February/March 2009
Second Circuit Affirms Privacy Protections of FOIA Exemptions 6 and 7(C)
Holland & Knight Newsletter
In 2002 John Walker Lindh, the so-called “American Taliban,” was sentenced to prison for various crimes, including aiding the Taliban in Afghanistan. Since his sentence began, Lindh has filed at least one petition with the Office of the Pardon Attorney (OPA) of the Department of Justice (DOJ) seeking a reduction in his 20-year prison sentence.
In January 2006, the Associated Press (AP) submitted a Freedom of Information Act (FOIA) request to the OPA for copies of the petition. The OPA denied the request, claiming that the petition was exempt from disclosure pursuant to Exemptions 6 and 7(C) of the FOIA. Following an unsuccessful administrative appeal, AP brought suit in the Southern District of New York claiming that the FOIA exemptions – based on privacy protections – did not apply to Lindh’s petition because the public interest in understanding the circumstances surrounding Lindh’s detention, plea and conviction, outweighed the importance of protecting private information relating to Lindh contained in his petition.
The district court denied AP’s argument and AP appealed to the Second Circuit. That court, in Associated Press v. U.S. Dept. of Justice, upheld the Southern District, and made it clear that to overcome Exemptions 6 and 7(C)’s privacy concerns, the FOIA applicant needed to make a significant showing that the material sought implicated governmental operations.
While FOIA seeks to implement “a general philosophy of full agency disclosure,” the Second Circuit held, the statute aims to maintain a balance between “the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” There are nine exemptions from the general rule of disclosure. Exemptions 6 and 7(C), the exemptions cited by the OPA in Associated Press, are directed at protecting the privacy of personal information contained in government records. Exemption6 protects “personal and medical files… the disclosure of which would clearly constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(6). Exemption 7(C) protects records compiled for law enforcement purposes “to the extent that the production of such … information … could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(7)(C).
The question in Associated Press was whether Lindh’s privacy interests outweighed the public interest that would be served by the disclosure of Lindh’s sentence reduction petition. The Second Circuit concluded that Lindh’s privacy interest was clearly cognizable, in part because his petition required him to provide personal information such as his social security number, his criminal record, a detailed account of the circumstances surrounding his offense and a detailed explanation of why his clemency request should be granted. The court determined that AP bore the burden of establishing that the disclosure of Lindh’s personal information served a public interest cognizable under the FOIA – in this case, whether the information “contribute[d] significantly to [the] public understanding of the operations or activities of the government.”
The Second Circuit upheld the DOJ’s applications of Exemptions 6 and 7(C) because the DOJ had submitted a declaration that none of the reasons Lindh gave to justify reduction of his 20-year sentence [had] “anything to do with any alleged government misconduct … and [did] reveal what the ‘government is up to.’” Moreover, AP was not in a position, and did not have facts, to assert that the DOJ’s declarations were in bad faith; nor was AP able to show how Lindh’s petition, if containing only private personal information, would in any way bear on governmental conduct.
Since it was conceded by both sides that there was a significant privacy interest implicated in Lindh’s petition, and in light of the court’s belief that AP failed to show how the information bore on the workings of government, the Second Circuit affirmed the district court’s holding that Lindh’s petition was exempt from disclosure.
In January 2006, the Associated Press (AP) submitted a Freedom of Information Act (FOIA) request to the OPA for copies of the petition. The OPA denied the request, claiming that the petition was exempt from disclosure pursuant to Exemptions 6 and 7(C) of the FOIA. Following an unsuccessful administrative appeal, AP brought suit in the Southern District of New York claiming that the FOIA exemptions – based on privacy protections – did not apply to Lindh’s petition because the public interest in understanding the circumstances surrounding Lindh’s detention, plea and conviction, outweighed the importance of protecting private information relating to Lindh contained in his petition.
The district court denied AP’s argument and AP appealed to the Second Circuit. That court, in Associated Press v. U.S. Dept. of Justice, upheld the Southern District, and made it clear that to overcome Exemptions 6 and 7(C)’s privacy concerns, the FOIA applicant needed to make a significant showing that the material sought implicated governmental operations.
While FOIA seeks to implement “a general philosophy of full agency disclosure,” the Second Circuit held, the statute aims to maintain a balance between “the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” There are nine exemptions from the general rule of disclosure. Exemptions 6 and 7(C), the exemptions cited by the OPA in Associated Press, are directed at protecting the privacy of personal information contained in government records. Exemption6 protects “personal and medical files… the disclosure of which would clearly constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(6). Exemption 7(C) protects records compiled for law enforcement purposes “to the extent that the production of such … information … could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §552(b)(7)(C).
The question in Associated Press was whether Lindh’s privacy interests outweighed the public interest that would be served by the disclosure of Lindh’s sentence reduction petition. The Second Circuit concluded that Lindh’s privacy interest was clearly cognizable, in part because his petition required him to provide personal information such as his social security number, his criminal record, a detailed account of the circumstances surrounding his offense and a detailed explanation of why his clemency request should be granted. The court determined that AP bore the burden of establishing that the disclosure of Lindh’s personal information served a public interest cognizable under the FOIA – in this case, whether the information “contribute[d] significantly to [the] public understanding of the operations or activities of the government.”
The Second Circuit upheld the DOJ’s applications of Exemptions 6 and 7(C) because the DOJ had submitted a declaration that none of the reasons Lindh gave to justify reduction of his 20-year sentence [had] “anything to do with any alleged government misconduct … and [did] reveal what the ‘government is up to.’” Moreover, AP was not in a position, and did not have facts, to assert that the DOJ’s declarations were in bad faith; nor was AP able to show how Lindh’s petition, if containing only private personal information, would in any way bear on governmental conduct.
Since it was conceded by both sides that there was a significant privacy interest implicated in Lindh’s petition, and in light of the court’s belief that AP failed to show how the information bore on the workings of government, the Second Circuit affirmed the district court’s holding that Lindh’s petition was exempt from disclosure.