Hemenway v. Hughes, Civ. A. No. 84-0222.

• Citation: 601 F. Supp. 1002
• Decision Date: 05 February 1985
• Docket Number: Civ. A. No. 84-0222.
• Parties: John D. HEMENWAY, Plaintiff, v. John HUGHES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

601 F. Supp. 1002

John D. HEMENWAY, Plaintiff, v. John HUGHES, et al., Defendants.

Civ. A. No. 84-0222.

United States District Court, District of Columbia.

February 5, 1985.

John D. Hemenway, pro se.

Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This matter is before the Court on the defendants' motion for summary judgment. The plaintiff, John D. Hemenway, seeks the release of certain information under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA) (the Act), allegedly held by the Bureau of Public Affairs at the United States Department of State (also Department, or State Department). The defendants State Department, John Hughes, Assistant Secretary of State for Public Affairs, and Alan Romberg, Deputy Assistant Secretary of State for Public Affairs, have moved for summary judgment on the grounds that they have carried out an adequate search and released all information not covered by FOIA exemptions. Because the Court concludes that the Department of State has satisfied the requirements of the Act and complied adequately with the plaintiff's request, summary judgment is granted in favor of the defendants.

I.

In April 1983, John Hemenway submitted a FOIA request to the State Department for a "List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship." The plaintiff informed that Department that the information was "held by the Bureau of Public Affairs" and was "unclassified." In September of the same year the plaintiff wrote to the State Department again, stating that because he had received no response to his initial letter he assumed that the request had been denied. The plaintiff also explained that he intended to treat this second letter as a formal appeal of the "de facto denial."

On September 27, 1983, the Department of State acknowledged Hemenway's second letter and informed the plaintiff that it had not had an opportunity to review his request for information. Two months later, the defendant wrote to Hemenway again, this time informing him that his request had been denied because the information sought fell within two FOIA exemptions — 5 U.S.C. § 552(b)(2) and (b)(6). In December 1983, Hemenway wrote to the Department explaining that he wished to appeal formally the denial. On January 3, 1984, with no response forthcoming, Hemenway notified the Department Appeals Officer that he intended to file suit in federal court.

In March 1984, the Department released to Hemenway a document entitled "List of Correspondents 1983". The document listed the names of all foreign correspondents accredited by the State Department, the news organizations that they represented, and the office telephone numbers and addresses for those organizations. The home telephone numbers and addresses of the correspondents were included in the original list, but were deleted by the Department from the copy received by Hemenway. Also included in the document was a geographical list of foreign correspondents that set out accredited correspondents and their respective news organizations country by country. In a letter accompanying the List of Correspondents, the Department stated that:

This list does not contain all of the information which you described, such as the citizenship of the correspondents. The only portions deleted are home telephone numbers and home addresses (and office phone numbers and addresses, if they are the same as the home numbers and addresses). These excisions have been made pursuant to FOIA exemption (b)(6), in that release of this information would be a clearly unwarranted invasion of the correspondents' personal privacy.

In their motion for summary judgment the defendants argue that the release of the List of Correspondents fulfilled their obligations under FOIA. The defendants point out that in the request letter the plaintiff asked for a "List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship." In an affidavit attached to the motion for summary judgment, defendant Hughes states that although the released list does not contain information about citizenship, "the Department does not maintain any list which contains such citizenship information." Thus, the defendants argue, the list was reasonably responsive to the plaintiff's request.

In the alternative the defendants insist that even if the list was not fully responsive, the Department is not under an obligation to release the requested information about citizenship because it is exempt from disclosure under 5 U.S.C. § 552(b)(6). The files containing the citizenship information, the defendants maintain, are similar to the type of medical and personnel files expressly protected by the (b)(6) general privacy exemption. To permit release would constitute a "clearly unwarranted invasion of personal privacy." Defendants' Memorandum in Support of Motion for Summary Judgment at 5.

In his opposition memorandum, the plaintiff contests both of these arguments. First, the plaintiff points out that citizenship information is routinely included in the applications that foreign correspondents are required to file when they apply for accreditation with the Department. According to the plaintiff, then, citizenship information was readily available to the defendants at the time the request was made, even if it was not contained in the form of a "list". Second, the plaintiff contends that as a matter of law citizenship information should not fall within the (b)(6) "personal privacy" exemption to FOIA.

II.

Unlike other civil actions, a decision to grant or deny summary judgment in a FOIA suit does not hinge on the existence of a genuine issue of material fact. See Fed.R.Civ.P. 56. Rather, summary judgment will be granted on the basis of agency affidavits "when the affidavits describe `the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" Miller v. Casey, 730 F.2d 773 (D.C. Cir.1984), quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). It is against this standard, therefore, that the affidavit and arguments submitted by the defendants must be evaluated.

A.

The defendants are correct in pointing out that FOIA requires a requester to "reasonably describe" the records sought, see 5 U.S.C. § 552(a)(3). The agency faced with the request is not required to manufacture or compile new documents from disparate data sources within its files, but the agency must bear in mind that "the fundamental objective of FOIA is to foster disclosure, not secrecy", Chrysler Corp. v. Brown, 441 U.S. 281, 290 n. 10, 99 S.Ct. 1705, 1712 n. 10, 60 L.Ed.2d 208 (1979), quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), and to provide information to the people on matters of public concern so as to "ensure an `informed electorate ... vital to the proper operations of a democracy.'" Dismukes v. Dep't of Interior, Civil Action No. 84-0757, Dec. 19, 1984 (D.D.C.1984), quoting S.Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5-6 (1966) (emphasis added), U.S.Code Cong. & Admin.News 1966, 2418. Thus, although a requester should not be permitted to alter the substance of his request once it has been made, see Miller v. Casey, 730 F.2d 773, 776-77 (D.C.Cir.1984); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1354 n. 12 (D.C.Cir.1983), the agency must be careful not to read the request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester. To conclude otherwise would frustrate the central purpose of the Act.

In this instance the request made by the plaintiff was ambiguous. The plaintiff asked for "the List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship." Clearly the request reasonably could be interpreted to ask either for a single list of accredited persons complete with citizenship information, or — as the plaintiff argues — for a list of accredited persons and any additional information the agency might have dealing with citizenship and news affiliation. Mindful that the plaintiff knew that the application forms containing the citizenship information existed at the time the request was made, and mindful that reference to those forms would have made the request clearer, the Court nevertheless cannot conclude that the plaintiff's demand for citizenship information fell outside the scope of the initial request. One need not get involved in a semantic debate over the meaning of the word "list" to understand what information the plaintiff wanted. Because the defendants had reasonably clear notice of what the plaintiff sought, the defendants had an obligation to provide any files containing citizenship information that they had, provided that the information was not covered by an exemption. It is to this remaining issue — the question of exemption — that attention now focuses.

B.

5 U.S.C. § 552(b)(6) exempts from disclosure all "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy". Accordingly, to succeed under this exemption, an agency must establish that (1) the information requested is contained in "personnel and medical files" or "similar files", and (2) that disclosure would constitute a "clearly unwarranted invasion of personal privacy." Department of State v. Washington Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); Simpson v. Vance, 648 F.2d 10, 12 (D.C.Cir.1980).

In Department of State v....