Sherman v. United States Department of the Army

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-20401

STEPHEN SHERMAN,

Plaintiff-Appellant,

versus

UNITED STATES DEPARTMENT OF THE ARMY,

Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
March 7, 2001

Before, KING, Chief Judge, ALDISERT* and BENAVIDES, Circuit
Judges.

BENAVIDES, Circuit Judge:

In this Freedom of Information Act (FOIA) case, Stephen

Sherman appeals the district court’s grant of summary judgment in

favor of the United States Department of the Army (Army) with

respect to the Army’s decision, pursuant to exemption 6 of the

FOIA, to redact the social security numbers of service personnel

from portions of Sherman’s information request. Because we (1)

reject Sherman’s argument that the Army has the power to waive

the privacy interest of service personnel in limiting the

disclosure of their social security numbers, and (2) find that

*
Circuit Judge of the Third Circuit, sitting by
designation.
fulfillment of Sherman’s request, absent the redaction of social

security numbers, would constitute a clearly unwarranted

intrusion into the privacy interests of Army service personnel,

we AFFIRM the judgment of the district court.

Factual and Procedural Background

When Army officials approve individual or unit decorations,

that action is announced through an award order. Such orders may

reference an award approved for a single soldier or the awards

approved for multiple soldiers. Typically, orders contain a

soldier’s name, rank and unit, as well as specific information

relating the details of the conduct giving rise to the award.

The awards also contain an identification number for each soldier

listed within. Prior to 1968, personnel named in award orders

were identified by Army serial number (ASN). Beginning in 1968

and continuing through the 1990s, the Army identified personnel

by social security number (SSN). Thus, award orders issued after

1968 contain the SSNs of Army personnel, as opposed to ASNs.1

The Army recently hired a contractor to compile award orders

issued during the Vietnam era in a computerized database: the

Awards and Decorations Computer Assisted Retrieval System

(ADCARS).2 Paper versions of most award orders, including those

1
Since 1992, the Army has redacted portions of a soldier’s
SSN on documents. Depending on the circumstances, only the last
4 or 5 digits of an SSN are used currently.
2
The ADCARS database has two aspects. First, each order in
the system has been scanned into the database, creating a virtual
image of the original document. Additionally, the database
(continued...)

2
issued between 1965 and 1973, are still available to the public

through the Army or the National Archives. Yet, the Army now

relies on the ADCARS to investigate Vietnam era award inquiries

and fulfill related information requests.

In 1997, Stephen Sherman requested computer-tape copies of

the ADCARS database containing the roughly 611,000 general orders

issued between 1965 and 1973. The Army eventually responded to

Sherman’s request by offering computer copies of the orders

issued from 1964 to 1967 at the cost of reproduction, estimated

at $5000. With respect to orders issued from 1968 to 1973, the

Army found it necessary to redact all SSNs, pursuant to exemption

6 of the FOIA and the corresponding Army regulation, to avoid a

clearly unwarranted invasion of the privacy interests of Army

personnel. The Army offered Sherman a redacted version of the

database records provided he pay the cost of the redaction,

estimated at $350,000 to $1,000,000.3 Sherman complained to the

Army that redaction was unnecessary, improper and prohibitively

expensive. Additionally, Sherman sought a waiver of the fees

2
(...continued)
includes a text file of each order that facilitates key word
searches for information.
3
The Army maintains that this figure reflects the estimated
cost for responding to Sherman’s entire request, 1965 to 1973,
but redacting the SSNs. Absent the redaction, the Army estimates
the cost of reproducing the necessary tapes to be about $15,000.
The high cost of the redaction is caused by the need to manually
redact a paper version of each award order, then re-scan the
redacted order into the database.

3
associated with reproduction of the unredacted tapes pursuant to

the FOIA fee waiver provisions.4

Sherman filed the present action in the district court for

the Southern District of Texas seeking an injunctive order

requiring the Army to produce the requested documents without

redaction. On cross-motions for summary judgment, the district

court found that release of personnel SSNs included in the orders

would constitute an unwarranted invasion of the personal privacy

interests of Army personnel, and thus redaction of the requested

documents was proper pursuant to exemption 6. This appeal

followed in which Sherman raises two primary issues for review:

(1) Did the Army waive its authority to exercise exemption 6 by

publicly releasing the SSNs of service personnel to the public in

other instances, and (2) Did the district court properly balance

the public interest in disclosure of the materials contained in

Sherman’s FOIA request against the privacy interest of service

personnel in limiting the disclosure of their SSNs.

