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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2003 Decided November 18, 2003
No. 02-5317
ELLEN W. SCHRECKER,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00026)
James H. Lesar argued the cause and filed the briefs for
appellant.
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., United States Attorney, and R. Craig Lawrence,
Assistant United States Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Michael E. Tankersley was on the brief for amici curiae
Public Citizen, Inc., et al. in support of appellant.
Before: GINSBURG, Chief Judge, EDWARDS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Ellen Schrecker appeals the Dis-
trict Court’s decision granting summary judgment to the U.S.
Department of Justice (‘‘the Government’’), in a case arising
out of Schrecker’s Freedom of Information Act (‘‘FOIA’’)
request for Federal Bureau of Investigation (‘‘FBI’’) records
relating to McCarthy-era investigations of Gerhart Eisler and
Clinton Jencks. The Government produced over 24,000
pages of responsive documents, but redacted names and other
information identifying third-party individuals mentioned in
those records pursuant to Exemption 7(C) in FOIA. Exemp-
tion 7(C) permits an agency to withhold information compiled
for law enforcement purposes where disclosure of such infor-
mation ‘‘could reasonably be expected to constitute an unwar-
ranted invasion of personal privacy.’’ 5 U.S.C. § 552(b)(7)(C)
(1996).
In a prior appeal involving the same parties, we remanded
the case to the District Court in order for the Government to
show that it had taken ‘‘certain basic steps’’ to ascertain
whether the individuals whose names were withheld under
Exemption 7(C) are living or dead. Schrecker v. United
States Dep’t of Justice, 254 F.3d 162, 167 (D.C. Cir. 2001).
Schrecker now challenges the District Court’s findings on
remand that the Government’s efforts were adequate and that
nondisclosure of the information under Exemption 7(C) is
justified. See Schrecker v. United States Dep’t of Justice, 217
F. Supp. 2d 29 (D.D.C. 2002). We affirm the judgment of the
District Court.
I. BACKGROUND
This appeal is the latest installment in a saga that began 15
years ago. Appellant Ellen Schrecker is a history professor,
a published author, and an expert on McCarthyism. In 1988,
3
she submitted a FOIA request for FBI records on Gerhart
Eisler and Clinton Jencks. Both were the subjects of FBI
investigations during the McCarthy Era, in 1947 and 1953,
respectively. Schrecker v. United States Dep’t of Justice, 14
F. Supp. 2d 111, 114 (D.D.C. 1998). Schrecker resubmitted
her request in November 1994, after the Government with-
held a portion of the documents responsive to her initial
request. Two months later she initiated this law suit in the
District Court, challenging the adequacy of the FBI’s releas-
es. Id.
In 1998, after the Government had conceded that ‘‘a ‘signif-
icant portion’ of its withholdings may have been inappropri-
ate,’’ the District Court ordered the Government to reprocess
all withholdings from responsive documents. Id. at 117.
After reprocessing, the Government prepared a 100-page
Vaughn index from over 24,000 pages of responsive docu-
ments. See Schrecker v. United States Dep’t of Justice, 74 F.
Supp. 2d 26, 28 (D.D.C. 1999). A Vaughn index describes the
information withheld from a sample of the responsive docu-
ments selected by the requesting party and explains the
relevance of the FOIA exemption under which each item is
withheld. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.
Cir. 1973), cert. denied, 415 U.S. 977 (1974).
In 1999, the District Court granted the Government’s mo-
tion for summary judgment, upholding the Government’s
decision to withhold information from the responsive docu-
ments on the basis of six FOIA exemptions, including Exemp-
tion 7(C). Schrecker, 74 F. Supp. 2d at 29-35. On appeal, we
affirmed the District Court’s decision with two exceptions.
We first held that because the Government had acknowledged
the previous existence of responsive ‘‘ticklers’’ (duplicate files,
usually maintained by FBI supervisors, that contain copies of
documents which may not have survived in other filing sys-
tems and may contain unique annotations), the Government
was required to search for these records. Schrecker, 254
F.3d at 164-65.
More relevant for the instant appeal, we found that the
record was not sufficiently developed to permit proper review
4
of the Government’s invocation of Exemption 7(C). The fact
of an individual’s death, we held, is a relevant factor in
determining whether the Government properly withheld the
individual’s personal information under Exemption 7(C). Id.
at 166. The Government affirmed that it had investigated
whether the relevant individuals were deceased, relying on
several clues and sources: (1) Who Was Who, a book of
famous individuals; (2) the ‘‘100-year rule,’’ which presumes
that an individual is dead if his or her birth date appears in
the responsive record and is more than 100 years old; and (3)
‘‘other readily available information.’’ The record showed
that the ‘‘other readily available information’’ included inter-
nal FBI records, but it was unclear as to whether it also
included the Social Security Death Index (‘‘SSDI’’), a private-
ly maintained database using Social Security Administration
data. Id. at 166-67.
