New York Times Company v. National Aeronautics and Space Administration

HARRY T. EDWARDS, Circuit Judge,

with whom WALD, Chief Judge, MIKVA and RUTH BADER CINSBURG, Circuit Judges, and SPOTTSWOOD W. ROBINSON, Jr., Senior Circuit Judge, join, dissenting:

This is an action brought by appellee, the New York Times Company (the “Times”), against appellant, the National Aeronautics and Space Administration (“NASA” or “agency”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1988), to compel the disclosure of a voice recording of the crew of the space shuttle Challenger. The agency already has released a transcript of the tape of the astronauts’ communications during the ill-fated Challenger flight. NASA claims, however, that the tape of the voice recording is covered by “Exemption 6” of FOIA, which provides that the statute’s disclosure requirements do not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (1988).

NASA’s claim before this court is somewhat astonishing in light of its concession before the District Court that

[t]he words spoken on the withheld tape are the observations and communications of certain of the Challenger astronauts concerning the launching of the space shuttle. The withheld tape contains no information about the personal lives of the Challenger astronauts or any of their family members.

Given this concession and the other undisputed evidence before it, the District Court granted summary judgment for appellee. The trial court rejected NASA’s contention that the tape was a “similar file” under Exemption 6, and ruled that the material sought was subject to disclosure under FOIA. See New York Times Co. v. NASA, 679 F.Supp. 33, 36 (D.D.C.1987). A divided panel of this court affirmed the judgment of the trial court. See New York Times Co. v. NASA, 852 F.2d 602 (D.C.Cir.1988). NASA then filed a suggestion for en banc consideration, and the court decided to rehear the case.

A majority of the court now reverses the District Court. The majority’s opinion starts with the unremarkable, indeed indisputable, proposition that voice inflections and other “non-lexical” information can constitute personal information sufficient to satisfy Exemption 6’s “similar files” threshold. It then points out that the tape at issue in this case contains voice inflections and from there leaps to the conclusion that the tape therefore satisfies the Exemption 6 threshold. Noticeably missing from the majority’s analysis is that step in which the court should have inquired whether the “non-lexical” information on this tape actually does constitute genuinely personal information.

There is, of course, a reason for this hole in the majority’s analysis: on the record before us NASA has disavowed that the tape contains genuinely personal information. The majority recognizes that “the taped words do not contain information about the personal lives of the astronauts,” but NASA itself went even further in conceding that “[t]he withheld tape contains no information about the personal lives of the Challenger astronauts.” This concession, which must be read to encompass both the “lexical” and “non-lexical” information on the tape, renders indefensible the majority’s holding.

We would hold that, on the record in this case, Exemption 6 has no application. The District Court properly concluded that, because the voice recording was not a “similar file,” the Government had failed to satisfy the threshold test of Exemption 6. The majority now holds that if an identifia*1011ble individual is somehow connected with a Government file, that file automatically becomes a “similar file” under Exemption 6. That is not what the statute says. To be a “similar file” under Exemption 6, a file must be a “detailed Government record[] on an individual which can be identified as applying to that individual,” Department of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982), and it must contain personal information about the subject of the file. There is no such information at issue in this case, for NASA has conceded that “the withheld tape contains no information about the personal lives of the Challenger astronauts or any of their family members.” Furthermore, contrary to NASA’s arguments in this case, we believe that information that one might infer about the author or maker of a file is not the kind of information that qualifies for protection under Exemption 6.

The result reached today defies the will of Congress as expressed in the statute. We dissent because we believe that we are constrained to enforce the statute as it was written by Congress.

I. Background

The file over which this litigation ensued was created on January 28, 1986, during the flight of the Challenger space shuttle. The collection and recording of a wide variety of data concerning the operation of the shuttle prior to liftoff and during its flight was an important, albeit routine, part of the shuttle mission. In order to facilitate the data collection and recording function, the shuttle was equipped with three digital tape recorders, and the astronauts’ helmets were equipped with voice-activated microphones which fed into the tape recorders. Prior to liftoff, and during the flight, the crew members performed their information-gathering tasks by making a taped report of their observations of gauge readings, altitude, velocity, and other similar matters.1 That data-gathering tape is the “file” at issue in this case.

