after Waive: Can the Government Waive a Challenge to Fourth Amendment Standing?

Background: Not All Standing is Done on the Same Legs

The most familiar idea of “standing” is based in Article III and is about whether someone can participate in the case at all. However, the term “standing” has attached itself to a narrower issue within Fourth Amendment law, despite then-Justice Rehnquist’s misgivings in Rakas v. Illinois.

Fourth Amendment standing is shorthand for the requirement that in a motion to suppress evidence from an unconstitutional search and seizure, the defendant must show that the search violated the defendant’s own personal rights of privacy, liberty, or possession. A defendant lacks Fourth Amendment standing if they attempt to suppress evidence based on the violation of someone else’s rights, for example, when a search of a car one does not own uncovers a gun that one, likewise, cannot lay claim to—the move not permitted in Rakas.

It is the responsibility of the government to bring a challenge to a defendant’s Fourth Amendment standing, but what happens when it does not do so at the district level? Is it waived in any future proceedings?

The Split

Two circuits have held that the government does not waive Fourth Amendment standing issues if it fails to raise them in district court: the First Circuit and the Eighth Circuit. The Eighth Circuit case on point, United States v. Rodriguez-Arreola, clearly states that the government does not waive a lack of Fourth Amendment standing based on a previous case pertaining to Article III standing, surely causing Chief Justice Rehnquist to spin uncontrollably in his grave:

The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail…(“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”).

On the other hand, seven circuits hold that the government does in fact waive Fourth Amendment standing challenges if it fails to raise them in district court, though some circuits are more lenient than others. This majority position is rooted in the idea that just because the word “standing” is involved, it does not implicate Article III jurisdictional issues—it views Fourth Amendment standing as simply shorthand for the substance of the Fourth Amendment.

Most of these circuits (namely, the Third, Fifth, Seventh, Tenth, and Eleventh) hold that the government may not raise an issue of Fourth Amendment standing for the first time on appeal. If the government fails to challenge Fourth Amendment standing on the district level, it amounts to a complete concession on the issue by the government.

The Ninth Circuit, in United States v. Paopao, gives the government some wiggle room, allowing challenges to Fourth Amendment standing to be raised for the first time on appeal. It makes clear in United States v. Ewing, however, that failure to place a challenge to Fourth Amendment standing in the appellate brief only to bring it up at oral argument is not a valid move, and amounts to a waiver of the challenge.

The latest circuit to join the waive-friendly bunch is the Sixth. United States v. Noble leans toward the Ninth Circuit’s holding, though it is not so lenient. The Sixth Circuit first criticizes the approach of the First and Eighth Circuits, noting:

“Fourth Amendment standing is akin to an element of a claim and does not sound in Article III. The government, like other litigants, therefore, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”

Later, the Sixth Circuit lays out its own approach to waivability:

“[W]e would allow the government to raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would “seriously affect…the fairness, integrity or public reputation of judicial proceedings.” …However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.”

Looking Forward

While the Supreme Court has released opinions concerning Fourth Amendment standing, it has not explicitly stated whether the government waives the issue if it fails to bring it up in district court. Considering the precedent of Rakas, if the right mix of criminal procedures twists and turns its way up to the highest Court, it would not be unreasonable to wager on the path chosen by most circuits today. For what it’s worth, however, this blogger would like to see a reexamination of the general idea that a defendant cannot acquire Fourth Amendment standing without an interest in the property searched, especially when that unconstitutional search specifically targeted that defendant.