The Reporters Committee for Freedom of the Press v. United States Department of Justice (Two Cases)

STARR, Circuit Judge,

concurring in the judgment and concurring in part:

I concur in the judgment to remand to the District Court for its reassessment of the privacy interest-public interest balance. I also concur in all of the court’s opinion save for section II B. For the reasons that follow, I believe the public-interest analysis contained in that section is flawed.1 Specifically, I find the majority’s approach to collapse improperly a Congressionally-mandated balancing process into a single-factor test; in the process of this curious metamorphosis, the majority has, with all respect, ignored a number of factors that should figure into a proper assessment of the public interest.

The dominant objective of FOIA is, of course, disclosure, as the court rightly recognizes. See Opinion at 734. But Congress has also determined that under certain circumstances the public’s right of access should yield to legitimate privacy interests. Exemption 7(C) sets forth one such circumstance. As recently amended by the Freedom of Information Reform Act of 1986, Exemption 7(C) shields from disclosure

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.

5 U.S.C. § 552(b)(7)(C) (codification of Pub.L. No. 99-570, § 1802 (Oct. 27, 1986)). There can be no doubt that on its face the FOIA request here seeks “law enforcement records or information.” See J.A. at 14 (original FOIA request).

Unlike many of the other FOIA Exemptions, literal compliance with the terms of Exemption 7(C) — that is, a finding that the requested information was “compiled for law enforcement purposes” — leads not to automatic withholding but rather triggers a balancing process. See Lesar v. Department of Justice, 636 F.2d 472, 486 n. 80 (D.C.Cir.1980); cf. 2 J. O’Reilly, Federal Information Disclosure § 16.07, at 16-19 (1985) (discussing this aspect of analogous Exemption 6). This balancing process is suggested by the language of Exemption 7(C); the choice of the term “unwarranted,” which connotes balancing, indicates that Congress impliedly directed such an approach. This assumption is confirmed by the legislative history. As the Supreme Court has noted, “[bjoth [the] House and Senate Reports can only be read as disclosing a congressional purpose ... to require a balancing of interests.” Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 *744S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976).2 Moreover, this balancing is to be conducted by the courts de novo. 5 U.S.C. § 552(a)(4)(B); see Lesar, 636 F.2d at 486; cf. Rose, 425 U.S. at 379, 96 S.Ct. at 1607 (Exemption 6).

Thus, it is hardly surprising that a balancing requirement is firmly embedded in the law of this circuit. In Baez v. Department of Justice, 647 F.2d 1328 (D.C.Cir.1980), for example, we held that to assess properly an Exemption 7(C) claim — that is, to determine whether disclosure would lead to “an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C) — we “must balance the privacy interest involved against the public interest in disclosure.” 647 F.2d at 1338. The Baez court, speaking through Judge Wilkey, then proceeded to strike the balance in favor of privacy interests, discerning in that case “no identifiable public interest in the[] materials.” Id. at 1338-39. But the court reached this conclusion only after examining “the other side of the balance,” namely the public interest in disclosure. Id. at 1338; see also Common Cause v. National Archives and Records Service, 628 F.2d 179, 182 (D.C.Cir.1980); Lesar, 636 F.2d at 486.

The court acknowledges and purports to follow this balancing requirement, even citing some of these same cases. See maj. op. at 737. In reality, however, the majority collapses the entire balancing process into a single determination, namely whether a federal or state political body determined at some time that the requested information should be “public.” See maj. op. at 740-41. I recognize this determination properly impacts both sides of the Exemption 7(C) balance, and I agree fully with the manner in which the court has incorporated this factor into its privacy-interest analysis. See maj. op. at 738-40. But the majority has fallen into error by making this identical determination the sole feature of its public-interest inquiry. I respectfully disagree with that approach.

The majority reveals at the outset what animates its search for an easy-to-apply, single-factor test, namely, “the awkwardness of the federal judiciary appraising the public interest in the release of government records.” Maj. op. at 740. This concern sends the majority on a quest for someone to defer to, maj. op. at 738-39; and leads directly to the development of a deference-based public-interest analysis — that is, if the requested material is “information that local, state and federal political bodies decided to make public,” id. at 740, then a significant public interest in the material exists.