Discussion

Through the FOIA, Congress created a regime “designed to

pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” United States v. Ray,

4
Sherman has waived any argument that he is entitled to a
fee waiver and now argues “only that the redaction of social
security numbers is inappropriate.” At the same time, Sherman
maintains that the Army’s quoted price for providing the
unredacted copy of the ADCARS database is three times higher than
a bid by a third party contractor. Should he prevail in this
appeal, Sherman claims that he should only be required to pay the
lower price.

4
502 U.S. 164, 173 (1991). When a citizen requests public

information from a government agency through the FOIA, the agency

is generally required to make a full disclosure. See id.; 5

U.S.C. § 552. However, the FOIA also reflects Congress’

awareness that various public or private concerns could outweigh

the need for public disclosure of certain information. See

Department of Air Force v. Rose, 425 U.S. 352, 360-61 (1976);

Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996).

In this regard, Congress created nine exemptions through which

federal agencies may restrict public disclosure of information

that would threaten broader societal concerns. See 5 U.S.C. §

552(b). The informational privacy interests of private citizens

are among those concerns recognized and addressed by Congress in

these exemptions.5

Exemption 6 to the FOIA allows agencies to exempt from

disclosure information contained in “personnel and medical files

and similar files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.” Id. at § 552

(b)(6).6 Pursuant to exemption 6, an agency may delete personal

5
The Supreme Court has divided the right to privacy into
two related strands: “One is the interest in avoiding disclosure
of personal matters, and another is the interest in independence
in making certain kinds of important decisions.” Whalen v. Roe,
429 U.S. 589, 599-600 (1977). This Court has interpreted the
first strand to confer a right to protect from disclosure
confidential or sensitive information held by the government.
Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 1981). This right is
sometimes referred to as the right to “informational privacy.”
See, e.g., Crawford v. Trustee (In re Rausch), 194 F.3d 954, 958-
59 (9th Cir. 1999).
6
The FOIA also exempts from disclosure “records or
(continued...)

5
details within a document, provided the details to be deleted are

reasonably severable and the overall privacy interests of the

individual clearly outweigh the presumption of public disclosure.

Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 958 (5th Cir. 1996).

We review a district court’s summary judgment with respect to the

application of exemption 6 de novo. Id. The agency relying on

the exemption to prevent disclosure of information bears the

burden of establishing that application of the exemption is

appropriate. Id.

The threshold inquiry in exemption 6 cases is whether the

information requested includes “files” within the meaning of

section 552(b)(6). United States Dept. of State v. Washington

Post Co., 456 U.S. 595, 602 (1982). The Supreme Court has

interpreted exemption 6 “files” broadly to include any

“information which applies to a particular individual.” United

States Dept. of State v. Washington Post Co., 456 U.S. 595, 602

(1982). If the request includes such personal information,

6
(...continued)
information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information . . . (C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C.
§552(b)(7)(C). While both exemptions 6 and 7(C) protect
informational privacy interests, exemption 7(C) provides broader
protection because it does not require that an invasion be
“clearly” unwarranted. See United States Dep't of Defense v.
Federal Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994);
Halloran v. Veterans Admin., 874 F.2d 312, 319 (5th Cir. 1989).
In this regard, “[e]xemptions 7(C) and 6 differ in the magnitude
of the public interest that is required to override the
respective privacy interests protected by the exemptions.” Dep't
of Defense, 510 U.S. at 496 n.6. That difference aside, the
manner in which courts analyze the applicability of exemption
7(C) is the same as that used with respect to exemption 6. See
id.

