National Ass'n of Retired Federal Employees v. Horner

• Decision Date: 13 September 1989
• Docket Number: No. 86-5446,86-5446
• Citation: 879 F.2d 873,279 U.S.App.D.C. 27
• Parties: , 58 USLW 2062 NATIONAL ASSOCIATION OF RETIRED FEDERAL EMPLOYEES v. Constance HORNER, Director, Office of Personnel Management, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 873

879 F.2d 873

279 U.S.App.D.C. 27, 58 USLW 2062

NATIONAL ASSOCIATION OF RETIRED FEDERAL EMPLOYEES v. Constance HORNER, Director, Office of Personnel Management, Appellant.

No. 86-5446.

United States Court of Appeals District of Columbia Circuit.

Argued April 4, 1987.

Decided July 7, 1989.

Rehearing and Rehearing En Banc Denied Sept. 13, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-01739).

Al J. Daniel, Jr., Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellant.

Michael J. Kator, with whom Joseph B. Scott and Irving Kator, Washington, D.C., were on the brief, for appellee.

Before SILBERMAN, BUCKLEY, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

Constance Berry Newman, Director of the Office of Personnel Management, appeals a decision of the district court ordering OPM, pursuant to the Freedom of Information Act, to disclose to the National Association of Retired Federal Employees the names and addresses of retired or disabled federal employees. OPM appeals on the ground that the requested records are non-disclosable under FOIA Exemption 6, which applies to certain types of files "the disclosure of which would lead to a clearly unwarranted invasion of personal privacy." 5 U.S.C. Sec. 552(b)(6). Based largely upon the Supreme Court's recent decision in Department of Justice v. Reporters Committee for Freedom of the Press, --- U.S. ----, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), we reverse the judgement of the district court.

I. FACTS

NARFE exists to protect and to further the interests of individuals eligible to participate in the federal Government's civilian retirement system. Between 1979 and 1981, OPM (and its predecessor, the Civil Service Commission) assisted NARFE in its efforts to recruit new members through jointly issued "blind mailings"; NARFE would prepare informational packets that an independent mailing service would then send to newly enrolled federal annuitants. If a recipient responded with an expression of interest, OPM would provide NARFE with his or her name and address.

OPM discontinued its assistance to NARFE in 1982. Without OPM's aid, and without any alternative source for the names and addresses of recent retirees, NARFE's efforts to enroll substantial numbers of new members were frustrated. In early 1985, therefore, it asked OPM, pursuant to FOIA, for a list of "the names and addresses of persons who were added to the annuity rolls between April 1, 1981 and December 31, 1984." OPM denied the request, invoking FOIA Exemption 6.

NARFE then filed suit in the district court. On cross-motions for summary judgment, the court granted NARFE's motion, holding that a person's "relatively minor" privacy interest in control over who has access to his name, address, and status as a federal annuitant is outweighed by "the public interest in disclosure [that] flows from NARFE's services and the fact that many annuitants might be pleased to learn of them." National Ass'n of Retired Federal Employees v. Horner, 633 F.Supp. 1241, 1245 (D.D.C.1986). OPM appealed.

After oral argument of the appeal in this court, the Supreme Court granted certiorari to review our earlier decision in Reporters Committee. Because Reporters Committee raised an issue relevant to the present case, we ordered that this case be held in abeyance pending the Supreme Court's decision. After that decision issued, we ordered supplemental briefing on its implications for this case. We now reverse the judgment of the district court.

II. ANALYSIS

Under FOIA, an agency must disclose all records requested by "any person," 5 U.S.C. Sec. 552(a)(3), unless the information sought falls within a specific statutory exemption. 5 U.S.C. Sec. 552(d). Exemption 6 provides that an agency shall not disclose "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).

