dissenting:
I respectfully dissent from denial of the petition for rehearing. After reflecting on the filings, I have come to the conclusion that the panel’s opinion is wrong; worse still, it will likely lead to unfortunate consequences, misconstruing as it does FOIA Exemption 7(C) and, by analogy, Exemption 6 as well.
The panel opinion speaks for itself, and its rationale therefore need not be reviewed in detail. Suffice it to say that the panel majority, finding the balancing process ordained by Congress to be too “awkward,” embarked on a quest for someone to defer to in making determinations under Exemption 7(C).1 Discerning in this case a determination by political bodies that the criminal-record information sought here was to be “public,” the panel accordingly found any privacy interest eviscerated; at the same time, it found a significant public interest in disclosure by virtue of these same political determinations. As my concurring opinion in the case sought to point out, this approach reflected no de novo balancing at all;2 it was, rather, a single-factor test.
I nonetheless concurred in the judgment and indicated my general agreement with the majority’s privacy-interest analysis, limiting my criticisms to its public-interest analysis. On the latter score, I wholeheartedly disagreed with my colleagues. See Reporters Committee, 816 F.2d at 743 (concurring opinion). Now, the filings on rehearing, including a helpful amicus brief surveying state legislation regarding the confidentiality of criminal histories,3 have led me to conclude that the majority’s entire analysis in section II, 816 F.2d at 737-43, is flawed.
First. In its original presentation to the panel, the Government argued that while the underlying information was indeed “public” in the sense that it was on record at local courthouses or police stations, the particular items sought by appellants are of a different character by virtue of their cumulative, indexed, computerized nature. The panel opinion rejected this argument, see Reporters Committee, 816 F.2d at 739, concluding instead that the public availability at the “original source” was the only relevant fact. See id. at 743. After reviewing the rehearing petition, I am now of the view that our conclusion was wrong.
As I see it, computerized data banks of the sort involved here present issues considerably more difficult than, and certainly very different from, a case involving the source records themselves. This conclusion is buttressed by what I now know to be the host of state laws requiring that cumulative, indexed criminal history information be kept confidential, as well as by general Congressional indications of concern about the privacy implications of computerized data banks. See H.R.Rep. No. 1416, 93d Cong., 2d Sess. 3, 6-9 (1974), reprinted in Legislative History of the Privacy Act of 1974, Source Book on Privacy, 296, 299-302 (1974).
Second. With respect to the majority’s public-interest analysis, I need not restate the objections already voiced in my concurrence. Suffice it to say that the majority fails to carry out its obligation to make a separate valuation of that interest under the precedents of this circuit and the Supreme Court.
The majority vigorously objects to an analysis of the public interest that depends upon the identity of the requester or the use to which the information will be put. *1129Even granting the majority’s position that calls into question a rigorous application of our court’s analysis in Getman v. NLRB, 450 F.2d 670 (D.C.Cir.1971), this still does not leave the Congressionally mandated public-interest standard devoid of meaning. This is scarcely the place to speculate about the public-interest analysis in a postGetman era, but rather than give Getman no burial, I think a few words should be said out of respect.
Getman’s critical insight is that there is meaning in the public-interest standard; the way in which meaning is imparted to that term will depend on the information that is sought and the circumstances in each case. Where what is at stake is the disclosure of personal information about a particular subject, one helpful vantage point is the public interest in the subject of the information request. Although there may be no public interest in disclosure of the FBI rap sheet of one’s otherwise inconspicuously anonymous next-door neighbor, there may be a significant public interest-one that overcomes the substantial privacy interest at stake — in the rap sheet of a public figure or an official holding high government office. For guidance in fleshing out that analysis, it seems sensible to me to draw upon the substantial body of defamation law dealing with “public personages.” See e.g., Providence Journal Co. v. F.B.I., 460 F.Supp. 778, 790-91 (D.R.I. 1978) (striking differing balances in an Exemption 7(C) case depending upon whether the information obtained through an illegal wiretap concerned the subject’s dealings with public figures), rev’d, 602 F.2d 1010 (1st Cir.1979) (holding all information obtained in this manner exempt from disclosure), cert. denied, 444 U.S. 1071,100 S.Ct. 1015, 62 L.Ed.2d 752 (1980). But however fruitful that analytical mode may (or may not) eventually prove to be in the postGetman era, the fundamental point is that the public interest in any particular case can vary beyond the “general disclosure policies of the statute,” Majority op. supra at 1126, and is to be seriously weighed against the subject’s privacy interest.4
Third. The Bureau and the District Court will have considerable difficulty in applying the majority’s single-factor test in future cases. The rehearing filings highlight two problems.
In the first place, the Government points out that the FBI will often have no way of knowing whether a particular item in a particular criminal history compilation is, in fact, “publicly available at the original source,” Reporters Committee, 816 F.2d at 743, without a specific inquiry to the source at the time of the FOIA request. To require the Bureau to undertake such inquiries is to impose a substantial (if indeed not crippling) administrative burden. The majority’s response to this unhappy, practical result of our holding is that “the Department might satisfy its obligations under FOIA ... by merely referring appellants to the law enforcement agency that provided the information to the Department.” Id. (footnote omitted). In its rehearing petition, the Government suggests that this “option” is illusory; to refer a requester in the manner suggested by the majority would only confirm that criminal history information exists, which may be the most pertinent (if not the only) “fact” that a requester is seeking. Government’s Rehearing Petition at 10 n. 9.