After a flight lasting only seventy-three seconds, the Challenger exploded, killing all of the crew members. Post-flight media coverage of the tragic accident was extensive and prolonged. On July 18, 1986, in an effort to probe the details of the accident, the Times filed a FOIA request with NASA seeking the “transcripts of all voice and data communications recorded aboard the space shuttle Challenger,” including “all conversations involving crew members through the shuttle's intercom system,” as well as “copies of the voice communications tapes, which may include the background noises or voice inflections not reflected in the transcripts.” See Letter from David E. Sanger to Shirley Green (July 18, 1986), reprinted in J.A. 9. On August 1, 1986, NASA released to the Times a transcript of the tape.2 See Letter from Lillian R. Levy to David Sanger (Aug. 1, 1986), reprinted in J.A. 10. However, relying solely on Exemption 6, the agency refused to release a copy of the tape itself, asserting that “the privacy of the families of the astronauts would be invaded significantly by its release because it would subject them to hearing the voices of their loved ones, an intrusion on their grief which certainly would exacerbate feelings of hurt and loss.” See id. The Times filed an administrative appeal of the agency’s denial of its request for “copies of the voice communications tapes,” see Letter from David E. San*1012ger to James C. Fletcher (Aug. 11, 1986), reprinted in J.A. 12-13; this appeal was also rejected by NASA on the ground that the information sought was protected from disclosure under Exemption 6. See Letter from Ann Bradley to David E. Sanger (Sept. 30, 1986), reprinted in J.A. 14-18.

The Times then sued NASA in the District Court for release of a copy of the tape. Reasoning that the tape contained no “personal information” about the astronauts or their family members, and that the tape was therefore not a “similar file” for purposes of Exemption 6, the District Judge concluded that “the tape does not satisfy the threshold requirement for protection under Exemption 6 and must, therefore, be released under the disclosure requirements of the FOIA.” New York Times Co. v. NASA, 679 F.Supp. 33, 36 (D.D.C.1987) (footnote omitted). Because it disposed of NASA’s exemption claim on this ground, the trial court found it unnecessary to consider whether release of the tape would constitute a “clearly unwarranted invasion of personal privacy” under the second step of Exemption 6 analysis. See id. at 36 n. 6.

On appeal, a panel of this court affirmed the judgment of the District Court, also concluding that the tape did not pass the “personnel, medical, or similar files” threshold test, and that, therefore, FOIA required the agency to release it. See New York Times Co. v. NASA, 852 F.2d 602 (D.C.Cir.1988). NASA filed a suggestion for en banc consideration, and this court decided to rehear the case. See 860 F.2d 1093 (D.C.Cir.1988). The majority now reverses, holding that if an identifiable individual is somehow connected with a Government file, that file automatically becomes a “similar file” under Exemption 6. Because this holding is flatly at odds with what Congress has said in Exemption 6, we dissent.

II. Analysis

A. Introduction

The Freedom of Information Act establishes that Government records are open to public disclosure, subject to nine “exclusive” and “narrowly construed” exemptions. See Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). In particular,

§ 552(a)(3) requires every agency “upon any request for records which ... reasonably describes such records” to make such records “promptly available to any person.” If an agency improperly withholds any documents, the district court has jurisdiction to order their production. Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden “on the agency to sustain its action” and directs the district courts to “determine the matter de novo.”

Department of Justice v. Reporters Committee, 489 U.S. 749, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989) (footnotes omitted). In this case, NASA relies solely on Exemption 6 in opposing the request from the Times for disclosure of the voice recording.

As noted above, Exemption 6 provides that FOIA’s disclosure requirements do not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (1988). Under this provision, the threshold question is whether the information sought is contained in a personnel, medical or similar file. If it is not, then the information is not entitled to Exemption 6 protection. If, however, the information is contained in such a file, then the court must assess whether release of the information would constitute a “clearly unwarranted invasion of personal privacy.” See Department of State v. Washington Post Co., 456 U.S. 595, 602 & n. 4, 102 S.Ct. 1957, 1962, 72 L.Ed.2d 358 (1982). In this case, the agency does not contend that the tape at issue is a “personnel” or “medical” file, so our threshold analysis is confined to the question whether the tape is a file that is “similar” to either of those types of file.

Arguing that the information-gathering tape at issue in this case is a “similar file,” NASA states that “the sound of an individual’s voice is essentially unique to that *1013person,” Brief for Appellant at 24, and that, “[a]part from the uniqueness of an individual’s voice, it may convey information independent of and in addition to the particular words spoken by the individual,” id. at 25. The agency thus contends that “the tape does contain information personal to the [Challenger crew members] — the sound and inflection of their voices.” Id. (footnote omitted).

