Rural Housing Alliance v. United States Dept. of Agr., 73-1771.
| Decision Date | 03 June 1974 |
| Docket Number | No. 73-1771.,73-1771. |
| Citation | 498 F.2d 73 |
| Parties | RURAL HOUSING ALLIANCE v. UNITED STATES DEPARTMENT OF AGRICULTURE et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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David M. Cohen, Atty., Dept. of Justice, of the bar of the Supreme Court of Ill., pro hac vice by special leave of court with whom Irving Jaffe, Acting Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, were on the brief, for appellants. Harold H. Titus, Jr., U. S. Atty., John A. Terry and Derek I. Meier, Asst. U. S. Attys., also entered appearances for appellants.
Victor H. Kramer, Washington, D. C., with whom Richard B. Wolf, Washington, D. C., was on the brief, for appellee.
Before BAZELON, Chief Judge, and ROBB and WILKEY, Circuit Judges.
Rehearing Denied September 24, 1974. See 502 F.2d 1179.
We have before us once again the question of the proper interpretation of several exemptions from disclosure under the Freedom of Information Act FOIA.1 At issue here is a report of a U. S. Department of Agriculture investigation of governmental housing discrimination in Florida, withheld from disclosure on the basis of exemptions 4, 5, 6, and 7. The District Court granted the plaintiff Rural Housing Alliance RHA motion for summary judgment after in camera inspection holding that the report was not within any exemption.2 We find the District Court applied incorrect legal standards in evaluating the applicability of the exemptions, hence reverse the judgment and remand for consideration consistent with this opinion.
The USDA report and the investigation which spawned it were stimulated by an RHA pamphlet, "Studies in Bad Housing in America—Abuse of Power." Utilizing a method of case-history documentation, this RHA tract charged the Farmers Home Administration FmHA staff with racial and national origin discrimination in arranging government loans under the Rural Housing Program in two counties in Florida.3 The Office of Equal Opportunity of the USDA requested an investigation by the Department's Office of Inspector General OIG. After investigation, the OIG concluded in a 150-page report that there was no substantial evidence indicating discrimination.
RHA's request for a copy of the investigation report was denied. Instead, OIG made public the "Investigation Summary" and "Statistical Data" sections of the report. Citing exemptions 4, 5, 6, and 7 of FOIA as valid justification for keeping the remainder confidential, the Government did not release the remainder of the report because the Government felt that its form—detailed and intimate case histories of specified, named persons 4—was inappropriate for disclosure. The Government did indicate that the material would be disclosed to RHA if it produced written authorization for release from the particular individual involved in any section.5 Rather than obtain such releases, RHA brought this FOIA suit.
The District Court, in considering RHA's motion for summary judgment, found that the report as a whole was not exempt from disclosure. However, the court recognized that there might be a need to delete details which would permit identification of the individuals involved. Consequently, the court ordered deletion of the names of applicants for loans, the names of those who complained to their Congressmen, those who were interviewed, attorneys, etc. Deletion of geographical references, applications for loans, and affidavits of applicants was likewise ordered.6
USDA then filed a motion to clarify or amend the court's order. In support of the motion, USDA submitted an affidavit of the Inspector General, Nathaniel Kossack, explaining the Government's fear that the court order as framed would permit release of intimate details concerning persons who could be readily identified by those familiar with the situation, notwithstanding the deletions, thus exposing the individuals to embarrassment or possible reprisals.7 The District Judge, without explanation, denied the government motion for clarification.8 Pending appeal he granted a stay.
The FOIA was enacted to ensure public access to a wide range of government reports and information.9 Recognizing that in certain circumstances disclosure realistically would not be in the public interest, Congress attempted to delineate a series of narrow exemptions.10 The sixth exemption provides that disclosure is unnecessary if the matters are "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."11
The District Court held that exemption 6 "has no application to this investigatory report." This holding was based on the view that the exemption "was designed to apply to detailed personal resumes and health records from agencies such as the Veterans Administration, welfare departments and the military."12 We think this statutory interpretation incorrect. We hold that exemption 6 is applicable to material such as the report here, hence we reverse the District Court and remand for appropriate review.
While the District Judge provided no elaboration of his rationale in the form of findings, he implied that the report here could not be considered "similar files" under exemption 6. Looking to the purpose of exemption 6, on the contrary, we believe that the investigatory report comes well within the ambit of exemption 6. That exemption was designed to protect individuals from public disclosure of intimate details of their lives, whether the disclosure be of personnel files, medical files, or other similar files.13 The exemption is not limited to Veterans' Administration or Social Security files, but rather is phrased broadly to protect individuals from a wide range of embarrassing disclosures.14 As the materials here contain information regarding marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, reputation, and so on, it appears that the report involves sufficiently intimate details to be a "similar" file under exemption 6.15
Of course, our interpretation of the statute, concluding that the investigatory report comes within the class of similar files which exemption 6 aimed at protecting, does not resolve the question whether exemption 6 dictates nondisclosure here, for exemption 6 specifically permits protection only of those files whose disclosure would result in "a clearly unwarranted invasion of personal privacy."16 On remand, it is for the District Judge to determine whether the files fall within that category.
In an opinion by Judge Wright, this court has previously considered the scope of the "clearly unwarranted invasion" language, in Getman v. NLRB.17 We held that exemption 6 involves a balancing of the interests of the individuals in their privacy against the interests of the public in being informed. We noted that the statute "instructs the court to tilt the balance in favor of disclosure."18 Specifically we suggested that in balancing interests the court should first determine if disclosure would constitute an invasion of privacy, and how severe an invasion. Second, the court should weigh the public interest purpose of those seeking disclosure, and whether other sources of information might suffice. Such balancing is unique for exemption 6; normally no inquiry into the use of information is made, and the information is made available to any person.19
These principles should be applied in evaluating the investigatory reports at issue here.20 The District Court should first determine the nature and extent of the invasion of the individuals' privacy.21 It should then consider the public interest purpose of RHA, and whether it could be achieved without this material. A balancing of these factors must thereafter be made.
One important factor which must be considered on remand is whether the deletions thus far ordered are sufficient to protect the privacy of the individuals. In construing the various exemptions, this court has often suggested deletions of certain protected matters so that the remainder of the document could be disclosed.22 The affidavit of Inspector General Kossack states, however, that the court order does not order adequate deletions, and that enough highly confidential material is left which would enable people with knowledge of the area to determine the identity of the individuals involved.23 The District Judge did not respond to this affidavit nor make any change in his order. On remand, the District Judge should reconsider and reevaluate this affidavit, and Kossack's prior affidavit submitted before the court's decision.24
The District Judge should also consider any alternative sources of information which might be available. For example, the possibility of RHA asking individuals independently for similar information should be explored.25
The USDA argues that exemption 4 also protects the investigatory report from disclosure. This exemption applies to "trade secrets and commercial or financial information obtained from a person and privileged or confidential."26 The trial court held that the exemption 28
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