In the second place, the rehearing filings make it abundantly clear that an entirely different level of “political determinations,” Reporters Committee, 816 F.2d at 741, exists. That is, most state legislatures have expressly provided that cumulative, indexed criminal history information of the type sought here is to be held confidential. See, e.g., Cal.Penal Code § 11105 (West Supp.1986); Conn.Gen.Stat.Ann. §§ 54-142i(c), 54-142n (West 1985); Hawaii Rev. Stat. § 846-9 (1985); Tenn.Code Ann. §§ 40-15-106(b)-(c) (1982). The exact approach and precise degree of confidentiali*1130ty, not surprisingly, varies significantly from State to State.5 But the common theme is nonetheless one of confidentiality.
Moreover, the majority provides no guidance to the Bureau or the District Court as to the source of law for determining whether the information is “publicly available at the original source.” Often the state legislature requires both that the underlying criminal history source records be publicly available and that cumulative, indexed criminal history information be kept confidential. Compare Ohio Rev.Code Ann. § 1901.31(E) (Anderson Supp.1986) (court proceedings shall be public records) with Ohio Rev.Code Ann. § 109.57(E), (D) (Anderson 1984 & Supp.1986) (criminal history information to be held confidential). In the latter situation — which would appear to be the rule rather than the exception — I fear that the District Court will be left on remand with no criteria for determining whether the privacy interest of the subject in his rap sheet has “faded.” Majority op. supra at 1127. Instead the District Court will be left with only the majority’s original direction to look to availability at the “original source,” as well as the majority's initial rejection of the argument that cumulative, indexed, computerized information was somehow different.
Thus it is that I must confess that I was wrong the first time around. The rehearing filings have convinced me that the panel opinion’s entire Exemption 7(C) analysis is in error. Its transmogrification of de novo balancing into a deference-driven, single-factor test does violence to what had heretofore been settled law. In the process, it raises the unsettling prospect of future FOIA requests tailored precisely to fall within the dictates of Reporters Committee. We are now informed that many federal agencies collect items of information on individuals that are ostensibly matters of public record. For example, Veterans Administration and Social Security records include birth certificates, marriage licenses, and divorce decrees (which may recite findings of fault); the Department of Housing and Urban Development maintains data on millions of home mortgages that are presumably “public records” at county clerks’ offices. Government’s Rehearing Petition at 2. Under the majority’s approach, in the absence of state confidentiality laws, there would appear to be a virtual per se rule requiring all such information to be released. The federal government is thereby transformed in one fell swoop into the clearinghouse for highly personal information, releasing records on any person, to any requester, for any purpose. This Congress did not intend.
Quite apart from the potentially daunting administrative burden this will impose, I harbor the gravest concerns that this new-fangled regime will have a pernicious effect on personal privacy interests in conflict with Congress’ express will. Congress chose not to enact separate exemptions for each set of personal files kept by the federal government, but chose instead to delegate to the courts the task of making the ultimate determination with respect to disclosure on the basis of criteria that Congress set. Surely we should not eschew this task because we find it awkward. The rehearing filings have referred the court to previously unknown legal authorities, arguing strongly that the information sought here should be held confidential. We should abandon right now our unfortunate departure from traditional FOIA analysis; having repented, we should then conduct an old-fashioned Exemption 7(C) balancing.
In that process, we would be well advised to consider these state laws as one, quite powerful factor. In carrying on the traditional Exemption 7(C) analysis I would, on reflection, conclude that the privacy interest here outweighs the limited public interest in Charles Medico. On that basis, I would affirm the District Court’s judgment. As my colleagues have concluded otherwise, I respectfully dissent.
. The majority’s analysis also impacts upon Exemption 6, as noted above. See Reporters Committee, 816 F.2d at 738, n. 11, 742 n. 17.
. See 5 U.S.C. § 552(a)(4)(B) (1982) ("In such a case the court shall determine the matter de novo____”).
. The amicus brief was filed conditionally, together with a motion for leave to file, see Fed.R. App.P. 29, by SEARCH Group, Inc., the State of California Department of Justice, and the State of New York Division of Criminal Justice Services. SEARCH Group is, I gather, a non-profit corporation, governed by a Membership Group comprised of Governors’ appointees from each State. SEARCH Group deals with the collection, maintenance, and dissemination of state criminal history records. The California and New York agencies are, it appears, the entities responsible for the operation of the criminal history repository within their respective States.
. I by no means suggest that the public-figure analysis will apply, much less govern, in the entire universe of Exemptions 6 and 7(C) cases. For example, in one recent case, this court considered under the public-interest prong of the analysis the public interest in fair and honest disciplinary proceedings. Carter v. United States Department of Commerce, 830 F.2d 388, 390 n. 8 (D.C.Cir. 1987).
. This fact, of course, leaves the majority vulnerable to the charge that its new deference approach is just as "idiosyncratic," see Reporters Committee, 816 F.2d at 741, as the previous balancing analysis, which at least had the virtue of being grounded in the statutory language (and had the virtue of extensive caselaw authority).