At oral argument, the agency pressed its argument to the logical conclusion that, even when a file contains information that is otherwise fully disclosable under FOIA, a file passes the “similar file” threshold test simply because of the personal information one might infer about the author or maker of the file. In other words, NASA urges this court to accept the proposition that an information-gathering file made by a government employee in the course of his official duties passes the Exemption 6 threshold solely because someone might be able to draw inferences about the maker of the file. This proposition plainly rests on an untenable reading of FOIA.

B. The Meaning of “Similar Files” Under Exemption 6

In construing the statutory term “similar files,” we look, as did the District Court, to the Supreme Court’s landmark decision in Department of State v. Washington Post, 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). Prior to the Court’s decision in Washington Post, this circuit had interpreted the phrase “similar files” to embrace only those agency files in which the “personal quality” of the information sought is “as highly personal or as intimate in nature” as that found in personnel or medical files. See Board of Trade of the City of Chicago v. Commodity Futures Trading Comm’n, 627 F.2d 392, 398 (D.C.Cir.1980); see also Simpson v. Vance, 648 F.2d 10, 13 (D.C.Cir.1980); Washington Post Co. v. Department of State, 647 F.2d 197, 198-99 (D.C.Cir.1981), rev’d, 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). In Washington Post, the Supreme Court rejected this interpretation of “similar files,” holding that passport records of two Iranian nationals living in Iran were “similar files” for the purposes of Exemption 6. See 456 U.S. at 602-03, 102 S.Ct. at 1961-62.

The Court in Washington Post acknowledged that the language of Exemption 6 itself “sheds little light on what Congress meant by ‘similar files.’ ” Id. at 599, 102 S.Ct. at 1960. Therefore, in articulating an interpretive principle for the phrase “similar files,” the Court relied heavily on FOIA’s legislative history. “The House and Senate reports,” stated the Court, “suggest that Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Id. On the basis of this and other parts of FOIA’s legislative history, as well as Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Court concluded that Congress did not intend to

limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information. Rather, “[t]he exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual....” When disclosure of information which applies to a particular individual is sought from Government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person’s privacy.

456 U.S. at 602, 102 S.Ct. at 1961-62 (citations and footnotes omitted). In reaching this conclusion, however, the Court emphasized that it did not intend to

render meaningless the threshold requirement that information be contained in personnel, medical, and similar files by reducing it to a test which fails to screen out any information that will not be screened out by the balancing of private against public interests. As petitioners point out, there are undoubtedly many Government files which contain information not personal to any particular individual, the disclosure of which would nonetheless cause embarrassment to cer*1014tain persons. Information unrelated to any particular person presumably would not satisfy the threshold test.

Id. at 602 n. 4, 102 S.Ct. at 1962 n. 4.

Thus, the Court’s interpretive principle for “similar files” emerges from several passages in the Washington Post opinion: a record is a similar file when it is a “record on an individual which can be identified as applying to that individual,” see id. at 602, 102 S.Ct. at 1961, or when it contains information whose disclosure “applies to” or is “personal to” or “relates to” a “particular individual,” see id. at 602 & n. 4, 102 S.Ct. at 1962 & n. 4.

In pressing its opposition to disclosure of the voice recording at issue in this case, NASA relies heavily on its view that, under Washington Post, “any government file which contains information applying to individuals is a ‘similar file.’ ” Reply Brief for Appellant at 6 (emphasis in original); see also Brief for Appellant at 22; Substituted Supplemental Brief for Appellant at 8. Thus, the agency argues that the information from voice inflections that one might infer about the astronauts who created the disputed information-gathering file is “personal” to them, and so passes the Exemption 6 “similar files” threshold test. This argument, however, which also lies at the core of the majority’s analysis, misapprehends the Court’s Exemption 6 test, in that NASA’s reading is insufficiently attentive to which individual it is whose “personal information” Exemption 6 seeks to protect.3

