Robles v. Environmental Protection Agency, 72-2470.

• Decision Date: 11 September 1973
• Docket Number: No. 72-2470.,72-2470.
• Citation: 484 F.2d 843
• Parties: Ernestine ROBLES et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

484 F.2d 843 (1973)

Ernestine ROBLES et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, Appellee.

No. 72-2470.

United States Court of Appeals, Fourth Circuit.

Argued April 3, 1973.

Decided September 11, 1973.

Victor H. Kramer, Washington, D. C. (Richard B. Wolf, Washington, D. C., and Joel Zeldin, on brief) for appellants.

Andrew J. Graham, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.

Before CRAVEN, RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a bizarre case, illustrative of the ignorance by even scientists of the dangerous properties of radioactive waste materials and of the hazards that may result from such ignorance. It arose out of the practice by a uranium processing plant of making available free of charge its uranium tailings¹ for use as clean fill dirt in connection with construction of private and public structures in the community of Grand Junction, Colorado, where the uranium processing plant was located. The practice, begun in 1950, continued until 1966, when the hazards incident to the use of such tailings were belatedly recognized. In the meantime, these tailings had been extensively used. Because of the obvious dangers connected with such use, the Environmental Protection Agency (hereinafter referred to as EPA), with the assistance of the Colorado Department of Health, undertook in 1970 to monitor the radiation levels in the homes and public structures where any of these tailings had been used. In addition, the homes and business or public structures were tested for radioactive emissions. In the course of this monitoring, some 15,000 homes were surveyed. The survey was extensive. In some of the homes an air sampler was placed for a week at a time on each of six occasions in the course of a year as a part of what was described as an "(I)ndoor radon daughter concentration level." In order to secure approval for such a survey from a homeowner, the government surveyors were instructed to advise orally the homeowner or occupier that the results of the survey would not be released to any one other than the owner or occupier and federal officials working on the problem. When the surveys were completed, the results were made available by the EPA to the Colorado Department of Health, in conjunction with which the survey was made. Through an arrangement with the Colorado Department of Health, the Development Director of the community can secure and make available to any "proper party" the results of the tests made on any specific structure. In addition, each owner of a structure surveyed has been given the results of the survey of his building.

The plaintiffs at first made formal request upon the defendant for the results of the survey as it applied to all public and private structures in the community. It later modified this request to cover only those structures in which the radiation levels exceeded the Surgeon General's "safety guidelines". The agency responded to this request by offering to provide the results but with the names and addresses of homeowners or occupiers deleted. It based its refusal to supply any of this information upon the exemptions set forth in subdivisions (4) and (6) of Section 552(b), 5 U.S.C. This was unacceptable to the plaintiffs, who then filed this action under the Freedom of Information Act² to compel disclosure. The defendant entered a motion to dismiss, and, in the alternative, a motion for summary judgment. The plaintiffs then submitted their cross-motion for summary judgment. When the motions came on for hearing, the District Court denied plaintiffs' cross-motion and granted the defendant's motion for summary judgment, finding that disclosure, though not exempt under subdivision (4), was exempted under subdivision (6) of the Act. The plaintiffs appeal.

On this appeal, the defendant agency apparently concedes that it is obligated to disclose to the plaintiffs, without regard to their interest or want of interest, the information requested unless disclosure is "specifically" excused under one of the nine express exemptions set forth in the Freedom of Information Act, and that, in asserting an excuse for disclosure under any express exemption, "the burden is on" it "to sustain its action." Whether conceded or not, this is the clear purport of the Act itself. Epstein v. Resor (9th Cir. 1970) 421 F.2d 930, 933, cert. denied 398 U.S. 965, 90 S.Ct. 2176, 26 L.Ed.2d 549. While it sought to excuse nondisclosure in this case under both exemptions (4) and (6) of the Act, its claim under (4) was disallowed by the District Court and, in this Court, the agency rests its right wholly upon exemption (6). Accordingly, the sole issue here is whether the District Court was correct in finding that the defendant agency had sustained its burden of establishing a right to exemption from disclosure of the requested information under exemption (6) of the Act.

