United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2014 Decided May 9, 2014
No. 13-5064
AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL
LIBERTIES UNION FOUNDATION,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01157)
Arthur B. Spitzer argued the cause for appellants. With
him on the briefs were Catherine Crump and David L. Sobel.
John S. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Stuart F. Delery, Assistant Attorney General, Ronald C.
Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney.
Before: TATEL, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
Concurring opinion filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge BROWN.
TATEL, Circuit Judge: Three years ago, in American Civil
Liberties Union v. U.S. Department of Justice, 655 F.3d 1
(D.C. Cir. 2011) (ACLU I), this court held that the Freedom of
Information Act required the Justice Department to disclose
case names and docket numbers for prosecutions in which the
government had obtained cellular phone tracking data without
a warrant and the defendant had ultimately been convicted.
The court left open the question whether the Department
would also have to disclose docket information for similar
prosecutions in which the defendant had been acquitted or had
the charges dismissed. Now squarely facing just that question,
we conclude that given the substantial privacy interest
individuals have in controlling information concerning
criminal charges for which they were not convicted, the
Department has properly withheld this information.
I.
In order to “open agency action to the light of public
scrutiny,” Department of the Air Force v. Rose, 425 U.S. 352,
361 (1976) (internal quotation marks omitted), FOIA requires
federal agencies, “upon request, to make ‘promptly available
to any person’ any ‘records’ so long as the request
‘reasonably describes such records,’” Assassination Archives
& Research Center v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)
(quoting 5 U.S.C. § 552(a)(3)). This broad statutory mandate
is subject to certain enumerated exemptions. See 5 U.S.C.
§ 552(b)(1)–(9). At issue here is FOIA Exemption 7(C),
which provides that an agency may withhold “records or
information compiled for law enforcement purposes” if
disclosure “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Id. § 552(b)(7).
3
Determining whether an invasion of privacy is “unwarranted”
within the meaning of Exemption 7(C) requires, as the
Supreme Court held in U.S. Department of Justice v.
Reporters Committee for Freedom of the Press, 489 U.S. 749,
776 (1989), “balanc[ing] the public interest in disclosure
against the interest [in privacy] Congress intended the
Exemption to protect.”
In Reporters Committee, the Supreme Court considered
the applicability of Exemption 7(C) to a request for an alleged
mob figure’s “rap sheet”—a document compiled by the FBI
that “contain[ed] certain descriptive information, such as date
of birth and physical characteristics, as well as a history of
arrests, charges, convictions, and incarcerations.” Id. at 752.
Holding that the disclosure of such rap sheets implicates a
substantial privacy interest, id. at 771, the Court rejected the
contention that any interest in avoiding disclosure
“approaches zero” simply because “events summarized in a
rap sheet have been previously disclosed to the public,” id. at
762–63. The Court explained that an individual’s interest in
privacy “encompass[es] the individual’s control of
information concerning his or her person,” id. at 763, even
though “the information may have been at one time public,”
id. at 767. Disclosure of a rap sheet, the Court found, was
particularly troubling because it would in one fell swoop
bring to light many facts about a person that might otherwise
be subject to little public scrutiny. See id. at 769–71; see also
id. at 764 (emphasizing the “distinction, in terms of personal
privacy, between scattered disclosure of the bits of
information contained in a rap sheet and revelation of the rap
sheet as a whole”). On the other side of the balance, the Court
found the public interest in disclosure to be fairly limited
because a rap sheet would reveal little about “the
Government’s activities.” Id. at 754. Thus, the Court held “as
a categorical matter” that granting a “third party’s request for
4
law enforcement records or information about a private
citizen” that “seeks no ‘official information’ about a
Government agency” would constitute an “‘unwarranted’”
invasion of privacy. Id. at 780.
The case now before us arose after the American Civil
Liberties Union learned that federal law enforcement agencies
were, without first securing a warrant, obtaining data from
cellular phone companies that could be used to track phone
users’ whereabouts. The ACLU filed FOIA requests with the
Drug Enforcement Administration and the Executive Office
for United States Attorneys, seeking, among other things,
records related to: “The case name, docket number, and court
of all criminal prosecutions, current or past, of individuals
who were tracked using mobile location data, where the
government did not first secure a warrant based on probable
cause for such data.” To compel production of these records,
the ACLU then sued the Department of Justice.
In response, the Department identified a large number of
prosecutions—the total count is currently 229—in which a
judge had, since September 2001, granted the government’s
application to obtain cell phone location data without making
a probable cause determination. The Department refused to
turn this list of cases over to the ACLU, claiming that the
information fell within FOIA Exemption 7(C).
The parties each moved for summary judgment. The
district court, then Judge Robertson, concluded that each of
the individuals who had been prosecuted in these cases had a
privacy interest in preventing disclosure of the requested
information. The court went on to draw a distinction that
neither party had directly advanced, according “a greater
privacy interest to persons who were acquitted, or whose
cases were dismissed or sealed (and remain under seal), and a
5
considerably lesser privacy interest to persons who were
convicted, or who entered public guilty pleas.” American
Civil Liberties Union v. U.S. Department of Justice, 698 F.
Supp. 2d 163, 166 (D.D.C. 2010). Determining that “the
public has a substantial interest in the subject of cell phone
tracking” that would be advanced by the requested disclosure,
the court held that “the public interest in ‘what the
government is up to’ outweighs the privacy interests of
persons who have been convicted of crimes or have entered
public guilty pleas; but . . . the privacy interests of persons
who have been acquitted, or whose cases have been sealed
and remain under seal, or whose charges have been dismissed,
outweigh the public interest in disclosure of their names and
case numbers.” Id. The district court therefore directed the
Department to disclose the requested information regarding
prosecutions in which the government had secured a
conviction but permitted it to withhold the information
regarding the remaining cases.
Both sides appealed, and this court affirmed in part. We
began our analysis by noting that, although the ACLU sought
only the case name, court, and docket number of these
prosecutions, courts “evaluating the privacy impact of the
release of information . . . have taken into consideration
potential derivative uses of that information.” ACLU I, 655
F.3d at 7. The derivative uses to be made with the requested
docket information were fairly substantial: with “little work,”
someone could “look up the underlying case files in the public
records of the courts,” id., and could even attempt to contact
the defendants, or their attorneys, directly, id. at 11–12.
