Tennessean Newspaper, Inc. v. Levi, 75-350-NA-CV to 75-352-NA-CV.
| Citation | 403 F. Supp. 1318 |
| Decision Date | 11 November 1975 |
| Docket Number | No. 75-350-NA-CV to 75-352-NA-CV.,75-350-NA-CV to 75-352-NA-CV. |
| Parties | TENNESSEAN NEWSPAPER, INC.; Marsha Vande Berg, individually, and as an Employee of Tennessean Newspaper, Inc.; and Middle Tennessee Chapter, Society of Professional Journalists, Sigma Delta Chi v. Edward LEVI, Attorney General of the United States, and Charles H. Anderson, United States Attorney for the Middle District of Tennessee. WLAC-TV, INC., and Chris Clark, Individually, and as an Employee of WLAC-TV, Inc. v. Edward LEVI, Attorney General of the United States, and Charles H. Anderson, United States Attorney for the Middle District of Tennessee. The NASHVILLE BANNER PUBLISHING COMPANY and Larry Brinton, Individually, and as an Employee of the Nashville Banner Publishing Co. v. Edward LEVI, Attorney General of the United States, and Charles H. Anderson, United States Attorney for the Middle District of Tennessee. |
| Court | U.S. District Court — Middle District of Tennessee |
William R. Willis, Jr., Alfred H. Knight, III, and I. C. Waddey, Jr., Willis & Knight, Nashville, Tenn., for Tennessean Newspaper, Inc. and WLAC-TV, Inc.
James F. Neal, Neal & Harwell, Nashville, Tenn., for Nashville Banner Pub. Co.
Charles Fels and Martha Johnson Trammell, Asst. U. S. Attys., Nashville, Tenn., for defendants.
These substantially identical actions for injunctive and declaratory relief were consolidated for the purposes of hearing and disposition. The plaintiffs seek to enjoin the defendants from withholding certain information about persons arrested or charged with the violation of federal criminal statutes and to obtain a declaratory judgment that such withholding is violative of the Privacy Act of 1974, 5 U.S.C. § 552a, the Freedom of Information Act, 5 U.S.C. § 552, and the First Amendment to the Constitution of the United States. The Court has jurisdiction pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 02, and 28 U.S.C. § 1331, and will treat this suit on a declaratory judgment basis.
Defendant Anderson, United States Attorney for this District, has interpreted the Privacy Act as precluding the disclosure by him or persons in his office of certain information in his possession concerning individuals arrested or indicted in the District. Specifically, the information held precluded from disclosure includes the age, address, marital status, employment status, circumstances of arrest, the scope of the investigation leading to arrest or indictment, and other background material. The information determined to be available for disclosure includes only that on public records, which in some instances might be only the name of the individual charged and the crime allegedly committed.
Prior to the effective date of the Privacy Act, September 27, 1975, the defendant United States Attorney had routinely made available to the news media the information now withheld. In fact, this general identifying information was furnished to the news media under the Department of Justice guidelines for releasing information relating to criminal and civil proceedings. 28 C.F.R. § 50.2 (1975).
As a result of this interpretation of the Privacy Act, the United States Attorney denied the oral and written requests by plaintiffs for this formerly available information. One of the plaintiffs, Brinton, submitted a written request for such information, which the defendant Anderson treated as a request made pursuant to the Freedom of Information Act and forwarded to the Deputy Attorney General, United States Department of Justice. The request was denied.
Subject to certain specific exceptions, the Privacy Act generally prohibits federal employees in the executive branch of government from disclosing federal records concerning an individual absent the prior written consent of that individual. Willful disclosures by any such employee without the required consent subject that employee to criminal penalties. 5 U.S.C. § 552a(i)(1). One of the specific exceptions above-mentioned provides that the Privacy Act does not prohibit the disclosure of information required to be disclosed under the Freedom of Information Act. 5 U.S.C. § 552a(b) (2).
The Freedom of Information Act requires, subject to certain specific exceptions, disclosure of federal records containing the information requested by the plaintiffs herein. 5 U.S.C. § 552(a)(3). One of the exceptions provides that the Act does not require disclosure of "(7) investigatory records compiled for law enforcement purposes, but only to the extent that production of such records would ... (C) constitute an unwarranted invasion of personal privacy ...." 5 U.S.C. § 552(b)(7).
It is the position of the defendants that disclosure of the information requested would constitute an "unwarranted invasion of personal privacy" under this section.
In considering this question, the Court recognizes that Congress intended the disclosure provisions of the Freedom of Information Act to be construed liberally, and the exceptions to such provisions to be construed narrowly. Ditlow v. Shultz, 517 F.2d 166 (D.C.Cir.1975).
Normally, a determination of whether an invasion of personal privacy is "unwarranted" would require the Court to balance the competing interests, i. e., the individual privacy loss occasioned by disclosure as opposed to the public interest purposes promoted by disclosure. See: Ditlow v. Shultz, 517 F.2d 166 (D.C. Cir.1975); Wine Hobby USA, Inc. v. United States Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974); S.Rep.No. 813, 89th Cong., 1st Sess. 9 (1965). But see: Robles v. Environmental Protection Agency, 484...
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..."public personage", which limits the common law right of privacy, has been applied to FOIA actions as well. In Tennessean Newspapers Inc. v. Levi, 403 F.Supp. 1318 (M.D.Tenn.1975), the court required a United States attorney to disclose information concerning arrested persons, including nam......
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