Heights Community Congress v. Veterans Administration, 82-3450

• Decision Date: 23 April 1984
• Docket Number: No. 82-3450,82-3450
• Citation: 732 F.2d 526
• Parties: HEIGHTS COMMUNITY CONGRESS, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 526

732 F.2d 526

HEIGHTS COMMUNITY CONGRESS, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, Defendant-Appellee.

No. 82-3450.

United States Court of Appeals, Sixth Circuit Argued June 24, 1983.

Decided April 23, 1984.

Edward G. Kramer, argued (Lead Counsel), Vincent T. Lombardo, Cleveland, Ohio, for plaintiff-appellant.

Randolph Baxter, argued, Asst. U.S. Atty., Cleveland, Ohio, for defendant-appellee.

Before EDWARDS and KRUPANSKY, Circuit Judges, and REED, District Judge. ^*

KRUPANSKY, Circuit Judge.

This is an appeal by the Heights Community Congress (HCC) from a district court order upholding a Veterans Administration (VA) decision not to disclose the property address, the loan amount and the identity of the lender on VA insured loans granted in Cleveland Heights, Ohio, which request was made pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552. The district judge concluded that the information, if relevant, would constitute a "clearly unwarranted invasion of personal privacy" and so was exempt from disclosure under 5 U.S.C. Sec. 552(b)(6) (exemption (b)(6)).

The underlying facts are straightforward and uncontested. HCC is an umbrella organization of religious, educational and civic groups in Cleveland Heights, a contiguous suburb of Cleveland. HCC was created in the 1970's, in part, to deal with the rapid influx of black residents from nearby city neighborhoods which had themselves undergone a significant alteration in racial composition. In 1980, HCC filed the present FOIA request with the VA to determine if black veterans were receiving equal access to federal loan guarantees and to further investigate the possibility that lenders and realtors were manipulating the VA loan program so as to steer white and black veterans into specific areas of Cleveland Heights. The initial FOIA request sought information by race and census tract as to VA guaranteed loans during the period 1975-1979 as well as attorney fees. The VA, which did not maintain the records by census tract but by zip code, provided the data for the four zip codes which together included all of Cleveland Heights, but which also encompassed portions of surrounding cities.

The HCC thereupon amended its FOIA request to confine the inquiry to Cleveland Heights, and demanded the individual Residential Appraisals (Form 26-1803) and Certificates of Reasonable Value (Form 26-1805) utilized for each loan granted in Cleveland Heights. The VA released the above-cited forms but deleted the name and social security number of the recipient, the property address, the amount of the loan and the identity of the lender. Upon cross-motions for summary judgment, the district judge determined that the statistical information provided by the VA according to zip code, and the data from the redacted forms, were sufficient to satisfy HCC's purpose, and that release of further information which would identify individual veterans was a clearly unwarranted invasion of personal privacy. The HCC conceded that names and social security numbers could be redacted, but insisted on disclosure of the property addresses as well as the value of the loans and identities of the lenders.

Exemption 6 provides that the disclosure requirements of the FOIA do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(6). This section has been held to create a two-part test: (1) does the file include personnel, medical or "similar" data; and (2) if so, would disclosure be a "clearly unwarranted" invasion of personal privacy. United States Dept. of State v. Washington Post Co., 456 U.S. 595, 601-02, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982).

In addressing the threshold requirement, the Supreme Court in Washington Post, supra, held that a "similar" file was not to be construed as encompassing "a narrow class of files containing only a discrete kind of personal information." Id. 456 U.S. at 601-02, 102 S.Ct. at 1961. Rather, Exemption 6 was to be applied to "any Government records on an individual which can be identified as applying to that individual." Id. As stated by the Supreme Court, Congress intended that this "general exemption" would, in turn, be "held within bounds" by the second requirement of Exemption 6, which precludes release of such individual information when it would constitute a "clearly unwarranted invasion of personal privacy." Id. 456 U.S. at 599-601, 102 S.Ct. at 1960.

In Dept. of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Supreme Court mandated that the court balance the individual's right to privacy against disclosure's benefit to the public interest in determining if the disclosure would result in a "clearly unwarranted invasion of personal privacy":

Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by an agency in its "personnel" files. Rather, Congress sought to construct an exemption that would require a balancing of the individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act "to open agency action to the light of public scrutiny." The device adopted to achieve that balance was the limited exemption, where privacy was threatened, for "clearly unwarranted" invasions of personal privacy.

Both House and Senate Reports can only be read as disclosing a congressional purpose to eschew a blanket exemption for "personnel ... and similar files" and to require a balancing of interests in either case. Thus the House Report states, H.R.Rep. No. 1497, p. 11: "The limitation of a 'clearly unwarranted invasion of personal privacy' provides a proper balance between the protection of an individual's right of privacy and the preservation of the public's right to Government information by excluding those kinds of files the disclosure of which might harm the individual." Similarly, the Senate Report, S.Rep. No. 813, p. 9, states: "The phrase 'clearly unwarranted invasion of personal privacy' enunciates a policy that will involve a balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information."

425 U.S. at 372, 96 S.Ct. at 1604.

In performing the balancing test, the clear majority of circuits have employed a two prong approach: (1) identification of the privacy interest at stake; and (2) specification of the public interest in disclosure. See Madeira Nursing Center, Inc. v. N.L.R.B., 615 F.2d 728, 730 (6th Cir.1980):

The central inquiry is whether public access to the information * * * is tantamount to an invasion of privacy; if so we ask whether such an invasion is justified by any countervailing public benefit from disclosure.

Accord, Washington Post Corp. v. U.S. Dept. of H.H.S., 690 F.2d 252, 261 (D.C.Cir.1982); Harbolt v. Dept. of State, 616 F.2d 772, 775 (5th Cir.1980); Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 137 (3rd Cir.1974); Rural Housing Alliance v. U.S. Dept. of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974). But see Robles v. EPA, 484 F.2d 843, 847 (4th Cir.1973). In addition, it has been held in the Ninth and D.C. Circuits that the balancing test may include consideration of "whether other sources of information might suffice." Rural Housing Alliance, supra at 77; Church of Scientology v. Dept. of Defense, 611 F.2d 738, 746 (9th Cir.1979). The burden of proof is on the government to justify the exemption. Ingle v. Dept. of Justice, 698 F.2d 259, 264 (6th Cir.1983). Further:

In reviewing determinations made under the FOIA an appellate court is confronted with two responsibilities. Initially, the reviewing court must establish that the district court had an adequate factual basis for its decision. Secondly, the court on appeal must ascertain upon the factual foundation developed below if the conclusion of the trial court is clearly erroneous.

Ingle, 698 F.2d at 267.

Initially it is readily apparent, and not contested by the parties, that the record below, which was developed on cross-motions for summary judgment, is an adequate factual basis for resolving the instant matter. Further, it is equally clear and uncontested that the property appraisal forms and certificates of reasonable value are, in this case, within the "similar file" ambit of Exemption 6. Accordingly, the issue at bar is the district court's resolution of the balancing test required to determine the propriety of disclosing the personal data involved.

The initial element of the balancing test directs an inquiry into the nature of the privacy right at issue. Accordingly, in the matter at bar, it must be initially determined what personal privacy interests inhere in the property addresses of veterans who obtained loans. Obviously, an address is a record "which can be identified as applying to [an] individual". Dept. of State, supra, 496 U.S. at 601-02, 102 S.Ct. at 1961. Moreover, as the Third Circuit noted in Wine Hobby, supra, ...