Nevertheless, we concluded that, with respect to those
defendants who had ultimately been convicted, disclosure
“would compromise more than a de minimis privacy interest,
[but] it would not compromise much more.” Id. at 12. We
emphasized that, unlike in Reporters Committee, the
6
requested information pertained only to a single, relatively
recent prosecution, the details of which were already “readily
available to the public” and not at all “‘practical[ly]
obscure[].’” Id. at 9 (quoting Reporters Committee, 489 U.S.
at 762) (alteration in original). As for the public interest, we
determined that disclosure would have the significant benefit
of “shedding light on the scope and effectiveness of cell
phone tracking as a law enforcement tool,” helping to “inform
[the] ongoing public policy discussion” regarding the
propriety of warrantless cell phone tracking. Id. at 13. “[I]n
light of the strength of [this] public interest . . . and the
relative weakness of the privacy interests at stake,” we held
that the district court had correctly rejected the Department’s
contention that production of this docket information would
represent an “‘unwarranted’ invasion of privacy under
Exemption 7(C).” Id. at 16.
Significantly, however, we did not affirm the district
court’s holding that information regarding acquittals,
dismissals, or sealed cases could be withheld. We did observe
that the distinction the district court had drawn “makes some
intuitive sense, as both parties agree that the disclosure of
information regarding [such cases] raises greater privacy
concerns than the disclosure of information regarding public
convictions or public pleas.” Id. at 17. But, we continued,
“whether that is enough of a distinction to justify withholding
under Exemption 7(C) is a harder question.” Id. Because it
was unclear from the record whether there were any cases that
fell within this category, we opted to forgo resolving the
issue, instead vacating this portion of the district court’s
decision and “remand[ing] the case for th[e] court to
determine whether any of the docket numbers refer to cases in
which the defendants were acquitted, or to cases that were
dismissed or sealed.” Id.
7
Following our remand, the Department identified 214
prosecutions that had resulted in convictions or public guilty
pleas and released the docket information for these cases. This
left a total of fifteen prosecutions that were responsive to the
ACLU’s request and had ended in dismissals or acquittals, or
had been sealed. Because the ACLU did not challenge the
Department’s authority to withhold the information regarding
sealed cases, only six remain at issue—four of which were
resolved by dismissal and two that ended in acquittal.
American Civil Liberties Union v. U.S. Department of Justice,
923 F. Supp. 2d 310, 313 (D.D.C. 2013). Having established
that these six cases in fact existed, Judge Amy Berman
Jackson, to whom the case was assigned after Judge
Robertson’s retirement, again granted the Department’s
motion for summary judgment. Id. at 314.
The ACLU appeals, thus presenting us with the “harder
question” we were previously able to avoid. ACLU I, 655
F.3d at 17. Our review is de novo. “In the FOIA context this
requires that we ascertain whether the agency has sustained its
burden of demonstrating that the documents requested are . . .
exempt from disclosure under the FOIA.” Id. at 5 (internal
quotation marks omitted).
II.
As in our previous decision, we begin by assessing the
privacy interest at stake. The Department argues that
“prosecuted-but-not-convicted individuals are . . . in a similar
position to persons investigated or arrested but not
prosecuted,” and that this court has “accord[ed] a strong
privacy interest to such individuals.” Appellee’s Br. 19. The
ACLU argues that the privacy interests of defendants whose
prosecutions resulted in dismissals or acquittals are only
“marginally greater” than those of defendants who were
8
convicted—which, as we held in our prior decision, are nearly
de minimis. Appellants’ Br. 20. Each party overstates its case.
It is true, as the Department observes, that we have
regularly concluded that individuals have a “strong interest”
in avoiding disclosure of their involvement in “alleged
criminal activity.” Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.
Cir. 1990) (internal quotation marks omitted); accord, e.g.,
People for the Ethical Treatment of Animals v. National
Institute of Health, No. 12-5183, slip op. at 9 (D.C. Cir. Mar.
14, 2014); Fund for Constitutional Government v. National
Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir.
1981). Those decisions, however, dealt with individuals who
were either the subject of or involved in government
investigations of criminal activity but never charged with a
crime. See ACLU I, 655 F.3d at 7 n.8. Such individuals’
privacy interests are strong in part because disclosure would
“reveal[] to the public that the individual had been the subject
of an . . . investigation.” Baez v. U.S. Department of Justice,
647 F.2d 1328, 1338 (D.C. Cir. 1980) (emphasis added);
accord, e.g., Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C.
1987). The privacy interest in preventing disclosure is
diminished, however, if the fact of someone’s involvement in
alleged criminal activity is already a matter of public record—
as will be the case when a defendant was indicted. See
Reporters Committee, 489 U.S. at 763; ACLU I, 655 F.3d at 7
& n.8. Thus, we disagree with the Department that those who
have been acquitted or had their cases dismissed and whose
involvement in alleged criminal activity has already been
publicly revealed are in the same situation as those who were
never charged in the first place.
We likewise disagree with the ACLU that the privacy
interests of defendants who were indicted but not convicted
are essentially indistinguishable from those of defendants who
9
were convicted. To be sure, many of the factors we
considered important in concluding that convicted defendants
have a relatively weak privacy interest are equally applicable
to those individuals whose interests we now consider here. In
particular, just as was true with respect to convicted
defendants, the requested docket information regarding
defendants who were charged but not convicted would
“disclose only information that has already been the subject of
a public proceeding,” is “available in public records,” ACLU
I, 655 F.3d at 8, and is likely readily accessible by the public
through “computerized government services like PACER” or
even a simple “Google search for that person’s name,” id. at
10. Indeed, as we have observed, this prior public exposure is
precisely what distinguishes the individuals whose interests
we consider in this case from those who have been
investigated but not charged. But the fact that information
about these individuals’ cases is a matter of public record
simply makes their privacy interests “fade,” not disappear
altogether. ACLU I, 655 F.3d at 9 (internal quotation marks
omitted); see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,
494–95 (1975) (“[T]he interests in privacy fade when the
information involved already appears on the public record.”);
see Reporters Committee, 489 U.S. at 767 (“[O]ur cases have
. . . recognized the privacy interest inherent in the
nondisclosure of certain information even where the
information may have been at one time public.”). Consistent
with our decision in ACLU I, we reject the dissent’s surrender
of any reasonable expectation of privacy to the Internet—a
surrender that would appear to result from a failure to
distinguish between the mere ability to access information and
the likelihood of actual public focus on that information. See
Dissenting Op. at 4–6; cf. United States v. Jones, 132 S. Ct.