Exemption (6) is as follows:

"(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;".

Obviously, the information requested was not included in any "personnel" or "medical" files as such. The basis for a claim of exemption must accordingly be found in the phrase, "similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The term "similar" was used, it seems, to indicate that, while the exemption was not limited to strictly medical or personnel files, the files covered in this third category must have the same characteristics of confidentiality that ordinarily attach to information in medical or personnel files; that is, to such extent as they contain "`intimate details' of a `highly personal' nature", they are within the umbrella of the exemption. This is the real thrust of the exemption as it was construed in Getman v. N. L. R. B. (1971), 146 U.S.App.D.C. 209, 450 F.2d 670, 675. See, Note, Invasion of Privacy and the Freedom of Information Act: Getman v. N.L.R.B., 40 Geo.Wash.L.Rev. 527, 532 (1972). It would seem to follow that the exemption applies only to information which relates to a specific person or individual, to "intimate details" of a "highly personal nature" in that individual's employment record or health history or the like, and has no relevancy to information that deals with physical things, such as structures as in this case.³ The agency contends, however, that this is too simplistic an approach to the unique situation in this case. It is true, the agency argues, that, while the information sought by the plaintiffs relates strictly to the condition of structures, of buildings, and real estate, it was gathered, analyzed, and is of interest only as it relates to the possible effect of that condition on the health and well-being of the occupants of those structures, i.e., of specific persons and individuals. So viewed, in this broad context, the information, the agency contends, comes within the definition of information of a "highly personal nature", as contemplated in exemption (6).

It must be conceded that there is a certain persuasiveness to this argument. The survey of the homes in the community was engaged in because of concern for personal health and safety; it was not an engineering survey to determine the structural adequacy or nature of the structures. And the reason for the health concern was the possibility that continued occupancy of the building might expose the occupants and even their progeny to hazards of health and even biological impairments. It is suggested that these potential health impairments could affect adversely employment opportunities and might even reduce marriage possibilities of the occupants.

Assuming, however, that it is possible to analogize these records to health records, it does not follow automatically that such records are exempt from disclosure. The statutory exemption does not simply cover any files that may be regarded as "similar" to health files. "Similar files", in order to qualify under the exemption, must fit the additional qualifications set forth in the exemption, i.e., they must contain information "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."⁴ The use of the term "clearly" in this qualification, which was not inadvertent but purposeful on the part of Congress, was, itself, a "clear" instruction to the Courts that, in determining the issue whether a disclosure would constitute "a clearly unwarranted invasion of personal privacy", they should "tilt the balance in favor of disclosure". Getman v. N.L.R.B. supra, at 674 of 450 F.2d.

In resolving against disclosure, the District Court relied strongly on the fact that the agency had in some instances promised the householder that the results of the survey would be kept confidential. While, perhaps, a promise of confidentiality is a factor to be considered, it is not enough to defeat the right of disclosure that the agency "received the file under a pledge of confidentiality to the one who supplied it. Undertakings of that nature cannot, in and of themselves, override the Act." Ackerly v. Ley (1969), 137 U.S.App.D.C. 133, 420 F.2d 1336, 1339-1340, n. 3; Legal Aid Society of Alameda County v. Shultz (D.C.Cal.1972) 349 F.Supp. 771, 776; Davis, supra, at 164. Particularly in this case is the alleged promise of confidentiality unavailing as an excuse. In the first place, the promise was given by the door-to-door surveyors only where confidentiality was specifically inquired about by a householder. The agency has offered no proof of how many householders in the community had received such promise. Even more important is the fact that the information has not been held in confidence. The results of the survey are available to the Colorado Department of Health. This Department, seemingly with the approval of EPA, readily makes available on request the results of the survey as...