Every Government file that might become the subject of a FOIA request has two analytically distinct attributes. One is that it is made or authored by some person or group of persons. Another is that it has a subject, which may or may not be a person. Examples of authors of files might include an auditor who prepares an institution’s financial report, a supervisor who grades an employee’s job performance, or a doctor who writes a medical report on a person. For each example of an author of a file there is a corresponding example of the subject of the file: the institution about which the financial report was written, and the employee about whom information is gathered in the evaluation or medical file. Of course, it is possible for the author and the subject of a given file to be the same, but they are always analytically distinct for purposes of applying Exemption 6.4

*1015The language and legislative history of Exemption 6 make clear, as do Washington Post and its progeny, that the “personal information” that Exemption 6’s “similar files” test protects cannot be information about the author or maker of the file unless she or he is also the subject of the file. To read Exemption 6, as the majority does, to protect “personal information” about the author or maker of a file who is not also the subject “render[s] meaningless” the “similar files” threshold test, for every file created by a person yields some personal information about its author or maker. For example, a typewritten report or letter reveals a good deal of personal information about its author, including information about the depth and breadth of his or her education (as reflected in such elements as word choice, syntactic felicity, mastery of subject matter), editorial care, argumentative facility, organizational skill, and so on.5

Linguists, literary theorists, philosophers, legal theorists, and other scholars have devoted substantial attention to the study of the kinds of information that writing or speaking reveals about an author apart from the explicit message in the writing or speech. See, e.g., R. Lanham, Style: An Anti-Textbook 21-32 (1974) (discussing examples of writing by students, faculty members, and administrators); R. Posner, Law and Literature: A Misunderstood Relation 283-84 (1988) (discussing examples of writing by judges).6 Some scholars, following Aristotle and other ancient writers, refer to this information as the “character” {“ethos ”) of the author. See C. Perelman & L. OlbreChts-TyteCA, The New Rhetoric: A Treatise on Argumentation § 72 at 319 (1969) (“[A] speech determines the opinion one will form of the [speaker]. What the ancients used to call oratorical ethos can be summed up as the impression which the speaker, by means of his words, gives of himself.”); R. Lanham, supra at 24-25; R. Posner, supra at 276; W. Devries, Ethopo-iia: A Rhetorical Study of the Types of Character in the Orations of Lysias (1892) (discussing how such elements of speeches before ancient Athenian courts as word selection and syntax gave audience impression that speaker was “humble or inexperienced speaker,” or revealed other aspects of his character). Everyday life provides countless examples in which readers and hearers infer this kind of character information — “personal” information— about authors (both writers and speakers). See, e.g., R. Mitchell, Less Than Words Can Say 61-62 (1979) (quoting letter to newspaper and discussing inferences one is likely to draw from it about its author). Indeed, a judge learns to discern character information from a brief or oral argument even when the advocate is hitherto unknown to him or her.

In accepting NASA’s argument that information one can infer about the author or maker of a file who is not also the subject of that file is “personal” information sufficient to pass the threshold of Exemption 6, *1016the majority effectively holds that no file would not be a “similar file,” because every file made by persons can yield such information. This reading, for all intents and purposes, “render[s] meaningless” the “similar files” threshold test clearly expressed in the statute, a result which the Supreme Court has expressly rejected. See Washington Post, 456 U.S. at 602 n. 4, 102 S.Ct. at 1962 n. 4.7

The legislative design of Exemption 6 also makes clear that the personal information intended to be protected is only information about the subject of the file. We know of no case — and NASA cites none — in which a “similar file” under Exemption 6 has been construed to cover personal information pertaining to the author or maker of the file.8 This is hardly surprising, because personal information in “personnel” and “medical” files under Exemption 6 always has been construed to mean the subject, not the author, of the file. When personnel files have been at issue, the information at issue is always about the employee with respect to whom information has been written or collected, and not about the author or maker of the file. See, e.g., National Ass’n of Retired Federal Employees v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989) (applying Exemption 6 to request for information about federal employees listed in annuity rolls), cert, denied sub nom. National Ass’n of Retired Federal Employees v. Newman, _ U.S. _, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990). Likewise, when a medical file is at issue, it has never been the doctor or nurse who wrote the reports constituting that file whose privacy is potentially protected, but always the subject of the medical examination. See, e.g., Badhwar v. Department of the Air Force, 829 F.2d 182, 185-86 (D.C.Cir.1987) (considering Exemption 6 claim for withholding of autopsy report); cf. Arieff v. Department of the Navy, 712 F.2d 1462 (D.C.Cir.1983) (applying Exemption 6 to request for medical information). In Washington Post the Court made clear that the terms “personnel” and “medical” were to be used as “benchmarks for measuring the term ‘similar files.’ ” See 456 U.S. at 600, 102 S.Ct. at 1961. Adhering to that useful principle of construction, we note that one apparently universally presupposed characteristic of these two statutory benchmarks — “personnel” and “medical” — is that they apply only to subjects, and not to authors, of files.