NARFE does not dispute that the names and addresses of recent annuitants are covered by the phrase "personnel and medical files and similar files," and that Exemption 6 is therefore relevant to them. Accordingly, we must first determine whether their disclosure would compromise a substantial, as opposed to a de minimis, privacy interest. If no significant privacy interest is implicated (and if no other Exemption applies), FOIA demands disclosure. See Department of Justice v. Tax Analysts, --- U.S. ----, ---- - ----, 109 S.Ct. 2841, 2850-53, --- L.Ed.2d ---- (1989). If, on the other hand, a substantial privacy interest is at stake, then we must weigh that privacy interest in non-disclosure against the public interest in the release of the records in order to determine whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy. Ripskis v. Department of Housing and Urban De velopment,, 746 F.2d 1, 3 (D.C.Cir.1984). Cf. Reporters Committee, 109 S.Ct. at 1476 (Exemption 7, which covers law enforcement records the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy," calls for a balancing of private against public interests.).

A. Privacy Concerns

The Supreme Court has made clear that Exemption 6 is designed to protect personal information in public records, even if it is not embarrassing or of an intimate nature: "Information such as place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal, and yet ... such information ... would be exempt from any disclosure that would constitute a clearly unwarranted invasion of personal privacy." Department of State v. Washington Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982). The question that remains is the extent of the interference with privacy that would be caused by disclosure of the name, address, and annuitant status information at issue in this case.

Before the Supreme Court decided Reporters Committee, NARFE's primary argument was that its planned use of their names and addresses would not occasion significant annoyance to the annuitants. Reporters Committee makes clear, however, that this is not the relevant consideration. The Court there held that, with exceptions not here relevant, "the identity of the requesting party has no bearing on the merits of his or her FOIA request," explaining, "The Act's sole concern is with what must be made public or not made public." 109 S.Ct. at 1480-81 (internal quotation omitted). True, the Court made this broad observation in the course of discussing how to assess the public interest in disclosure, not in its consideration of the private interests in non-disclosure. That is not surprising, however, for in that case, the plaintiff reporters, who had requested "rap sheets" (personal criminal histories) of four individuals, were in no position to argue that what they would do with the information would be somehow less intrusive than the uses to which others might put it; the Court was therefore not faced with the question whether "the identity of the requesting party" is equally irrelevant to the private interest side of the balance. We conclude that it is, for two reasons.

First, the Court's statement of the irrelevance principle is not limited in terms to the public interest inquiry; it is in terms applicable to "the Act" as a whole. Second, such a limitation would not make sense. The statute requires that non-exempt files be disclosed to "any person." 5 U.S.C. Sec. 552(a)(3). That is, information available to anyone is information available to everyone. Because a court cannot limit the disclosure of records to particular parties or for particular uses, it would be illogical as well as unfair to the person whose privacy is at stake for the court to balance the public interest in disclosure to the whole world against the private interest in avoiding disclosure only to the party making the request, and to ignore the impact on personal privacy of the more general disclosure that will likely ensue.

In this context, the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant, as several other circuits have held. See Department of Agriculture v. FLRA, 836 F.2d 1139, 1143 (8th Cir.1988); Minnis v. Department of Agriculture, 737 F.2d 784, 787 (9th Cir.1984); Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir.1984); American Federation of Government Employees v. United States, 712 F.2d 931, 932 (4th Cir.1983); Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 136-37 (3d Cir.1974). In our society, individuals generally have a large measure of control over the disclosure of their own identities and whereabouts. That people expect to be able to exercise that control "is evidenced by ... unlisted telephone numbers, by which subscribers may avoid publication of an address in the public directory, and postal boxes, which permit the receipt of mail without disclosing the location of one's residence." Heights, 732 F.2d at 529.

Privacy in the sense of "an individual's control of information concerning his or her person," Reporters Committee, 109 S.Ct. at 1476, is not the only interest implicated in this case, moreover. Every list of names and addresses sought under FOIA is delimited by one or more defining characteristics, as reflected in the FOIA request itself; no one would request simply all "names and addresses" in an agency's files, because without more, those data would not be informative. The extent of any invasion of privacy that release of the list might occasion thus depends upon the nature of the defining characteristics, i.e.,...