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)….”
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.