In short, under Washington Post, in order to be a “similar file,” a file must con*1017tain personal information about the subject (not just the author or maker) of that file. This reading of Exemption 6 is faithful to the language of the statute, its design, its intent as revealed in its legislative history — including the powerful broad norm of disclosure that, as the Supreme Court and this court have often noted, animates the whole of FOIA, including its exemptions9 — and to the Supreme Court’s analysis in Washington Post.

C. Application of Exemption 6 to the Facts of this Case

The file at issue in this ease is an audio tape made by the Challenger crew members as part of their routine, official information-gathering duties. Pursuant to these duties, the crew members collected and recorded information about the technical operation of the shuttle, as revealed, to a large extent, by gauges and other instruments. See Challenger Transcript, reprinted in J.A. 39-43.

It is probably precisely the routine and businesslike subject matter of this file that led NASA to release a transcript of the tape without hesitation after the Times’ initial FOIA request. Indeed, the routine, non-personal nature of the information probably explains NASA’s concession before the District Court that

[t]he words spoken on the withheld tape are the observations and communications of certain of the Challenger astronauts concerning the launching of the space shuttle. The withheld tape contains no information about the personal lives of the Challenger astronauts or any of their family members.

See Defendant’s Statement of Genuine Issues, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987) (Civ. No. 86-2860), reprinted in J.A. 100 (citing Plaintiff’s Motion for Summary Judgment, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987) ¶ 6, reprinted in J.A. 26-27 (emphasis added)). The majority objects to the characterization of this statement as a “concession” by NASA, but it is absolutely clear that we must accept the substance of this statement as established fact. See U.S.Dist.Ct.LoC.R. 108(h) (“In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”). The majority is unjustified, therefore, in suggesting that this “concession” is somehow not properly attributed to NASA.

The file at issue in this ease is, as it were, an audio snapshot — not of the astronauts, but of the interior of the cockpit as witnessed by technically trained observers. Certainly a schooled eye might infer from this “snapshot” some “character” information about the skill and training — perhaps even the stylistic judgment or preferences — of the person making it; nevertheless, its subject, for Exemption 6 purposes, would be the operation of the shuttle, not the cameraperson him or herself.

*1018The only information that NASA seeks to withhold is “character” information about the makers of the file, namely, the astronauts. For reasons offered above, to allow such information to constitute the type of “personal information” Congress designed Exemption 6 to protect is to render meaningless the threshold test of “similar files.” This result does violence to the language and legislative history of Exemption 6, a result that the Supreme Court has consistently rejected.

It is telling that the majority, in order to make the point that voice inflections can convey personal information, must resort to a case not before us, the 1967 fire aboard the Apollo 1 spacecraft, in which voice inflections certainly revealed genuinely, even profoundly, personal information. That, of course, is a very different case, one in which the tragic course of events — a fire occurring over several minutes — transformed the astronauts into the tape’s subjects as well as its authors. Here, however, as NASA has conceded, the very suddenness of the tragedy precluded the Challenger tape from assuming that character. Thus, on the record before us, we cannot subscribe to the majority’s holding that the tape the Times seeks is a “similar file” within the meaning of Exemption 6.

III. CONCLUSION

At bottom, the majority reads Exemption 6 as a general exemption for any information whose privacy value outweighs its public value. Perhaps such a view reflects a better public policy, but it is not the view that Congress embraced in enacting Exemption 6.10 The majority claims to give some meaning to the threshold test of Exemption 6, but none is forthcoming. The majority looks solely to the effect of the release of information, thus looking past the “similar files” threshold. The result is that the majority adopts precisely the sort of approach disavowed by the Supreme Court in Washington Post — “rendering] meaningless the threshold requirement ... by reducing it to a test which fails to screen out any information that will not be screened out by the balancing of private against public interests.” 456 U.S. at 602 n. 4, 102 S.Ct. at 1962 n. 4.