We held that, ‘‘[w]ithout confirmation that the Government
took certain basic steps to ascertain whether an individual
was dead or alive, we are unable to say whether the Govern-
ment reasonably balanced the interests in personal privacy
against the public interest in release of the information at
issue.’’ Id. at 167. We reversed the District Court’s grant of
summary judgment on the Exemption 7(C) withholdings and
remanded the case for further proceedings. The court in-
structed that, on remand, the Government should be permit-
ted to document the ‘‘other readily available information’’
upon which it relied. The District Court then could properly
evaluate whether the Government ‘‘did all it should have
done’’ and, on this basis, determine whether the Exemption
7(C) withholding was justified. Id.
On remand, the District Court again granted summary
judgment for the Government, relying in significant part on
two declarations from Scott A. Hodes, then Acting Chief of
the Litigation Unit, Freedom of Information-Privacy Acts
Section at FBI Headquarters. See Schrecker, 217 F. Supp.
2d at 34-38. The court found that the Government’s search
for responsive ‘‘ticklers’’ satisfied the Government’s duty un-
der FOIA. Id. at 34-35. With regard to Exemption 7(C), the
court found that the Government had investigated the life
5
status of the individuals whose names were withheld, using
the following clues and sources: Who Was Who; the 100-year
rule; previous FOIA requests; ‘‘internal sources’’; and SSDI
searches where the individual’s social security number ap-
peared in the responsive records. Id. at 37. The District
Court rejected Schrecker’s argument that the FBI should use
name-based searching of the SSDI when social security num-
bers are not available, finding that a social security number is
necessary to verify that an individual listed in the database is
the same individual appearing in the responsive document.
The court found that it would be unduly burdensome for the
Government to search unresponsive files for the social securi-
ty number of every individual mentioned in a responsive
document. Id. at 38.
The District Court accordingly held that the Government
had done all it was required to do in investigating whether
the individuals whose personal information was withheld were
dead. The court also concluded that the Government had
appropriately balanced privacy and public interests in with-
holding the information under Exemption 7(C) and, therefore,
held that the Government was entitled to summary judgment.
Id. at 38-39. Schrecker now appeals the District Court’s
decision as to the Exemption 7(C) issues. Public Citizen,
Inc., and seven other organizations (‘‘Amici’’) were granted
leave by the court to file a joint amicus brief in support of
Schrecker.
II. ANALYSIS
A. FOIA Exemption 7(C)
FOIA Exemption 7(C) provides, in relevant part, that an
agency may withhold ‘‘records or information compiled for
law enforcement purposes’’ to the extent that their production
‘‘could reasonably be expected to constitute an unwarranted
invasion of personal privacy.’’ 5 U.S.C. § 552(b)(7)(C) (1996).
Exemption 7(C) requires the agency and the reviewing court
to weigh the public interest in the release of information
against the privacy interest in nondisclosure. See United
6
States Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 762 (1989).
The public interest in disclosure must be evaluated in light
of FOIA’s central purpose: ‘‘to open agency action to the
light of public scrutiny.’’ Id. at 772 (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 372 (1976)). This inquiry,
moreover, should focus not on the general public interest in
the subject matter of the FOIA request, but rather on the
incremental value of the specific information being withheld.
See, e.g., King v. United States Dep’t of Justice, 830 F.2d 210,
234 (D.C. Cir. 1987).
On the privacy side of the ledger, our decisions have
consistently supported nondisclosure of names or other infor-
mation identifying individuals appearing in law enforcement
records, including investigators, suspects, witnesses, and in-
formants. See Fitzgibbon v. Cent. Intelligence Agency, 911
F.2d 755, 767-68 (D.C. Cir. 1990); Keys v. United States Dep’t
of Justice, 830 F.2d 337, 347-48 (D.C. Cir. 1987); King, 830
F.2d at 234-35; Senate of the Commonwealth of Puerto Rico
Judiciary Comm. v. United States Dep’t of Justice, 823 F.2d
574, 588 (D.C. Cir. 1987); Bast v. Fed. Bureau of Investiga-
tion, 665 F.2d 1251, 1254-55 (D.C. Cir. 1981); Lesar v. United
States Dep’t of Justice, 636 F.2d 472, 487-88 (D.C. Cir. 1980).
