Disabled Officer's Ass'n v. Rumsfeld, Civ. A. No. 76-0520.

• Decision Date: 23 February 1977
• Docket Number: Civ. A. No. 76-0520.
• Parties: DISABLED OFFICER'S ASSOCIATION, Plaintiff, v. Honorable Donald RUMSFELD et al., Defendants.
• Court: U.S. District Court — District of Columbia

428 F. Supp. 454

DISABLED OFFICER'S ASSOCIATION, Plaintiff, v. Honorable Donald RUMSFELD et al., Defendants.

Civ. A. No. 76-0520.

United States District Court, District of Columbia.

February 23, 1977.

Patrick J. Attridge, Washington, D. C., for plaintiff.

Michael J. Ryan, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM

GASCH, District Judge.

The Disabled Officer's Association brings this action pursuant to the Freedom of Information Act (hereinafter "Act" or "FOIA"), 5 U.S.C. § 552(a), for injunctive relief prohibiting defendants, the Department of Defense and certain officials of the Department of Defense, from withholding the names and addresses of all living commissioned, warrant or flight officers of the Armed Forces of the United States who have been, or may hereafter be, retired for or with a service connected disability determined to be sufficient to prevent the performance by them of their official duties. This Court has jurisdiction over this action by virtue of 5 U.S.C. § 552(a)(4)(B). This matter is now before the Court on the parties' cross-motions for summary judgment.¹

BACKGROUND

The Disabled Officer's Association is an unincorporated nonprofit association of commissioned, warrant or flight officers of the United States Armed Forces who are retired with or for a service connected physical disability. It was organized in 1919 to aid officers of the Armed Forces who are retired for disability sustained in the line of duty and their dependents. To accomplish this purpose, the Association performs several functions. Its Executive Director engages in lobbying and testifies before Congressional committees on proposed and pending legislation which affects the interests of retired military personnel and of their dependents. The Association keeps its members informed, through quarterly and emergency bulletins, of proposed and recently enacted legislation, administrative rulings and judicial decisions affecting their interests and those of their dependents. It also assists and advises its members and their dependents and survivors on claims for benefits under laws administered by the various military services and/or the Veterans Administration.

The Association's annual dues are $10.00. These dues are used to pay the salary of the Association's Executive Director and clerical staff, to maintain its headquarters and to promote its activities. The Association's officers and committee members serve without remuneration; and the Association's services are available to its members without any other fee or charge.

The Association's membership is comprised primarily of World War I and II veterans. For the past six or seven years, its membership has been declining substantially due to its inability to obtain the names and addresses of recently retired disabled officers who may be eligible for membership.

On March 19, 1975, plaintiff requested a list of the names and addresses of all living commissioned, warrant or flight officers of the Armed Forces of the United States who have been, or may hereafter be, retired for or with a service connected disability, determined to be sufficient to prevent the performance by them of their official duties from the Directorate for Freedom of Information, Office of the Assistant Secretary of Defense (Public Affairs). This request was made in accordance with the regulations of the Department of Defense. This request was denied on the ground that the information sought fell within the (b)(6) exemption of the Act, 5 U.S.C. § 552(b)(6). Plaintiff appealed this decision administratively, which appeal was denied, in a final administrative decision, on the ground that the (b)(6) exemption applied to the information.

Plaintiff then instituted the instant FOIA action to obtain this information. Plaintiff Association has represented to the Court that it will use the information to inform these persons of the existence and purpose of the Association and to solicit their membership, that this will be done by mailing these persons a brochure, a copy of which has been submitted to the Court,² and that there will be no telegraph, telephone or personal follow-up or harassment. Plaintiff has also represented to the Court that it will not sell, distribute or otherwise disseminate the list of names and addresses.³

MERITS

Two principal questions are presented by the parties' cross-motions for summary judgment: whether the information sought constitutes an agency "record" within the meaning of the FOIA and, if so, whether the information sought is exempt from mandatory disclosure under the (b)(6) exemption to the Act, 5 U.S.C. § 552(b)(6). For the reasons set forth below, the Court is of the opinion that defendants' objections to the disclosure of the names and addresses of currently disabled retired officers are not well-taken and that plaintiff is entitled to the relief it seeks as to this information, but that injunctive relief placing defendants under a continuing obligation to provide plaintiff in the future with the names and addresses of officers who may hereafter be retired with or for a service connected disability is not now appropriate.