The majority essentially discards from Exemption 6 as surplusage the words “personnel and medical files and similar.” This is a perplexing result, especially given that this court has no legislative authority to modify a congressional enactment. We understand the Supreme Court to have circumscribed the meaning of those qualifying (threshold test) words, but we do not read Washington Post effectively to have deleted the six words from the statute altogether. Unless and until the Supreme Court tells us the words Congress employed signify nothing, we must give them content. Therefore, we dissent.

. See Transcript of The Challenger Crew Comments From the Operational Recorder, Exhibit C to Affidavit of David E. Sanger, Plaintiff's Motion for Summary Judgment, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987) (Civ. No. 86-2860) ("Challenger Transcript"), reprinted in Joint Appendix ("J.A.”) 39-43.

. Among the Challenger’s three digital tape recorders, the "OPS 2” system was the one that recorded the voices of the crew members. Their taped report covered the span of time from eight minutes and twenty-five seconds pri- or to launch to seventy-three seconds after launch — when the shuttle self-destructed. The tape was immersed in salt water for 43 days before NASA recovered it. NASA was able to restore the tape to make a usable, albeit somewhat damaged, copy, which the agency then transcribed. The transcribed portion of the tape covers the period from two minutes and five seconds prior to launch up through seventy-three seconds after launch. See Challenger Transcript, reprinted in J.A. 39-43.

. There is no doubt that a file must contain “personal” information to be a "similar file” under Exemption 6. See Washington Post, 456 U.S. at 599, 102 S.Ct. at 1960 (Congress intended Exemption 6 to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information”) (emphasis added); id. at 599-600, 102 S.Ct. at 1960-1961 (Congress’ "'primary concern’ " in drafting Exemption 6 was to " ‘provide for the confidentiality of personal matters.' ’’) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 375 n. 14, 96 S.Ct. 1592, 1606 n. 14, 48 L.Ed.2d 11 (1976)) (emphasis added). In Washington Post, the Court did not stray from its conclusion in Rose that, in order to be a "similar file," a file must contain personal information. Rather, adhering to that view, the Court expanded the scope of the type of "personal information” that qualified for "similar file” status, rejecting this court’s narrower conception according to which the information had to be "highly personal or intimate in nature.”

. There undoubtedly will be some borderline cases in which it may be difficult to discern the subject of a file for Exemption 6 purposes — the possibility of vagueness, of course, attends every empirical concept. However, in any such case, a court is capable of making a context-specific inquiry to determine what or who is the subject of a file, taking into account such factors as the purpose for which an agency created and maintains the file and the understanding of the person who is possibly its subject.

In all cases the court’s assessment would turn upon the information actually contained within the file, i.e., whether the file contained information "which applies to a particular individual” such that that individual is a subject of the file. Contrary to the majority’s suggestion, posturing by the parties, such as how "opportunistically” they characterize the subject of a file, or what sort of information they hope might be extracted from it, would obviously be quite beside the point of the court’s central inquiry: whether the file actually contains personal information about a particular individual. In this case, for example, the court's assessment would be controlled by NASA’s concession that the tape contained no personal information about the astronauts. That the Times was unwilling to accept NASA's characterization at face value, and instead desired to judge the tape for itself, does not mean, as the majority seems to believe, that the tape must contain personal information after all; the Times, of course, has not heard the *1015tape and its speculations are therefore irrelevant.

. The “file” at issue in this case is a tape recording, and is in relevant respects no different from a written report or letter. NASA extends its argument, however, even to files containing a collection of papers, forms, etc. For example, NASA argues that the presence on a file of a fingerprint of its maker (i.e., its compiler, or even the person who copies the file to satisfy the FOIA request) — which is no less "essentially unique to a person” than is the voice, see Brief for Appellant at 24 — would convert it into a "similar file.” See Appellant’s Petition for Rehearing with Suggestion for Rehearing En Banc, at 13-14, New York Times Co. v. NASA (D.C.Cir.) (No. 87-5244). Moreover, even apart from the fingerprints of a file’s maker, virtually all files contain some kind of narrative reports about the subject of the file from which one may infer character information about the authors of those reports. Both examples illustrate the way in which NASA’s reading of "similar files,” adopted by the court today, eviscerates the threshold test in just the way that the statute and Washington Post both clearly forbid.