While I share the majority’s concern that the judiciary is ill-equipped to make value-laden judgment calls such as assessing the extent of the “public interest,” I am nonetheless persuaded that Congress has, in essence, put us in the business of doing just that. It is, after all, Congress that has directed the courts to engage in de novo balancing. See 5 U.S.C. § 552(a)(4)(B). Indeed, the majority concedes as much by noting after its reference to the awkwardness of the judiciary’s role that “Congress decided that the judiciary must review the propriety of withholding de novo.” Maj. op. at 740.

Thus, our duty is clear. Yet, the majority decides to go AWOL, as it were, by failing entirely to heed Congress’ directive. Instead of de novo balancing, the court’s “analysis” is reduced to deferential rubber-stamping. I have no doubt that the determinations of federal or state political bodies as to the “public” nature of information should play a role, perhaps even a large role, in a proper public-interest analysis. But I am unable to conclude, as my colleagues do, that this single factor should constitute the whole of the analysis. The generalized policy determination that a cat*745egory of materials warrants disclosure does not mean that a “public interest” within the meaning of FOIA attaches to every scrap of paper falling within that category.

In the process of championing a transformation of a two-sided balancing process into a single-factor test, the court rejects consideration of several factors that should figure in a determination of the “general public interest. See maj. op. at 742 (noting that the District Court should determine “the interest of the general public in release of the records themselves”). In the circumstances of this case, for example, it seems powerfully relevant that the offenses reflected on the requested records are minor and occurred a long time ago. A traffic ticket, let us say, scarcely partakes of the nature of an arrest, hypothetically, for murder.

So too, the specific purpose of the request should be relevant. In the context of this case, the fact that the records are sought by representatives of the media for the avowed purpose of exposing the possible misuse of government funds — rather than by some idiosyncratic individual seeking to satisfy a mere curiosity about criminal records — should be a factor in the public-interest determination. As the court candidly notes, this is exactly the approach this circuit followed in Getman v. NLRB, 450 F.2d 670, 675 (D.C.Cir.1971), and other cases. See Opinion at 742 (citing Getman and Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974)); see also Fund for Constitutional Government v. National Archives, 656 F.2d 856, 866 (D.C.Cir.1981) (examining purpose for request, finding a “general public curiosity” to be insufficient).

The court, however, declines to follow these precedents, explaining its refusal by pointing to FBI v. Abramson, 456 U.S. 615, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982): “[T]he Supreme Court in FBI v. Abramson rejected the Getman approach.” Opinion at 742. With all respect, I can discern no such rejection in my reading of Abramson.

The majority’s analysis of Abramson is grounded upon that opinion’s statement that “Congress did not differentiate between the purposes for which information was requested.” 456 U.S. at 631, 102 S.Ct. at 2064. While on its face, this statement indeed appears to reject Getman's approach, the context of the statement makes clear that the Court’s point was quite different.3 Specifically, the Abramson Court was rejecting a claim that “Congress’ undeniable concern with possible misuse of governmental information for partisan political activity is the equivalent of a mandate to release any information which might document such activity.” Id. As the Court made even more clear later in the solitary paragraph of relevance to our discussion, the contention it faced in Abramson was that despite the concession that an unwarranted invasion of privacy would result from disclosure, see id. at 623, 102 S.Ct. at 2060, Exemption 7 should not apply due to the purpose of the request. The Court disagreed, concluding as follows:

[T]he Act require[s] assessment of the harm produced by disclosure of certain types of information. Once it is established that information was compiled pursuant to a legitimate law enforcement *746investigation and that disclosure of such information would lead to one of the listed harms, the information is exempt. Congress thus created a scheme of categorical exclusion; it did not invite judicial weighing of the benefits and evils of disclosure on a case-by-ease basis.

Id. at 631, 102 S.Ct. at 2064 (footnote omitted). Obviously, the Court was considering a later phase of the inquiry under Exemption 7, after the “harms” determination (resulting from the balancing process) had been made. See 456 U.S. at 623, 102 S.Ct. at 2060 (reporting that all parties agreed that “the disclosure of such information would be an unwarranted invasion of privacy”). At that stage — i.e., after the “harms” portion of the Exemption 7 analysis has been completed — the purpose of the FOIA requester is no longer legally relevant; for if one of the enumerated harms is present, then the exemption from mandatory disclosure is established. At that late stage, in short, there is to be no further judicial weighing of competing interests.

