FOIA and personal information

From Cyberlaw

Personal information is exempted from the right to access public information pursuant to the FOIA Exeption 6 (according to 5 U.S.C. § 552b.6 the exeption covers “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”).

But, then, does the fact that a file is in the digital form matter? How does the form of the carrier influence the form of protection? The issue constituted a dispute in which a Court of Appeals assumed a different position than the District Court, to have its decision finally reversed by the Supreme Court (U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749 (1989)). The controversy arose when a CBS reporter and the Reporters Committee for Freedom of the Press sought an information, “insofar as it contained ‘matters of public record.’", enclosed in a “rap sheet” (computerized criminal-history summary) held by the FBI for Charles Medico. Respondents maintained that Medico's family company had been identified as a legitimate business dominated by organized crime figures, and it allegedly had obtained defense contracts as a result of an improper arrangement with a Congressman. Therefore, the argument went on, a record of crimes by Medico would be a matter of public interest. Petitioner Department of Justice responded that it had no record of financial crimes and refused to confirm or deny whether it had any information concerning Medico’s record of nonfinancial crimes. The District Court had granted summary judgment for the Department of Justice, holding, among other things, that the rap sheet was protected by the law enforcement exception to FOIA (Exemption 7, which excludes information compiled for law enforcement purposes "to the extent that the production of such [materials] . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.") The Court of Appeals reversed, refocusing to the Exception 3 (unwarranted invasion of personal privacy). It held that “district courts should limit themselves in this type of case to making the factual determination whether the subject's legitimate privacy interest in his rap sheet is outweighed by the public interest in disclosure because the original information appears on the public record.” (U.S. Dept. of Justice v. Reporters Committee, 489 U.S. 749, 749 (1989)). Undisputable was that the information comprising rap sheets was public, though not easily findable. And the Supreme Court had stated earlier that "[T]he interests in privacy fade when the information involved already appears on the public record" (Cox Broadcasting Corp. v. Cohn, 420 U.S., at 494-495). In the Medico case, however, the issue at question was a digital compilation, not single records. And there had been a track of the Supreme Court jurisprudence, according to which digital compilations were particularly capable of infringing privacy. Especially in Whalen v. Roe, 429 U.S. 589 (1977), a case which concerned the question whether New York might have recorded, in a centralized computer file, names and addresses of persons who had obtained certain prescription medicines for which there was both a lawful and an unlawful market, the Justice Brennan, in his concurring opinion, remarked that “The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information” (even though in the particular situation of the case at dispute the scheme was accepted as respecting enough individual's interest in privacy), Id., at 607. In Medico the Court followed the argument that much broader protection was attributed to compilations of personal records than raw, publicly available, paper data (“the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information. Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information (…) The privacy interest in a rap sheet is substantial. The substantial character of that interest is affected by the fact that in today's society the computer can accumulate and store information that would otherwise have surely been forgotten long before a person attains age 80, when the FBI's rap sheets are discarded”, Id., at 607). Consequently, the Court proclaimed that “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 governmental files but that reveals little or nothing about an agency's own conduct (…) Where, as here, the subject of a rap sheet is a private citizen and the information is in the Government's control as a compilation, rather than as a record of what the Government is up to, the privacy interest in maintaining the rap sheet's "practical obscurity" is always at its apex while the FOIA-based public interest in disclosure is at its nadir.”, Id., at 750. That is why the majority held as a categorical matter (Justices Blackmun and Brennan dissented at that point) that a third party's request for information on a private citizen “can reasonably be expected to invade that citizen's privacy, and that when the request seeks no "official information" about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is "unwarranted."”, Id., at 750. That logics, extending privacy protection of public information proportionally to how technology facilitates access, is called practical obscurity theory.

Another question is whether individuals can invoke the Privacy Act to claim that freedom of information requests on records pertaining to them are absolved from disclosure on the basis of Exception 3 (matters exempt from disclosure by statute). The U.S. Court of Appeals for the District of Columbia Circuit decided on that matter in Greentree v. Customs Service, 674 F. 2d 74 (1982). It denied the argument that information protected by the Privacy Act is automatically removed from public availability pursuant to Exception 3, even though in two previous appellate court rulings this government argument was sustained (Terkel v. Kelly, 599 F. 2d 214 (1979) and Painter v. Federal Bureau of Investigation, 615 F. 2d 689 (1980)). The judge in Greentree asserted that Congress struggled to hold separate the Privacy Act and FOIA. Because the records in the given case were contained in the Investigations Record System, declared to be exempt from the Access provisions of the Privacy Act, and the FOIA request was submitted by the individual concerned in that record, the only potentially available way for the Customs Service to block access to the information was, according to the judge, Exemption 7 (law enforcement exception), but the government would have to prove that all the requirements for taking advantage of the exemption be applicable to the situation.