945, 964 (2012) (Alito, J., concurring) (concluding that
individuals generally have a reasonable expectation in being
free of long-term GPS surveillance notwithstanding the ready
10
availability of this technology); id. at 957 (Sotomayor, J.,
concurring) (suggesting that “it may be necessary to
reconsider the premise that an individual has no reasonable
expectation of privacy in information voluntarily disclosed to
third parties,” as that “approach is ill suited to the digital
age”). And if individuals not convicted have a substantially
greater privacy interest than convicted individuals to start
with, then even after both interests are discounted due to prior
public revelation, the former interest will remain substantially
greater than the latter.
In our view, defendants whose prosecutions ended in
acquittal or dismissal have a much stronger privacy interest in
controlling information concerning those prosecutions than
defendants who were ultimately convicted. The presumption
of innocence stands as one of the most fundamental principles
of our system of criminal justice: defendants are considered
innocent unless and until the prosecution proves their guilt
beyond a reasonable doubt. See Coffin v. United States, 156
U.S. 432, 453 (1895) (“The principle that there is a
presumption of innocence in favor of the accused is the
undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our
criminal law.”). Individuals who are charged with a crime and
ultimately prevail of course remain entitled to a version of this
presumption. In the eyes of the law, they are not guilty. Cf.
Herrera v. Collins, 506 U.S. 390, 399–400 (1993) (following
conviction, “the presumption of innocence disappears,” and
“[t]hus, in the eyes of the law, petitioner does not come before
the Court as one who is ‘innocent’”). Unfortunately, public
perceptions can be quite different. Aware of the heavy burden
of proof that the government must satisfy in a criminal
prosecution, many may well assume that individuals charged
with a crime likely committed that crime regardless of how
the case was ultimately resolved. “We all know,” ACLU
11
counsel candidly observed at oral argument, “there are some
guilty people who are not convicted.” Oral Arg. Rec. 27:03–
:08. Or as former Secretary of Labor Raymond Donovan
wondered after being acquitted of larceny and fraud, “Which
office do I go to to get my reputation back?” Selwyn Raab,
Donovan Cleared of Fraud Charges by Jury in Bronx, N.Y.
Times, May 26, 1987, at A1. Thus, if the right to privacy is, at
its essence, “the right to be let alone,” Olmstead v. United
States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting),
those who are acquitted or whose charges are dismissed have
an especially strong interest in being let alone. Although the
fact that such defendants were accused of criminal conduct
may remain a matter of public record, they are entitled to
move on with their lives without having the public reminded
of their alleged but never proven transgressions.
This special interest in shielding those charged with but
not convicted of a crime is reflected in state laws that limit the
disclosure of criminal history summaries involving data other
than convictions. See, e.g., Conn. Gen. Stat. § 54-142n
(“Nonconviction information other than erased information
may be disclosed only to: (1) Criminal justice agencies . . . ;
(2) agencies and persons which require such information to
implement a statute or executive order that expressly refers to
criminal conduct; (3) agencies or persons authorized by a
court order, statute or decisional law to receive criminal
history record information.”); Haw. Rev. Stat. § 846-9
(providing that “[d]issemination of nonconviction data shall
be limited” to certain specified entities, but that “[t]hese
dissemination limitations do not apply to conviction data”);
see also Reporters Committee, 489 U.S. at 754 n.2 (observing
that “[i]n general, conviction data is far more available
outside the criminal justice system than is nonconviction
data,” and that in “47 states nonconviction data cannot be
disclosed at all for non-criminal justice purposes, or may be
12
disclosed only in narrowly defined circumstances” (internal
quotation marks omitted)). It is also reflected in statutes and
court decisions providing for the sealing of cases in which the
defendant was never convicted. See, e.g., N.Y. Crim. Proc.
Law § 160.50 (“Upon the termination of a criminal action or
proceeding against a person in favor of such person . . . ,
unless . . . the court . . . determines that the interests of justice
require otherwise . . . , the record of such action or proceeding
shall be sealed . . . .”); Ohio Rev. Code § 2953.52 (“Any
person, who is found not guilty of an offense by a jury or a
court or who is the defendant named in a dismissed
complaint, indictment, or information, may apply to the court
for an order to seal the person’s official records in the case.”);
see also John P. Sellers, III, Sealed with an Acquittal: When
Not Guilty Means Never Having to Say You Were Tried, 32
Cap. U. L. Rev. 1 (2003) (describing Ohio courts’ expansive
use of this power). Perhaps most important for our purposes,
it is an interest whose relative significance is reflected in our
prior decision in this case, in which we observed that the
privacy interests of defendants who have been convicted “are
weaker than for individuals who have been acquitted or
whose cases have been dismissed.” ACLU I, 655 F.3d at 7;
see also id. at 8 (emphasizing that, unlike in Reporters
Committee, the requested disclosure would “disclose only
information concerning a conviction or plea; it would not
disclose mere charges or arrests”). Indeed, even our dissenting
colleague appears to acknowledge the relative strength of this
interest. See Dissenting Op. at 2 (stating that the privacy
interests here are “marginally greater than they were in ACLU
I”).