In Safecard Services, Inc. v. SEC, we adopted a categorical
rule permitting an agency to withhold information identifying
private citizens mentioned in law enforcement records, unless
disclosure is ‘‘necessary in order to confirm or refute compel-
ling evidence that the agency is engaged in illegal activity.’’
926 F.2d 1197, 1206 (D.C. Cir. 1991); see also Nation Maga-
zine, Washington Bureau v. United States Customs Serv., 71
F.3d 885, 896 (D.C. Cir. 1995) (explaining and reaffirming the
Safecard rule). Although the court has held that ‘‘govern-
ment officials do not surrender all rights to personal privacy
when they accept a public appointment,’’ Bast, 665 F.2d at
1255, we have not had occasion to decide whether the Safe-
card rule applies to former officials no longer in government
service.
7
We have recognized, however, that the privacy interest in
nondisclosure of identifying information may be diminished
where the individual is deceased. ‘‘The fact of death, there-
fore, while not requiring the release of information, is a
relevant factor to be taken into account in the balancing
decision whether to release information.’’ Schrecker, 254
F.3d at 166; accord Campbell v. United States Dep’t of
Justice, 164 F.3d 20, 33-34 (D.C. Cir. 1998); Summers v.
Dep’t of Justice, 140 F.3d 1077, 1084-85 (D.C. Cir. 1998)
(Silberman, J., concurring). Therefore, in the instant case,
we must review the District Court’s holding that the Govern-
ment has taken the necessary ‘‘basic steps to ascertain wheth-
er an individual was dead or alive.’’
B. The Instant Appeal
With this background in mind, we now turn to Schrecker’s
challenge to the District Court’s decision. We review de novo
a decision granting summary judgment to an agency claiming
to have complied with FOIA. Nation Magazine, 71 F.3d at
889.
1. The ‘‘Reasonable Efforts’’ Standard
Schrecker’s principal claim on appeal is that the Govern-
ment’s methods for determining life status are inadequate.
She asserts that an agency’s FOIA search methodology must
be ‘‘reasonably calculated’’ to produce the information sought.
See, e.g., Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir.
1990). Schrecker alleges that the Government’s search meth-
ods in this case are highly unlikely to reveal whether an
individual is living or dead, and cites as evidence the Govern-
ment’s failure to identify any specific instance in which its
methods resulted in the disclosure of a name.
In Campbell, we held that ‘‘[a] court balancing public
interests in disclosure against privacy interests must TTT
make a reasonable effort to account for the death of a person
on whose behalf the FBI invokes exemption 7(c).’’ 164 F.3d
at 33 (citing Summers, 140 F.3d at 1084-85 (Silberman, J.,
concurring); id. at 1085 (Williams, J., concurring)). In un-
dertaking the review required by Campbell, a court must
8
assure itself that the Government has made a reasonable
effort to ascertain life status. And the Government’s efforts
must be assessed in light of the accessibility of the relevant
information. See Summers, 140 F.3d at 1085 (‘‘[T]here would
be a question whether the Bureau’s invocation of the privacy
interest represented a reasonable response to the FOIA
request, at least if the Bureau has, or has ready access to,
data bases that could resolve the issue.’’ (emphasis added));
see also Truitt, 897 F.2d at 542 (‘‘The adequacy of an agency’s
search is measured by a ‘standard of reasonableness,’ and is
‘dependent upon the circumstances of the case.’ ’’ (footnote
and citation omitted)). We have cautioned, however, that it
would be inappropriate for the court to mandate ‘‘a bright-
line set of steps for an agency to take in this situation.
FOIA, requiring as it does both systemic and case-specific
exercises of discretion and administrative judgment and ex-
pertise, is hardly an area in which the courts should attempt
to micro manage the executive branch.’’ Johnson v. Execu-
tive Office for United States Attorneys, 310 F.3d 771, 776
(D.C. Cir. 2002).
The failure to discover the information sought is not conclu-
sive evidence that the agency has failed to make a reasonable
effort. See id. at 775-76 (upholding the adequacy of the
Government’s efforts despite its failure to determine whether
the individuals in question were alive or dead); see also, e.g.,
Weisberg v. United States Dep’t of Justice, 745 F.2d 1476,
1485 (D.C. Cir. 1984) (The relevant issue ‘‘is not whether
there might exist any other documents possibly responsive to
the request, but rather whether the search for those docu-
ments was adequate.’’ (emphasis in original)). The reviewing
court therefore should not focus primarily on the agency’s
rate of success in unearthing the information sought. Rather,
the proper inquiry is whether the Government has made
reasonable use of the information readily available to it, and
whether there exist reasonable alternative methods that the
Government failed to employ.