6
“courts must determine whether release of the information would

constitute a clearly unwarranted invasion of that person’s

privacy.” Id. This determination, in turn, depends on a

balancing of “‘the individual’s right of privacy’ against the

basic policy of opening ‘agency action to the light of public

scrutiny.’” Ray, 502 U.S. at 175 (quoting Rose, 425 U.S. at 372);

United States Dep't of Justice v. Reporters Comm. for Freedom of

the Press, 489 U.S. 749, 776 (1989)

The Supreme Court has narrowly defined the "public interest"

relevant to exemption 6 balancing as "the extent to which

disclosure would serve the core purpose of the FOIA, which is

contribut[ing] significantly to the public understanding of the

operations or activities of the government." Dep't of Defense,

510 U.S. at 495 (quotations and emphasis omitted). That interest

is not implicated by disclosure of information about private

citizens that has accumulated in various government files but

reveals little or nothing about an agency's own conduct.

Reporters Comm., 109 S.Ct. at 1472-73. Moreover, in considering

the public’s interest in the disclosure of requested information,

the professed intentions of the requestor are irrelevant.

Reporters Comm., 109 S.Ct. at 1480 ("[W]hether an invasion of

privacy is warranted cannot turn on the purposes for which the

request for information is made."). Instead, the court must

consider only whether the requested information sheds light on

agency action. Id. This benefit should flow directly from

disclosure, as “[m]ere speculation about hypothetical public

7
benefits cannot outweigh a demonstrably significant invasion of

privacy.” Ray, 502 U.S. at 179.

Where the public interest in exemption 6 balancing has been

defined narrowly, the privacy interest protected by the exemption

is more broad and “encompasses [an] individual’s control of

information concerning his or her person.” Dept. of Defense, 510

U.S. at 500 (quoting Reporters Comm., 489 U.S. at 763). Just as

a court should disregard the intentions of the requestor when

considering the public interest in a FOIA disclosure, it must

also look beyond the requestor’s good intentions when considering

the scope of personal privacy interests implicated by a FOIA

request. Id at 501-02 (considering privacy interest in light of

fact “that other parties, such as commercial advertisers and

solicitors, must have the same access under FOIA” as the party

requesting the information). At the same time, we should again

avoid speculation on privacy interests that may or may not be

implicated by disclosure of government documents. See Rose, 425

U.S. at 380 n. 19 (requiring “threats to privacy interests more

palpable than mere possibilities.”). Finally, we note that "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 (quotations omitted); Halloran, 874 F.2d at 322.

To justify the application of exemption 6 in this case, the

Army must demonstrate that release of SSNs would constitute a

clearly unwarranted invasion of the privacy interests of Army

personnel. While the Army has no objection to publicly

8
disclosing the basic content of the award orders requested by

Sherman, it maintains that “social security numbers linked to

individuals’ names and other identifying information increasingly

provide ready access to numerous personal details about an

individual, creating a very real danger of identity theft and

other significant intrusions on personal privacy.” As a

consequence, the Army believes that it must exempt personnel SSNs

from disclosure and require their redaction.7 Sherman counters

that redaction is inappropriate for two reasons: (1) the Army

waived its authority to rely on exemption 6 for this purpose when

it publicly disclosed personnel SSNs on prior occasions, and (2)

the public interest in allowing disclosure of the database

outweighs the informational privacy interest that service

personnel have in their SSNs.

A. The Waiver Argument

Sherman does not contest that exemption 6 analysis is

generally appropriate since the requested files do contain

personal information - SSNs. Rather, Sherman argues initially

that the Army’s consistent practice of disregarding an

individual’s privacy right in her SSN effectively waives the

7
The Army has not argued that the Privacy Act bars
disclosure of the SSNs in this case. We note that incorporation
of the Privacy Act into our analysis would not alter our
resolution of the case. The Privacy Act bars a government agency
from disclosing SSNs unless, inter alia, disclosure is required
by the FOIA. See 5 U.S.C. § 552a (b)(2). The FOIA requires
disclosure of Sherman’s entire request unless an exemption
supports redaction of SSNs. Hence, even starting from the
Privacy Act, the focus of our analysis properly falls on the
applicability of exemption 6 of the FOIA.

9
Army’s authority to rely on exemption 6. Sherman points out that

use of SSNs in the Army has been pervasive, and often public.

SSNs were included with any reference to an individual. Often,

recreational passes or other orders contained the names and SSNs

of multiple service members; those orders were then distributed

to other service members, as well as airlines, hotels and other

public organizations. As late as 1995, the SSNs of officers

whose promotion required congressional confirmation were

published in the Congressional Register. According to Sherman,

the Army has even sold lists of officers, together with their

SSNs and birth dates, through the Government Printing Office.