Release of the docket information the ACLU seeks would
substantially infringe this privacy interest. It would create the
risk—perhaps small, see ACLU I, 655 F.3d at 10–11, but
nonetheless real—that renewed attention would be paid to the
13
individuals who were the subject of these prosecutions. While
this attention would have been warranted at the time of
indictment, now that these defendants have been acquitted or
had the relevant charges dismissed they have a significant and
justified interest in avoiding additional and unnecessary
publicity. For example, someone who had been acquitted of
accounting fraud after a full and fair trial, moved on with his
life, and started a family might be especially dismayed were
his neighbors, friends, and family to learn about his previous
prosecution due to the publicity associated with the release of
the requested information. Or what of a defendant charged
with producing child pornography whose case was dismissed
after the government identified the real perpetrator, yet is
nevertheless viewed with suspicion by those who learn of his
mere involvement in such a case? If, as the Supreme Court
put it in Reporters Committee, an “ordinary citizen” has a
privacy interest “in the aspects of his or her criminal history
that may have been wholly forgotten,” certainly that interest is
particularly great when the ordinary citizen was never actually
convicted but nonetheless might be presumed by the public to
have been guilty. 489 U.S. at 769. Release of this information
would also permit the ACLU or others to contact the
defendants in question in order to learn more about their
cases, something the ACLU has expressly told us it plans to
do. Though “relatively minimal,” ACLU I, 655 F.3d at 11,
such an intrusion may be especially undesirable for
individuals who are understandably trying to put their past
ensnarement in the criminal justice system behind them.
III.
Having concluded that defendants who were acquitted or
had their cases dismissed have a substantial privacy interest at
stake, we must now balance this interest against the public
interest in disclosure. Such balancing decisions, generally
speaking, are among the most challenging sorts of cases that
14
judges face. Indeed, the task brings to mind the rhetorical
question often attributed to Chief Justice Traynor of the
California Supreme Court: “Can you weigh a bushel of
horsefeathers against next Thursday?” Brainerd Currie, The
Disinterested Third State, 28 Law & Contemp. Probs. 754,
754 (1963); cf. also William Prosser, Res Ipsa Loquitur in
California, 37 Cal. L. Rev. 183, 225 (1949) (“A presumption
. . . can no more be balanced against evidence than ten pounds
of sugar can be weighed against half-past two in the
afternoon.”) (internal quotation marks omitted)). In this case,
however, the comparison is not so amorphous and the
balance, while close, is nonetheless clear.
The ACLU argues that because warrantless cellphone
tracking remains an issue of great public concern, the public
interest in disclosure is the same as it was the last time this
case was before us. According to the Department, however,
the public interest in the disclosure of these six prosecutions is
reduced by the prior disclosure of the 214 prosecutions that
resulted in convictions. In support, the Department relies on
Schrecker v. U.S. Department of Justice, 349 F.3d 657 (D.C.
Cir. 2003), in which we observed that a court’s “inquiry” into
the interest in disclosure “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.” Id. at 661 (emphasis added).
We have no need to wade into this debate. Even
assuming, as the ACLU contends, that the public interest in
the disclosure here equals that in ACLU I, that interest pales in
comparison to the substantial interests in privacy that are now
at stake. The line drawn by Judge Robertson between
prosecutions that result in convictions and those that result in
dismissals or acquittals is not just one that “makes some
intuitive sense,” as we put it in our prior opinion; it is, we
15
now hold, a distinction that is fully consistent with FOIA.
Given the fundamental interest individuals who have been
charged with but never convicted of a crime have in
preventing the repeated disclosure of the fact of their
prosecution, we have little hesitation in concluding that
release of the remaining information the ACLU seeks “could
reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Indeed, the
government, having brought the full force of its prosecutorial
power to bear against individuals it ultimately failed to prove
actually committed crimes, has a special responsibility—a
responsibility it is fulfilling here—to protect such individuals
from further public scrutiny.
IV.
One last issue demands our attention. The ACLU argues
that neither this court nor the district court could properly
conclude that the Exemption 7(C) balance tilts in favor of
withholding because the Department has failed to provide the
information necessary to make that determination. The ACLU
lists seventeen facts the Department has refused to provide—
facts relating to the specifics of the litigation in these six
cases, the particular defendants charged, and the degree to
which the cases received prior publicity. This information, it
claims, might either increase the public benefit that would
flow from disclosure of this particular docket information or
decrease the privacy interest at stake. To the extent they are
relevant at all, however, sixteen of the seventeen specifics the
ACLU contends the Department should have produced are
facts for which the burden of production actually lies with the
ACLU. See National Archives & Records Administration v.
Favish, 541 U.S. 157, 172 (2004) (“Where the privacy
concerns addressed by Exemption 7(C) are present, the
exemption requires the person requesting the information to
establish a sufficient reason for the disclosure.”); Afshar v.
16
Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)
(“[A] plaintiff asserting a claim of prior disclosure must bear
the initial burden of pointing to specific information in the
public domain that appears to duplicate that being withheld.”).
The one piece of information requested by the ACLU that
the government would have to produce is whether any of the
defendants have died. As we have held, not only is an
individual’s death “a relevant factor” in assessing the privacy
interests implicated by a disclosure involving that individual,
but in some circumstances the government must take “certain
basic steps to ascertain whether an individual [is] dead or
alive.” Schrecker v. U.S. Department of Justice, 254 F.3d 162,
166–67 (D.C. Cir. 2001). But although death may “diminish”
the relevant privacy interests, it “by no means extinguishes”
them because “one’s own and one’s relations’ interests in
privacy ordinarily extend beyond one’s death.” Id. at 166; see
also Swidler & Berlin v. United States, 524 U.S. 399, 407
(1998) (holding that the attorney-client privilege survives the
client’s death because “[c]lients may be concerned about
reputation, civil liability, or possible harm to friends or
family” and “[p]osthumous disclosure . . . may be as feared as
disclosure during the client’s lifetime”). Here, even assuming
any of the six individuals who were the subject of the
prosecutions at issue have died, the relevant privacy interests
remain substantial. Deceased defendants never convicted of a
crime retain a reputational interest in keeping information
concerning their prosecutions out of the public eye. They may
also have family members who themselves have a legitimate
interest in avoiding the increased scrutiny that could follow
from the release of the requested docket information. Cf.