Schrecker’s criticisms of the Government’s methods are
numerous, but ultimately she advocates only two alternatives:
name-based searching of the SSDI and replacement of the
9
100-year rule with an alternative presumption. On the record
at hand, we see no merit in the alternative methods proposed
by Schrecker.
2. The Scope of Application of the Government’s Methods
Before turning to Schrecker’s method-specific arguments,
we pause to address her threshold objection that the affida-
vits submitted in support of the Government’s motion for
summary judgment are fatally vague. Specifically, she points
to the Fifth and Sixth Hodes Declarations’ reference to use of
certain tools as a matter of ‘‘discretion’’ or ‘‘where possible’’
as calling into question whether the tools were actually
applied to all the information withheld under Exemption 7(C).
We find no merit in this argument. The Sixth Hodes
Declaration unambiguously states that ‘‘all possible ‘tools’ TTT
were utilized in the processing of these documents in order to
maximize disclosure to plaintiff.’’ Sixth Hodes Decl. ¶ 13,
Joint Appendix (‘‘J.A.’’) 49-50. The references to employment
of certain methods in the FBI’s ‘‘administrative discretion’’
clearly indicate the Government’s position that it did opt to
apply the methods even though it was not legally required to
do so. See Fifth Hodes Decl. ¶ ¶ 10, 13, J.A. 34-36; Sixth
Hodes Decl. ¶ 14, J.A. 50. The Fifth Hodes Declaration’s
statement that the methods were used ‘‘where possible’’ is
similarly clear when read in context. See Fifth Hodes Decl.
¶ 10, J.A. 34. The Government took the position that it was
only possible: (1) to apply the 100-year rule where the
individual’s birth date appeared in the responsive pages, see
id. ¶ 11, J.A. 35; (2) to rely on a search of the SSDI where
the individual’s social security number appeared in the re-
sponsive documents, see id. ¶ 13, J.A. 35-36; and (3) to rely
upon institutional knowledge of the death of certain individu-
als from past FOIA requests where such knowledge existed.
See id. ¶ 12, J.A. 35. We address the reasonableness of the
Government’s methods below, but as a preliminary matter we
find that the Hodes Declarations adequately support the
Government’s assertion that the methods were affirmatively
and consistently applied to all of the information withheld.
10
3. Name-Based Searching of the SSDI
We concur with the District Court’s conclusion that a
researcher must have the target’s social security number in
order positively to verify that the individual appearing in the
SSDI is the same individual referred to in a responsive
document. See Schrecker, 217 F. Supp. 2d at 38. The
possibility of multiple matches for a single name necessitates
a ready and conclusive means of verifying that the individual
in the database and the individual in the FOIA record are one
and the same. See Sixth Hodes Decl. ¶ 16, J.A. 51-52; Reply
Br. Addendum 1 (showing 13 separate results from a name-
based search of the SSDI for Joseph Fischetti, the subject of
another of Schrecker’s FOIA requests). The fact that a
name-based search of the SSDI may reveal other identifying
information, such as the date and place of an individual’s
birth, does not obviate or diminish this need for ready
verification.
As noted above, the Government only searched the SSDI
where the social security number of the individual in question
appeared in the responsive pages. See Fifth Hodes Decl.
¶ 13, J.A. 35-36; Sixth Hodes Decl. ¶ ¶ 15-16, J.A. 51-52. The
Government specifically declined to go beyond the responsive
documents to investigate the individuals’ social security num-
bers, a policy it justified on two grounds: (1) that such
research would violate these third parties’ privacy rights; and
(2) that it would be unduly burdensome. Id.
We find the first of these justifications unpersuasive. The
Sixth Hodes Declaration states only that ‘‘[t]he records that
may possess these individuals’ Social Security numbers were
created either for law enforcement purposes or internal
administrative personnel purposes; they were not created
for the purpose of ascertaining whether individuals contained
in these records are alive or deceased for purposes of FOIA
requests.’’ Sixth Hodes Decl. ¶ 16, J.A. 52 (emphasis in
original). We fail to see how the purpose for which an
internal record was created bears on whether searching the
record for an individual’s social security number would violate
that individual’s privacy. If searching responsive documents
11
(created for law enforcement purposes) for social security
numbers is not barred by privacy concerns, it is unclear how
searching other internal documents would be. The Govern-
ment offers no further support for this ‘‘privacy’’ justification
nor can we discern any.