1. The Names and Addresses of Currently Disabled Retired Officers.

Defendants first contend that plaintiff has not requested an identifiable agency record within the meaning of the FOIA. This contention is based on the fact that they do not have a single list of all the names and addresses plaintiff seeks. They allege that this information is contained in numerous personnel and financial records throughout the Department of Defense, although at oral argument defendants' counsel indicated that some, but not all, of the branches of the Armed Forces may have a list of the names and addresses of disabled officers retired from that Branch and that the Veterans Administration may have such a list. Defendants contend that the FOIA applies only to documents in existence and that the FOIA cannot be used by the plaintiff to force defendants to compile a record. To support their position, they rely on the Supreme Court's statement in Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), that:

The Freedom of Information Act imposes no independent obligation on agencies to write opinions. It simply requires them to disclose the opinions which they do write.

Id. at 192, 95 S.Ct. at 1504.

Plaintiff is not attempting to use the FOIA to force defendants to create a record which they do not already have, and its request is one for an existing record within the meaning of the Act. If the Department of Defense did not maintain records on retired disabled officers, then plaintiff's request could be seen as an attempt to compel defendants to compile information they do not possess and Renegotiation Board v. Grumman Aircraft Engineering Corp., supra, would have more applicability to this case. However, defendants have stated that the Department of Defense has personnel and financial records pertaining to retired disabled officers, and plaintiff is only requesting them to disclose a limited portion of, or amount of information from these files, the names and addresses of the retired disabled officers. The fact that defendants may have to search numerous records to comply with the request and that the net result of complying with the request will be a document the agency did not previously possess is not unusual in FOIA cases nor does this preclude the applicability of the Act. Indeed, in at least two recent FOIA actions involving requests for names and addresses which were not previously compiled into a single document but were contained in numerous separate documents, this fact was not seen as a bar to the applicability of the Act. See Ditlow v. Shultz, 170 U.S.App.D.C. 352, 517 F.2d 166 (1975); Wine Hobby USA, Inc. v. United States Internal Revenue Service, 502 F.2d 133 (3rd Cir. 1974).⁴ Further, had plaintiff requested the files and records on all disabled retired officers, with all the information deleted save the names and addresses of the officers, this request would clearly be one for existing records; that plaintiff phrased its request in a somewhat different form does not affect the substance of the request.

Defendants next contend that the requested information is exempt from mandatory disclosure under the FOIA by virtue of the (b)(6) exemption, 5 U.S.C. § 552(b)(6). This exemption applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Thus, this exemption applies to the information the Association requested only if it constitutes personnel, medical or similar files and its disclosure would result in a clearly unwarranted invasion of privacy. To determine whether there would be a "clearly unwarranted" invasion of privacy, the Court must balance de novo the privacy interest in nondisclosure, or the severity of the loss of privacy, with the public interest in disclosure. This involves, first, an inquiry into whether any privacy invasion will result from disclosure and, if so, how severe an invasion. The Court must then determine whether the privacy invasion is outweighed by the public interest, if any, in disclosure. These competing interests must be balanced with a "tilt" in favor of disclosure. Ditlow v. Shultz, supra; Rural Housing Alliance v. Department of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73 (1974); Getman v. N.L.R.B., 146 U.S.App.D.C. 209, 450 F.2d 670 (1971).

There is, however, some uncertainty as to precisely what privacy and public interests are to be balanced. The Court in Getman v. N.L.R.B., supra balanced these competing interests in the context of the privacy loss from disclosure to the particular requesting party and the public interests served by disclosure to the particular requesting party.⁵ In Ditlow v. Shultz, supra, the Court questioned the...