Favish, 541 U.S. at 170 (“FOIA recognizes surviving family
members’ right to personal privacy with respect to their close
relative’s death-scene images.”). Given the substantial nature
of these interests, we conclude that withholding the requested
17
docket information would be justified under Exemption 7(C)
even if some or all of the underlying defendants were dead.
Accordingly, the district court properly granted the
Department’s motion for summary judgment notwithstanding
the Department’s apparent failure to investigate this issue.
V.
For the forgoing reasons, we affirm the district court’s
grant of summary judgment to the Department.
So ordered.
TATEL, Circuit Judge, concurring: The court’s opinion
assumes without deciding that the public interest in disclosure
of the docket information for these six prosecutions is just as
great as was the interest in disclosing the information for the
214 prosecutions the Justice Department was previously
ordered to release. See Majority Op. at 14. I write separately
to explain why I believe this prior disclosure has substantially
reduced the value of the remaining information the ACLU
continues to seek, thus further tilting the balance in favor of
withholding.
In evaluating the public benefit of disclosure under FOIA
Exemption 7(C), D.C. Circuit precedent requires that we
focus on the “incremental value” of the “specific information”
sought. Schrecker v. U.S. Department of Justice, 349 F.3d
657, 661 (D.C. Cir. 2003); accord, e.g., Bast v. U.S.
Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981);
King v. U.S. Department of Justice, 830 F.2d 210, 234–35
(D.C. Cir. 1987). That is, instead of simply asking whether
there might be some general public interest in the subject
matter of the FOIA request, we ask whether and how the
information sought in a particular FOIA request will actually
cast light on the government’s activities. See, e.g., ACLU v.
U.S. Department of Justice, 655 F.3d 1, 12–16 (D.C. Cir.
2011) (ACLU I). Examining the incremental value of a given
disclosure follows from the basic purpose of the Exemption
7(C) balancing test: determining whether a particular record
or piece of information is worth the privacy costs of release
requires an assessment of the potential benefits that would
actually flow from release.
When assessing the “incremental value” of the
information sought, we of course apply the common sense
notion that the value of information depends on the mix of
data already publicly available—including that previously
released by the agency subject to the FOIA request. In U.S.
Department of State v. Ray, 502 U.S. 164 (1991), the
2
Supreme Court illustrated this approach in the process of
analyzing the benefit of disclosing information retained
pursuant to FOIA Exemption 6, a parallel exemption that
authorizes withholding records if disclosure would “constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). In Ray, the State Department had released
documents relating to its efforts to monitor Haiti’s compliance
with its promise not to persecute certain refugees. In doing so,
however, the State Department redacted information
regarding the identity of the refugees—information that, as
the Court recognized, would, in a vacuum, have been helpful
to the FOIA requesters because it would have enabled them to
track down the refugees and ask them about any persecution.
See Ray, 502 U.S. at 171, 177; cf. id. at 179 (observing that
the Court’s resolution of the case allowed it to avoid deciding
whether derivative uses of disclosed information could
qualify as a public interest in disclosure); ACLU I, 655 F.3d at
15 (“this court takes derivative uses into account in evaluating
the impact of disclosure on the public interest”). The dissent
cannot simply misquote away the value of this information.
See Dissenting Op. at 9 (quoting from section of the Court’s
opinion describing the Eleventh Circuit’s conclusion “that the
redacted information would not, in and of itself, tell
respondents anything about Haiti’s treatment of the returnees
or this Government’s honesty, but . . . the indirect benefit of
giving respondents the means to locate the Haitian returnees
and to cross-examine them provided a public value that
required disclosure,” Ray, 502 U.S. at 170–71.) Nevertheless,
the Court rejected an effort to ascertain the refugees’
identities because the “public interest” had already been
“adequately served by disclosure of the redacted interview
summaries.” Ray, 502 U.S. at 178. It explained that the
released “documents reveal how many returnees were
interviewed, when the interviews took place, the contents of
individual interviews, and details about the status of the
3
interviewees.” Id. Thus, it concluded, “[t]he addition of the
redacted identifying information would not shed any
additional light on the Government’s conduct of its
obligation.” Id. (emphasis added). As the Court reiterated in
even clearer language: “[T]here is nothing in the record to
suggest that a second series of interviews with the already-
interviewed returnees would produce any relevant information
that is not set forth in the documents that have already been
produced.” Id. at 179; accord, e.g., Painting & Drywall Work
Preservation Fund v. Department of Housing & Urban
Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991)
(concluding that the public interest in the disclosure of worker
records that would provide information on agency
enforcement efforts was minimal because interested parties
could obtain similar information through alternative means).
Perhaps, as the dissent suggests, the relevant privacy interest
in Ray was more substantial than here. See Dissenting Op. at
8. But FOIA requires us to balance privacy interests against
the benefits of disclosure, and the critical point for our
purposes is that in Ray the Court evaluated the latter by
examining the incremental effect of the information sought in
light of prior disclosures.
Consistent with the forgoing principles, and given the
unique way in which this case has evolved, I believe that the
public interest at issue here is less than it was when the case
was previously before us. Of course, there is little doubt that
“[t]he use of and justification for warrantless cell phone
tracking” continues to be a “topic of considerable public
interest.” ACLU I, 655 F.3d at 12; see, e.g., Kate Zernike,
Court Restricts Police Searches of Phone Data, N.Y. Times,
July 19, 2013, at A1 (describing differing positions taken by
courts on the legality and propriety of this investigatory
technique); Joe Palazzolo, Montana Requires Warrants for
Cell Phone Tracking, Wall St. J. L. Blog, June 21, 2013,
4
http://blogs.wsj.com/law/2013/06/21/montana-requires-
warrants-for-cell-phone-tracking (describing efforts by states
to require police to obtain a warrant in order to access cell
phone tracking information). The disclosure of these six cases
could also “shed[]” at least some additional “light on the
scope and effectiveness” of this practice. ACLU I, 655 F.3d
at 13.