We nevertheless hold that it would be unduly burdensome
to require the Government to research nonresponsive records
for the relevant individuals’ social security numbers. We
have held that there are limits to the lengths to which an
agency must go in responding to a FOIA request. See
Nation Magazine, 71 F.3d at 891-92; Am. Fed’n of Gov’t
Employees, Local 2782 v. United States Dep’t of Commerce,
907 F.2d 203, 208-09 (D.C. Cir. 1990). The same principle
applies here. The record before us does not indicate whether
it would be possible to conduct an automated search of any
internal FBI files that might contain the social security
numbers of individuals whose names appear in responsive
documents of this vintage, or whether a physical search would
be necessary. Even if an automated search were possible,
any name-based search would likely encounter the same
obstacle posed by the SSDI: duplication of names making
verification difficult or impossible. The difficulties implicit in
such a search would be multiplied by the number of names
withheld. In this case, 113 such names appeared in the 100-
page Vaughn index alone, and the responsive documents
totaled over 24,000 pages. To require the Government to
shoulder such a potentially onerous task – with dubious
prospects of success – goes well beyond the ‘‘reasonable
effort’’ demanded in this context.
Our position is unaffected by Schrecker’s reference to the
example of Joseph Fischetti, the subject of another of her
FOIA requests. Schrecker asserts that the FBI accepted a
printout of the results of an SSDI search, showing 13 sepa-
rate hits, as proof of Fischetti’s death, and that the FBI
began processing his records on this basis. See Reply Br.
Addendum 1. As the District Court noted, however, Fischetti
was the sole subject of that FOIA request, not one of a
multitude of third parties appearing in responsive documents.
See Schrecker, 217 F. Supp. 2d at 38. While it may be
12
reasonable to pursue internal research to determine whether
a single subject is the same individual shown by the SSDI to
be deceased, we conclude that it would be unduly burdensome
to require the Government do so for the large number of
third parties appearing in documents responsive to Schreck-
er’s request.
4. The 100-Year Rule
Schrecker posits three distinct challenges to the Govern-
ment’s 100-year rule, but fails to establish that the rule is
unreasonable or to propose a viable alternative. Schrecker
first argues that the rule is doomed as an effective tool
because it is only invoked where the responsive records
contain the individual’s birth date, which is rare. See Fifth
Hodes Decl. Ex. A, J.A. 39-46 (showing birth dates for only
three of the 113 individuals appearing in the Vaughn index).
While Schrecker proposes no alternative means of ascertain-
ing the birth dates of the individuals in the records, we note
that requiring the Government to search beyond the respon-
sive records for such information would impose an unreason-
able burden similar to that required to search for an individu-
al’s social security number.
Second, Schrecker argues that 100 years is an unreason-
ably long time period upon which to base the rule. She
argues that current average life expectancy for both sexes is
less than 80 years, and that average life expectancy was lower
for the individuals appearing in the responsive records, all of
whom were adults in the late 1940s and early 1950s. Amici
flesh out this argument with numerical estimates derived
from actuarial tables compiled by the Social Security Admin-
istration. They assert that the median life expectancy for
males who were 30 and 40 years old in 1950 is about 74 years,
and the median life expectancy for females who were 30 and
40 years old in 1950 is about 82 years. Br. for Amici at 9
(citing FELICITIE C. BELL & MICHAEL L. MILLER, LIFE TABLES
FOR THE UNITED STATES SOCIAL SECURITY AREA 1900-2100 (Social
Security Administration Actuarial Study No. 116, Aug. 2002)
(Table 7, Cohort Life Tables for U.S. Social Security Area by
Year of Birth and Sex) (hereinafter ‘‘SSA Actuarial Study’’)).
13
Amici further contend that the chance that a male who was 30
in 1950 would live to be 100 is only 0.01%, while the chance
that a female who was 30 in 1950 would do so is only 2%. Br.
for Amici at 16 (calculations derived from SSA Actuarial
Study).
We find that the Government’s use of 100 years as the
basis for the rule nonetheless is reasonable. This baseline is
intended to prevent disclosure of personal information unless
it is highly probable that the individual in question is dead.
