840 F.2d 26 (D.C. Cir. 1988), 84-5604, Washington Post Co. v. United States Dept. of State

Docket Nº:84-5604.
Citation:840 F.2d 26
Party Name:The WASHINGTON POST COMPANY v. UNITED STATES DEPARTMENT OF STATE, et al., Appellants.
Case Date:February 05, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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840 F.2d 26 (D.C. Cir. 1988)

The WASHINGTON POST COMPANY

v.

UNITED STATES DEPARTMENT OF STATE, et al., Appellants.

No. 84-5604.

United States Court of Appeals, District of Columbia Circuit

February 5, 1988

Argued Oct. 1, 1985.

Al J. Daniel, Jr., Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellants. Bruce G. Forrest, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellants.

Paul Mogin, with whom David E. Kendall, Kevin T. Baine and Lon S. Babby, Washington, D.C., were on the brief, for appellee.

Before ROBINSON, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

Dissenting Opinion filed by Circuit Judge BORK.

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SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal summons us to examine this case a second time. Again at issue is an order of the District Court requiring production by the Department of State 1 of certain documents 2 requested by the Washington Post Company (the Post) pursuant to the Freedom of Information Act (FOIA). 3 In that court the Department contended, as it does here, that revelation of these materials would "constitute a clearly unwarranted invasion of personal privacy," and, accordingly, that they are exempted from mandatory release by FOIA's Exemption 6. 4 The District Court entered summary judgment for the Post on the ground that the strong public interest in disclosure of governmental information outweighed what the court deemed would amount to a relatively insignificant invasion of privacy. 5

We hold that in the circumstances portrayed by the record, the information solicited by the Post is potentially accessible under FOIA. We find, however, that the District Court undertook to resolve a serious factual dispute concerning the extent of harm consequent upon an unveiling of that information. We therefore reverse the production order and remand the case to that court for further proceedings in harmony with this opinion.

I. THE BACKGROUND

In September, 1979, the Post asked the State Department to release, pursuant to FOIA, any documents indicating whether Dr. Ali Behzadnia and Dr. Ibrahim Yazdi were United States citizens or held valid United States passports. 6 At the time, both of these individuals lived in Iran and were prominent figures in the governmental hierarchy of that country. The Department denied the Post's request, invoking FOIA Exemption 6, which authorizes withholding of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 7 The Department asserted that disclosure of any record revealing that Dr. Behzadnia or Dr. Yazdi is a naturalized United States citizen would result in embarrassment and physical harm, and possibly even death. 8 This disposition was affirmed by the Department's Council on Classification Policy, which felt that "the privacy interests to be protected are not incidental ones, but, rather are such that they clearly outweigh any public interests which might be served by release of the requested information." 9

The Post then instituted the present suit in the District Court to enjoin the State Department from withholding the data requested. 10 That court held that the records in question are not "similar files" protected by Exemption 6, and accordingly granted summary judgment for the Post. 11 On appeal, this court agreed that the records are not "similar files," and therefore did not consider the possible impact of disclosure

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upon any privacy interest involved. 12 The Supreme Court, however, finding this reading of "similar files" too narrow, reversed. 13 The Court held that Congress intended that the phrase be given a broad meaning, and thus to include any file containing "[g]overnment records on an individual which can be identified as applying to that individual." 14 This court in turn remanded to the District Court for determination of whether public release of such records would amount to an intrusion upon personal privacy above the statutorily tolerated level. 15

Subsequently, the State Department learned that Dr. Behzadnia was no longer living in Iran. The Department then sought to comply with the Post's request as to him, but was unable to locate any material relating to issuance of a United States passport to him or any other document associated with his name. 16 From that point the case proceeded with respect to Dr. Yazdi alone.

Both sides moved for summary judgment in the District Court, thus confronting it with the task of balancing the public interest in disclosure against the privacy interest of Dr. Yazdi. The State Department relied on affidavits averring that public dissemination of the information desired by the Post could be embarrassing to Dr. Yazdi and could even expose him to physical harm. 17 The Post, on the other hand, pointed to several press accounts of events in Iran, and to books published since the Iranian Revolution that had referred to Dr. Yazdi's reputed ties to the United States. For example, both Inside the Iranian Revolution, by a former director of the State Department operations center, and Mission to Iran, by a former ambassador to Iran, state that Yazdi is a United States citizen. 18 Because information of that character was already in the public domain and the dire consequences predicted by the State Department had not occurred, the District Court concluded that the effect on personal privacy from release of the requested documents would be insubstantial. 19

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Against this personal privacy interest the District Court balanced what it found to be a strong public interest in favor of disclosure. The court identified two elements of this public interest. First, the court observed that whether prominent officials of the Iranian government are American citizens is a legitimate matter of public concern, especially because such information "would shed light on the backgrounds and motivations of these individuals and on the composition of the body of officials exercising political power in Iran." 20 Second, the court declared that this information would reveal what steps, if any, the United States Government had taken to revoke the order naturalizing Dr. Yazdi and to cancel his certificate of naturalization. 21 The records pursued by the Post might show, the court reasoned, whether governmental officials had been derelict in their duties by failing to institute proceedings toward that end. 22 Weighing this public interest against Dr. Yazdi's privacy interest, the court found that disclosure of the sought-after information would not constitute a clearly unwarranted invasion of privacy. 23

II. THE SUMMARY JUDGMENT

Time and again, this court has emphasized that FOIA cases are not immune to summary-judgment requirements. 24 Only upon a suitable showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" is summary judgment in order. 25 By the same token, an agency may not defeat its opponent's right to an evidentiary hearing on such an issue merely by filing an affidavit purporting to support a motion for such a judgment. 26 Rather, "the requester may ... produce countervailing evidence," 27 and if any genuine issue of material fact remains, summary judgment is improper. 28

In light of these uncontroversial precepts, the District Court erred in awarding summary judgment to the Post. The record makes abundantly clear a factual dispute going to the very heart of the case: the extent of potential harm to Dr. Yazdi should the Department release information on his citizenship. 29 That issue could properly

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be resolved only by trial, not by factfinding on the basis of materials tendered in support of and in opposition to summary judgment. 30

When we review refused FOIA requests, we are often called upon to assess the probable consequences of releasing particular information. And when the litigants quarrel over key factual premises for a determination on that score, we have unhesitatingly ruled that summary judgment is inappropriate. For instance, as our Exemption 4 31 cases well illustrate, we have frequently found that disputes over the likelihood or extent of harm from disclosure preclude summary judgment:

Where there is a conflict in the affidavits as to what adverse consequences will flow from the revelation of the facts contained in the documents sought to be disclosed, then it appears that there is indeed a conflict regarding very material facts which calls for some type of adversary procedure. The District Court thus attempted to resolve the conflict in the ultimate facts without having the evidence before it.... Summary judgment was not appropriate. 32

Similarly, in applying the privacy-balancing test of Exemption 7(C), 33 we have held that "differing assessments of the actual harm which disclosure would inflict" generate an issue of fact unsuitable for resolution on summary judgment. 34 The same conclusion follows inexorably here.

Facing controverted issues of fact, the District Court proceeded to resolve a pivotal conflict in the affidavits respectively tendered by the Post and the State Department on the cross-motions for summary judgment. 35 Courts are forbidden, however, to conduct trial by affidavit and thus deprive litigants of their right to an evidentiary hearing on issues of fact. 36 As we have said in the past, "[w]e think there is a right of confrontation ... and so the parties should have the right to examine the affiants either by depositions or in open court.... [T]he...

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