But most of the benefit we anticipated from the release of
the requested docket information flowed from the fact that
access to a large sample of prosecutions would provide a basis
for the public to discern general trends regarding the
government’s use of cellphone tracking data and the means by
which the government obtains such data. For example, we
observed that disclosure would “provide information about
the kinds of crimes the government uses cell phone tracking
data to investigate,” the “standards the government uses to
justify warrantless tracking,” and “facts regarding the duration
of tracking and the quality of tracking data.” Id. at 13–14. As
a result of the district court’s and our own prior decisions,
however, the Department has already released docket
information for 214 prosecutions in which the government
obtained cell phone tracking data without a warrant, and those
214 cases presumably provide much of the necessary basis for
assessing when, how, and why the government utilizes this
particular investigative tool. Compare with id. at 14–15
(rejecting government’s argument that release of the
information was unnecessary due to the “extensive public
attention that this issue is already receiving,” because “much
of the information the plaintiffs seek to develop from the
FOIA disclosure . . . is not currently in the public domain”
(internal quotation marks omitted)). True, the six remaining
cases could contain some interesting anecdotal evidence: the
ACLU speculates that it is “more likely that a failed
prosecution involved” a “motion[] to suppress evidence
5
derived from cell phone tracking,” and that suppression
hearings are particularly likely to yield useful information.
Appellants’ Br. 33–34; see also ACLU I, 655 F.3d at 14
(describing information that could be derived from
suppression hearings). Even so, if the Department’s disclosure
of 214 prosecutions has failed to reveal the nature and extent
of the government’s practice of obtaining cell phone tracking
data without a warrant, the probability that disclosure of these
six remaining cases would yield significant benefits is
relatively low. To paraphrase the Supreme Court in Ray, there
is little to suggest that these six cases “would produce any
relevant information that is not set forth in the [214
prosecutions] that have already been produced.” 502 U.S.
at 179.
The ACLU argues that applying the “incremental value”
test in this fashion would give federal agencies license to
arbitrarily withhold portions of requested records—
presumably “the more important or embarrassing responsive
records”—on the ground that the public interest in disclosure
will be satiated by the records they choose to actually release.
Appellants’ Br. 35. Although I have no doubt that this court
would look with great suspicion on any attempt to manipulate
FOIA in this fashion, this case involves no such mischief. It is
well-established that federal agencies may disclose particular
records or portions of records responsive to a request without
disclosing all responsive records so long as they have some
legitimate FOIA-based reason for doing so. See 5 U.S.C.
§ 552(b) (“Any reasonably segregable portion of a record
shall be provided to any person requesting such record after
deletion of the portions which are exempt . . . .”);
Assassination Archives & Research Center v. CIA, 334 F.3d
55, 58 (D.C. Cir. 2003); see also, e.g., Ray, 502 U.S. at 178–
79; King, 830 F.2d at 234–35 (D.C. Cir. 1987) (permitting
government to release investigative report with portions
6
redacted in order to protect privacy interest of individuals
named). When, for example, an agency withholds certain
records that implicate greater privacy interests than those it
releases, and then evaluates the public benefit of releasing
these remaining records in light of the information already
released, it acts just as FOIA requires—efficiently trading off
privacy costs and disclosure benefits. That is almost exactly
what happened here. Having released all of the information
our prior decision required, the Department now resists
disclosure of a particular type of information that implicates
stronger privacy interests. That being so, I see no reason to
now disregard this prior disclosure. Just as we would certainly
take account of the existence of the docket information for
these 214 cases had it been uncovered and published by the
Washington Post, we may take account of it here even though
its release resulted from this litigation.
BROWN, Circuit Judge, dissenting: While I sympathize
with the court’s protective instincts, I subscribe to Lady
Macbeth’s drear insight: “What’s done cannot be undone.”
Redemption is still possible, but in the modern world, the
right to be left alone, once forfeited, is gone for good. An
individual who is indicted and tried has no privacy interest
that can protect the public record of prosecution from
disclosure—even if the ultimate outcome was acquittal or
dismissal. The residual privacy concerns we identified in
ACLU I are insufficient to meet the Exemption 7(C)
threshold. There we noted that the privacy right at common
law rested in large part on the “degree of dissemination,” and
that “interests in privacy fade” when the information is
already part of the public record and is readily available. Am.
Civil Liberties Union v. U.S. Dep’t of Justice (ACLU I), 655
F.3d 1, 9 (D.C. Cir. 2011). Because the privacy interest here
started small and the pace of technology continues to diminish
it, I respectfully dissent.
At the outset, I should note the court does get one thing
right. As a general matter, judges tasked with balancing
equally metaphysical concepts, like privacy and the public
interest, face what are among the most difficult and largely
standardless endeavors. See Reporters Comm. for Freedom of
Press v. U.S. Dep’t of Justice, 816 F.2d 730, 741 (D.C. Cir.
1987) (expressing doubt that there is any principled basis for
federal judges to make such ad hoc and idiosyncratic
determinations). Even so, I agree the balancing in this case is
relatively clear. The six disputed records already exist in the
public domain. Indeed, the court acknowledges the records
are accessible via a simple Google search or through PACER.
Furthermore, the court correctly determines the public interest
in disclosure is no more or less than it was in ACLU I. There,
we characterized the public interest as “significant.” ACLU I,
655 F.3d at 12. With one arm of the balance thus weighted,
the only question is whether the privacy interests of
unconvicted persons tip the scales against disclosure. The
2
court today holds that the contest, while close, is nevertheless
convincingly won by a supposedly more substantial privacy
interest. I am not persuaded. On balance, the permanence
and accessibility of the records render any privacy interests
only marginally greater than they were in ACLU I, thus
tipping the balance in favor of disclosure.
The majority’s privacy analysis rests on two pillars: the
presumption of innocence and the common law of
informational privacy. Both notions have shortcomings.
First, the presumption of innocence is an artifact of the
common law’s adversarial approach to the question of guilt.
What authority exists for the proposition that the presumption
of innocence affords indicted, but unconvicted, persons some
measure of informational privacy? The Supreme Court has
made it clear that the presumption of innocence applies only
to a criminal trial and, within the trial, only to the jury or other
trier of fact. See Bell v. Wolfish, 441 U.S. 520, 533 (1979)
(“The presumption of innocence is a doctrine that allocates
the burden of proof in criminal trials; it also may serve as an
admonishment to the jury to judge an accused’s guilt or
innocence solely on the evidence adduced at trial . . . .”