Amici’s statistics, if correct, confirm that the rule is properly
tailored to this purpose. The likelihood that living individu-
als’ personal information would be disclosed presumably
would increase proportionately with any reduction in the time
frame upon which the rule is based. While the 100-year rule
is more protective of personal privacy than Schrecker would
prefer, it is not unreasonable.
Third and finally, Schrecker asserts that, in the absence of
a birth date, the Government improperly presumes that indi-
viduals mentioned in records of this vintage are alive. Amici
provide statistical support, asserting that there is a 28%
chance that a man who was 30 in 1950 is alive today, and a 4%
chance that a man who was 40 in 1950 is still alive. Br. for
Amici at 8 (citing SSA Actuarial Study). There is a some-
what greater likelihood that an adult woman of that era is still
alive: 47% for a woman who was 30 in 1950, and 13% for a
woman who was 40 in 1950. Id.
We again find reasonable the Government’s prophylactic
presumption that the individuals whose names appear in
these records are alive. It may be more likely than not that
any given individual named in these records is dead. But
Amici’s own statistics, if correct, indicate that there remains a
substantial probability that a given individual is alive: about
one in two or greater for women who were 30 or younger in
1950, and about one in four or greater for men who were 30
or younger in 1950. Again, the Government’s rebuttable
presumption that an individual is alive is more protective of
personal privacy than Schrecker would like, but it is not
unreasonable.
14
5. Balancing of Privacy and Public Interests
Having determined that the Government has satisfied its
duty to investigate whether the relevant individuals are living
or dead, we now affirm the District Court’s finding that the
Government appropriately balanced public and privacy inter-
ests in withholding personal information under Exemption
7(C).
Our precedents give strong support to Government deci-
sions to withhold names and identifying information from law
enforcement records. See, e.g., Safecard Servs., 926 F.2d at
1206; Fitzgibbon, 911 F.2d at 767-68; Keys, 830 F.2d at 347-
48; King, 830 F.2d at 234-35; Senate of the Commonwealth
of Puerto Rico, 823 F.2d at 588; Bast, 665 F.2d at 1254-55;
Lesar, 636 F.2d at 487-88. Assuming that the ‘‘private’’
individuals mentioned in the records are living, their names
and identifying information are presumptively exempt from
disclosure under the Safecard rule. See Safecard Servs., 926
F.2d at 1206 (holding that information in law enforcement
records identifying private individuals is exempt from disclo-
sure unless release is necessary to ‘‘confirm or refute compel-
ling evidence that the agency is engaged in illegal activity’’);
Nation Magazine, 71 F.3d at 896 (reaffirming Safecard rule).
We have long recognized, moreover, that ‘‘the mention of
an individual’s name in a law enforcement file will engender
comment and speculation and carries a stigmatizing connota-
tion.’’ See Fitzgibbon, 911 F.2d at 767 (internal quotation
marks and citation omitted). Therefore, persons involved in
law enforcement investigations – witnesses, informants, and
the investigating agents – ‘‘have a substantial interest in
seeing that their participation remains secret.’’ Senate of the
Commonwealth of Puerto Rico, 823 F.2d at 588. Where, as
here, there is a reasonable possibility that the individuals in
question are alive, their privacy interests remain strong. The
passage of time, without more, does not materially diminish
these interests. See Keys, 830 F.2d at 348 (finding that
passage of 40 years did ‘‘not so dilute the privacy interest as
to tip the balance the other way’’); King, 830 F.2d at 234
15
(upholding nondisclosure of identifying information from 30-
to 40-year-old records).
The countervailing public interest in disclosure of the
names and other identifying information of those appearing in
the responsive documents is weak. Schrecker asserts that
disclosure of this information would shed light on the work-
ings of government by permitting closer public scrutiny of the
Eisler and Jencks investigations. But ‘‘[w]e have rejected
similar claims in the past because the type of information
sought is simply not very probative of an agency’s behavior or
performance.’’ Safecard Servs., 926 F.2d at 1205. Whatever
the incremental value of disclosure of the names in the Eisler
and Jencks records, it does not outweigh the relevant individ-
uals’ clear and significant privacy interest in nondisclosure of
their personal information. See, e.g., Bast, 665 F.2d at 1255
(finding that the putative value of releasing redacted informa-
tion did not outweigh the invasion of personal privacy). The
Government therefore was justified in withholding this infor-
mation under Exemption 7(C).
III. CONCLUSION
For the reasons set forth above, we affirm the District
Court’s decision granting summary judgment to the Govern-
ment.