. As one might expect, this basic observation has not escaped the notice of artists. See, e.g., O. Wilde, The Picture of Dorian Gray, in The Complete Works of Oscar Wilde 379 (1963) (character in novel, a painter, asserting that "every portrait that is painted with feeling is a portrait of the artist, not of the sitter. The sitter is merely the accident, the occasion. It is not he who is revealed by the painter; it is rather the painter who, on the coloured canvas, reveals himself.”).

. The majority suggests only two categories of files that would not pass Exemption 6’s "similar files" test: those authored anonymously and those authored by so many persons that the files’ non-lexical information could not be traced to a single identifiable author. But this only points out the absurdity of the majority’s position. That a given file’s “similarity” to personnel or medical files should turn on whether it was written anonymously or by more than one person mocks Congress’ intentions in drafting the exemption. It is one thing to hold, as the Supreme Court did in Washington Post, that a passport file is “similar” to a personnel or medical file even though the personal information it conveys is not "intimate.” It is entirely another to hold, as the majority implicitly does today, that a Government report, even of the most mundane and impersonal nature, is "similar” to an individual’s personnel or medical file whenever it is authored by an identifiable Government bureaucrat.

. In Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), one of the Supreme Court’s early landmark opinions on Exemption 6, the information at issue pertained to the subjects of disciplinary investigations. See id. at 376-77, 96 S.Ct. at 1606-07. It was never even suggested that Exemption 6 might cover personal information pertaining to the investigators, i.e., the makers of the files. See also Carter v. Department of Commerce, 830 F.2d 388, 391 (D.C.Cir.1987) (portions of disciplinary investigation files withheld under Exemption 6 because disclosure would "identify the subjects of the investigations themselves") (emphasis added).

NASA illustrates just this point by offering a hypothetical example of a mine safety report that includes the following statement: "Inspector Jones conducted the inspection because Inspector Doe was in divorce court fighting for permanent custody of his daughter, Mary." See Substituted Supplemental Brief for Appellant at 15 n. 6. We agree with the agency’s suggestion, see id., that Inspector Doe’s privacy concerns might be important in an Exemption 6 analysis of such a case; this is because, in this hypothetical, Doe has become one of the subjects of the file. Inspector Jones, however, would be the author of the file, and not even the agency suggests that Exemption 6 would protect information that might be inferred about him.

. FOIA’s legislative history makes quite clear Congress’ intent to authorize broad disclosure under the statute, as well as its design to give a narrow scope to the nine exemptions from FOIA's mandatory disclosure requirements. See, e.g., S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965) (FOIA establishes a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language."); H.R.Rep. No. 1419, 92d Cong., 2d Sess. 7 (1972) (when in doubt, agency "supposed to lean toward disclosure, not withholding”); S.Rep. No. 854, 93d Cong., 2d Sess. 6 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6271 (exemptions to FOIA "mark the outer limits of information that may be withheld”) (emphasis removed). Following this clear legislative guidance, the Supreme Court has consistently observed that "[t]he Freedom of Information Act sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic society.’ ” FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978)) (citing ERA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832-33, 35 L.Ed.2d 119 (1973)). Thus, we do not view the Court’s reference in Washington Post to the “broad meaning” Congress intended to give “similar files," see 456 U.S. at 600, 102 S.Ct. at 1960-61, to be at odds with its “consistent statement” that "FOIA exemptions are to be narrowly construed,” see Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988) (citations omitted).

. There is a hint in the majority’s recounting of the facts that the Times' interest in obtaining the Challenger voice recording is sensational or ■" voyeuristic. Even accepting that proposition, however, we are not at liberty to rewrite FOIA to defeat an unseemly request. That the appel-lee’s purpose might be voyeuristic, and that its arguably morbid quest would indeed impinge upon the privacy and enhance the grief of the astronauts’ families does not authorize the court to expand upon the privacy protection that Congress ordained. Whatever the normal power of a reviewing court to "fill in the gaps" in a statute that falls short of covering the area generally delineated by Congress, that power is clearly trammeled in FOIA.

Congress made it very clear that the Act was intended to make all Government records subject to public disclosure, with only nine "exclusive” and "narrowly construed" exceptions. Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). That the privacy concerns expressed in the "second step” of Exemption 6 cannot be reached in this case is the function of the clear threshold that Congress created in the "first step” of Exemption 6. Any needed repairs to the way in which privacy concerns are protected by Exemption 6 must be undertaken by Congress, not by the courts.