(emphasis added)). Any other, extra-trial reference to the
doctrine is both imprecise and impotent. If, as the Supreme
Court posits, the presumption of innocence is purely an
instrument for allocating the burden of proof at trial and
warning jurors against drawing untoward inferences, then
there is no basis for supposing the presumption of innocence
governs events beyond the trial itself. Contra Majority Op. at
10 (“Individuals who are charged with a crime and ultimately
prevail of course remain entitled to a version of this
presumption [of innocence].”). And why would a common
law presumption trump FOIA’s statutory mandate?
3
The court hypothesizes the plight of individuals who,
though never convicted, are viewed with suspicion when
others learn of their mere involvement in particularly ignoble
cases. See Majority Op. at 13. But even if true, persons who
are publicly indicted and tried can have no reasonable
expectation that the occurrence of these events will not be
publicly disclosed. Risk of disclosure inheres in the very
nature of these public proceedings. See Craig v. Harney, 331
U.S. 367, 374 (1947) (“A trial is a public event. What
transpires in the court room is public property.”). To be sure,
we previously discounted the small but nonetheless real risk
of renewed attention, dismissing such concerns as sheer
“speculation.” See ACLU I, 655 F.3d at 10–11 (“Such a list
[of publicly indicted persons] is surely less likely to draw
attention to a name than was the initial press coverage of an
indictment . . . .”).
Furthermore, what of the need for an informed citizenry
to hold public officials accountable? One “purpose of FOIA
is to permit the public to decide for itself whether government
action is proper.” Wash. Post Co. v. U.S. Dep’t of Health &
Human Servs., 690 F.2d 252, 264 (D.C. Cir. 1984) (emphasis
added); see also Richard A. Epstein, Privacy, Publication,
and the First Amendment: The Dangers of First Amendment
Exceptionalism, 52 STAN. L. REV. 1003, 1004, 1047 (2000)
(discussing as a counterweight to privacy goals, the social
ideal of full disclosure of information about others to allow
individuals to make “full and informed decisions on matters
of great importance”); Sadiq Reza, Privacy and the Criminal
Arrestee or Suspect: In Search of a Right, in Need of a Rule,
64 MD. L. REV. 755, 807 (2005) (“The government should
arguably inform the public about its suspicions regarding an
arrestee or suspect so that people may practice ‘informed
living,’ the right to exercise an informed choice about those
with whom they live and associate. That is, X should have
4
access to information that Y has been arrested for or
suspected of a crime so that X can decide intelligently
whether to socialize with Y, let her children play with Y’s
children, patronize Y’s business, or use Y’s professional
services, and so forth.”). From the point of view of the
wrongfully accused, this will be a continuing injustice, but a
person can be found not guilty and still not be innocent of the
crime charged. See Rigsbee v. United States, 204 F.2d 70,
72–73 (D.C. Cir. 1953) (holding that an acquittal differs from
innocence and that the former would be insufficient by itself
to obtain a certificate signifying the latter). The rough
balance courts must strike can never resolve such anomalies.
The Court’s reliance on common law informational
privacy doctrine is similarly unavailing. “[B]oth the common
law and the literal understandings of privacy encompass the
individual’s control of [personal] information.” Reporters
Comm., 489 U.S. at 763. The touchstone of informational
privacy—the right to be let alone—has long rested on the
degree to which an allegedly private fact has been
disseminated, and the extent to which the passage of time has
rendered it private. Id. Nevertheless, technological advances
seem to presage the death knell for this previously workable
standard. In today’s echo chamber of big data, metadata, and
the Internet, the once wholly forgotten memory of some
unsavory, minimally broadcast misdeed is resurrected for
global consumption. Against this backdrop, it seems fanciful
to believe that individuals who were publicly indicted but
never convicted (though in some cases publicly tried), retain
an objective, substantial privacy interest in controlling
information about these public facts.
The court says unconvicted persons are “entitled to move
on with their lives without having the public reminded of their
alleged but never proven transgressions.” Majority Op. at 11.
5
Alas, Google, unlike God, neither forgets nor forgives.1
Indeed, Google is not alone in its uncanny ability to keep the
proverbial score. It is true that most jurisdictions treat
aggregations of data confidentially, but they also insist on
transparency for records of individual cases. Courts, too,
have a penchant for reminding acquitted individuals of their
“alleged but never proven transgressions.” See, e.g., Dowling
v. United States, 493 U.S. 342, 354 (1990) (holding that
admission of evidence relating to a crime the defendant had
previously been acquitted of committing did not violate
double jeopardy or due process); United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 356–66 (1984)
(holding that a gun owner’s acquittal on criminal charges
involving firearms did not preclude a subsequent in rem
forfeiture proceeding against those firearms under 18 U.S.C §
924(d)); United States v. Foster, 19 F.3d 1452, 1455 (D.C.
Cir. 1994) (noting that virtually every circuit permits
enhancement of sentence based on acquitted conduct).
The proposition that “an ‘ordinary citizen’ has a privacy
interest ‘in the aspects of his or her criminal history that may
have been wholly forgotten,’” Majority Op. at 13 (citing
Reporters Committee, 489 U.S. at 769), is thus inapt. Thanks
to the Internet (for better or worse), information that was once
scattered, localized, and forgotten with the passage of time is
now effectively permanent and searchable. And though one
might wish quietly to melt into the shadow of obscurity, the
inexorable march of time is simply no match for the
unflagging, unforgiving memory that is the World Wide Web.
1
There are exceptions, of course, but records
memorializing a public indictment and trial do not appear to
be one of them. See Removal Policies, GOOGLE,
https://support.google.com/websearch/answer/2744324#offen
siveimages (last visited Apr. 23, 2014).