But the Abramson Court was by no means purporting to ban “judicial weighing” to determine whether one of the listed harms is present in the first instance. One of the “listed harms” to which the Court alluded is, of course, “an unwarranted invasion of privacy.” See 5 U.S.C. § 552(b)(7)(C). As we have seen, to assess this “harm,” Congress has mandated that the courts engage in de novo balancing. Thus, Abramson’s general statement has no bearing on what factors may be relevant to the “unwarranted invasion” determination and the public-interest assessment subsumed under that determination. Accordingly, the purpose of the request, in my view, should figure into a proper Exemption 7(C) balancing.

In sum, the majority’s public-interest analysis is but a rehashing of its privacy analysis; the two determinations, required by Congress to comprise opposite sides of a de novo balancing process, have been collapsed into a single factor. Consistent with Congress’ balancing requirement, this circuit has until today engaged in a fairly detailed assessment of the public interest, carefully calibrating the level of that interest depending on factors such as the precise information sought, see, e.g., Stern v. FBI, 737 F.2d 84, 93-94 (D.C.Cir.1984) (differentiating between level of public interest due to relative rank of FBI officials), and the purpose of the request, see, e.g., Fund for Constitutional Government, 656 F.2d at 866 (“general public curiosity” insufficient). Viewed against the backdrop of these circuit precedents, not to mention Congress’ de novo balancing requirement, the court’s deferential, hands-off approach is difficult to justify in law. Because I believe the federal courts are duty-bound, for better of worse, to perform the task Congress has assigned us, I cannot join in section II B of the court’s opinion.

. Were we writing on a blank slate, I would also conclude that, by virtue of the care and rigor with which Attorney General Bell and other high ranking officials of the Department analyzed section 534, Chevron -style deference would be appropriate so as to trigger Exemption 3. Indeed, the principle of judicial deference to reasonable administrative interpretations of ambiguous statutes is particularly forceful where, as here, that interpretation has been rendered by the head of the Executive Branch Department charged with the statute’s application after a careful and painstaking deliberative process. Cf. Church of Scientology v. IRS, 792 F.2d 153, 164 (D.C.Cir.1986) (Silberman, J., concurring), cert. granted, — U.S. -, 107 S.Ct. 947, 93 L.Ed.2d 996 (1987). But at this point, too much water is over the dam in the way of FOIA caselaw to examine what should be an interplay between the clear strictures of Chevron and the exacting demands of FOIA decisional law.

. Rose was, of course, an Exemption 6 case. Nonetheless, its teaching in this respect applies fully to the Exemption 7 setting. As Judge Wilkey aply put it in speaking for the court in Lesar v. Department of Justice, 636 F.2d 472, 486 n. 80 (D.C.Cir.1980), an Exemption 7(C) case, "Exemption 7(C) and Exemption 6 run contrary to the theory of other exemptions. Here the court is called upon to balance tne conflicting interests and values involved; in other exemptions Congress has struck the balance and the duty of the court is limited to finding whether the material is within the confined category.” See also maj. op. at 738 n. 11, 742 n. 17.

. Abramson involved a FOIA request for documents sent by the FBI to the White House in 1969. The documents were prepared at White House request, rather than compiled for law enforcement purposes, but it was undisputed that the information reported in the documents "was originally compiled for law enforcement purposes.” 456 U.S. at 623, 102 S.Ct. at 2060. It was similarly undisputed that "disclosure of [the] information would be an unwarranted invasion of privacy.” Id. Thus, the only question facing the Court was whether material admittedly properly within Exemption 7(C) lost its exempt status when it was incorporated into a document that did not meet the Exemption 7 threshold requirement, namely, that it was not compiled for law enforcement purposes. The Abramson Court itself seemed to recognize it was facing a narrow issue: “The sole question for decision is whether information originally compiled for law enforcement purposes loses its Exemption 7 protection if summarized in a new document not created for law enforcement purposes." Id. Moreover, the language relied upon by the majority is contained in a single paragraph in a section devoted to disposing of “several other arguments,” id. at 629, 102 S.Ct. at 2063, after the basic legal issue in the case had been discussed. See id. at 623-29, 102 S.Ct. at 2060-63.