6
Once a secret is disclosed online, neither the courts nor
society may unring the lingering echo of the bell. In this
respect, Reporters Committee is an anachronism. The aspects
of an “ordinary citizen[’s]” criminal history the Court thought
would be wholly forgotten were the data contained in rap
sheets, which were maintained in a localized computer
database. See Reporters Comm., 489 U.S. at 752, 771; see
also ACLU I, 655 F.3d at 8. Nowadays, bits and pieces of
data are aggregated and immortalized on public and private
systems, and the private systems have no purge schedules.
This is not to say the modern man has abdicated any
expectation of privacy in facts partially disclosed. As the
Supreme Court observed, “the fact that an event is not wholly
private does not mean that an individual has no interest in
limiting disclosure or dissemination of the information.”
Reporters Comm., 489 U.S. at 770. But there is a vast chasm
between facts disclosed to a discrete group that otherwise
treats the information as private and facts that are
unqualifiedly revealed and accessible to virtually everyone.
In my view, the case before us falls into the latter camp. Cf.
id. at 752 (“As a matter of executive policy, [DOJ] has
generally treated rap sheets as confidential and, with certain
exceptions, has restricted their use to governmental
purposes.”); Dep’t of Air Force v. Rose, 425 U.S. 352, 359–60
(noting that the Academy treated “all matters discussed” at
hearings for honor code violations as “confidential,” marked
case summaries “for official use only,” and instructed cadets
“not to read the case summary unless they have a need,
beyond mere curiosity, to know their contents”).
Considering the fissures in the two pillars supporting the
court’s privacy analysis, one would expect the privacy
interests to become less significant. At the very least, these
serious deficits ought give way to the court’s obligation to
7
“make a reasonable effort to account for the death of a person
on whose behalf the [agency] invokes Exemption 7(C).
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C.
Cir. 2003). This would include the deaths of family members.
After all, “death clearly matters, as the deceased by definition
cannot personally suffer the privacy-related injuries that may
plague the living.” Campbell v. U.S. Dep’t of Justice, 164
F.3d 20, 33 (D.C. Cir. 1998). I am not swayed by the
majority’s contention that reputational interests are enough to
carry the day. The posthumous reputational interest the
Supreme Court recognized in Swidler & Berlin v. United
States, 524 U.S. 399 (1998), is the one rooted in the venerable
attorney-client privilege, not informational privacy. See id.
(holding that the attorney-client privilege survives a client’s
death).
One last point warrants discussion. Judge Tatel’s
concurrence seeks to lend credence to DOJ’s invocation of the
incremental value test—a test allegedly of precedential value.
I am not so certain. First, the test is of dubious provenance.
In King v. U.S. Dep’t of Justice, 830 F.2d 210, 234 (D.C. Cir.
1987), the case cited by Schrecker as authority for its
statement about the incremental value test, the court never
actually used the words “incremental value.” Instead, the
court merely held that, because the appellant failed to
demonstrate how disclosing the redacted names was relevant
to the public interest, the privacy interests “outweighed any
public interest attending disclosure.” See id. at 234–35. That
is all. King did not hold that the incremental value of
information depends on the mix of data already publicly
available.
In the 200-plus FOIA cases since the Schrecker decision,
we have referenced the incremental value test only three
times. In each instance, we have understood it to mean
8
exactly the opposite of what the concurrence posits: “even if
the ‘absolute value’ of the requested information is small, it
must nevertheless be released if it adds any incremental value
of public interest.” Appellants’ Reply Br. at 15; see ACLU I,
655 F.3d at 15 (rejecting DOJ’s “incremental contribution”
argument because “[t]he fact that the public already has some
information does not mean that more will not advance the
public interest” (emphasis added)); Lardner v. U.S. Dep’t of
Justice, 398 F. App’x 609, 611 (D.C. Cir. 2010) (affirming
the district court’s decision to disclose the identities of denied
pardon and commutation applicants despite the previous
disclosure and existence of approved applicants’ identities on
the public record. Significantly, the court noted: “The
incremental value of the withheld information is not
speculative . . . .”); Consumers’ Checkbook Ctr. for the Study
of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d
1046, 1060 (D.C. Cir. 2009) (Rogers, J., concurring in part
and dissenting in part) (“[E]ven though the requested data will
only partially reveal physicians’ experience levels, the data
has ‘incremental value’ for ascertaining the quality of services
performed.”).
In any event, even assuming the court is bound by the
version of the incremental value test Judge Tatel espouses, the
cases cited in support of this test are all distinguishable for
one reason or another. In Ray, for example, the privacy
interests were more significant than those implicated here.
The information redacted from the disputed records was
obtained via interviews with requested Haitians who were
promised confidentiality. U.S. Dep’t of State v. Ray, 502 U.S.
164, 172 (1991). In other words, the parties agreed to treat
the information obtained as private. Furthermore, the Court’s
conclusion that “[t]he addition of the redacted identifying
information would not shed any additional light on the
Government’s conduct of its obligation,” id. at 178 (emphasis
9
added), is in accord with this court’s prior application of the
test. The redacted information was withheld precisely
because the Court recognized that, “in and of itself” it would
not “tell respondents anything about Haiti’s treatment of the
returnees or this Government’s honesty.” Id. at 170–71
(emphasis added).
Perhaps most importantly, however, Ray involved
redacted information, not wholly undisclosed records. The
difference is not merely academic. Judge Tatel’s version of
the incremental value test would make little sense where, as
here, a court is dealing with undisclosed records that are
substantively dissimilar to records previously disclosed.
Unlike Ray, where the redacted information was sought so
that interviews with Haitians could be conducted anew, 502
U.S. at 178–79, disclosing the records of unconvicted persons
would be neither duplicative nor speculative. It is reasonable
to believe the six files could contain new information
precisely because the records sought—unlike the Haitian
interviewees—are qualitatively different. In fact, Judge Tatel
agrees. Concurring Op. at 4 (“The disclosure of these six
cases could also shed at least some additional light on the
scope and effectiveness of [warrantless cell phone
tracking].”). Nothing more is required.
At bottom, the public interest in disclosure remains as
robust as it was in ACLU I. Conversely, in the Internet age,
privacy is no longer what it once was. Times have changed,
and so, too, must our expectations. I respectfully dissent.