Finally, Sherman points out that the very award orders he seeks

were typically published in hometown newspapers at the time of

their issuance.

Sherman contends that this pervasive public use of SSNs by

the Army constitutes a waiver of any privacy interest protected

by exemption 6. As support for this position, Sherman relies on

two district court cases: Kimberlin v. Dept. of Justice, 921

F.Supp 833 (D.D.C. 1996) and Shell Oil Co. v. I.R.S., 772 F.Supp.

202 (D. Del. 1991). Neither case involves exemption 6 to the

FOIA. Indeed, as the district court noted, Shell Oil is wholly

inapposite, involving an application of the FOIA’s exemption 5,8

8
Exemption 5 applies to “inter-agency or intra-agency
memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5).

10
which does not implicate informational privacy concerns.9 The

court in Kimberlin, however, considered the role of waiver in the

more analagous context of exemption 7(C). The Kimberlin court

concluded that the Justice Department could not rely on exemption

7(C) to prevent disclosure of sensitive files that had been

previously released to the press because the prior disclosure

eradicated any privacy interest in the information.10 Id. at 836

(citing Nation Magazine v. United States Customs Service, 71 F.3d

885 (D.C. Cir. 1995). The court feared that, if the Justice

Department were allowed to rely on the exemption, it “could

selectively disclose non-public information to favored sources

and then invoke FOIA exemptions to prevent disclosure to press

sources not in their favor.” Id. at 835. Similarly, Sherman

argues that if we allow the Army to exempt material that it has

previously released publicly, we will effectively allow the Army

to selectively control disclosure of any documents containing

SSNs.

9
The district court in Shell Oil determined that the IRS
could not rely on exemption 5 of the FOIA to prevent disclosure
of IRS interpretations of the term “tar sand,” as defined in the
Crude Oil Windfall Profit Tax Act of 1980, when the IRS had
previously released its interpretation publicly. Shell Oil, 772
F.Supp. At 206. Like the court in Kimberlin, the Shell Oil court
was animated by a fear of empowering agencies to selectively
disclose materials publicly. See id. at 210. Thus, the court
held that when an agency makes a voluntary, authorized disclosure
of public information, whether the disclosure involved the actual
release of documents or some sort of “off the record” statement
or public reading, the relevant agency “waives any claim that the
information is exempt from disclosure under the deliberate
process privilege.” Id. at 209-10.
10
The plaintiff sought copies of all DEA files that related
to an investigation of former Vice President Dan Quayle and had
been previously released to the press.

11
 While we share the Kimberlin court’s concern regarding

selective disclosure with respect to those exemptions that

protect the government’s interest in non-disclosure of

information, we conclude that this concern, and the related

waiver analysis, are not implicated when a government agency

relies on exemption 6 to prevent disclosure of personal

information. The Supreme Court has explained that the privacy

interest at stake in FOIA exemption analysis belongs to the

individual, not the agency holding the information. Reporter’s

Comm., 489 U.S. at 763-65. Moreover, as noted, the fact that

otherwise private information at one time or in some way may have

been placed the public domain does not mean that a person

irretrievably loses his or her privacy interest in the

information. Id. at 770; Halloran, 874 F.2d at 322. Consistent

with these established principles, we hold that only the

individual whose informational privacy interests are protected by

exemption 6 can effect a waiver of those privacy interests when

they are threatened by an FOIA request. For that reason, we do

not accept Sherman’s argument that the Army has waived its

authority to implement exemption 6.11

11
We do not understand Sherman to argue that individual
soldiers have waived their privacy interest in the public
disclosure of their SSNs. Nevertheless, Sherman points out that
Army regulations after 1968 required individuals drafted into or
volunteering for service to submit their SSN. Sherman also
refers to Army officials as stating that, to their knowledge, no
service member ever objected to the use of an SSN. To the extent
that Sherman suggests this evidence proves individual soldiers
have consented to the public dissemination of their SSN, he is
mistaken because the Army only purported to use SSNs for official
purposes, not disclose them publicly.

12
 Our position squares with the reasoning of other circuits

that have considered waiver arguments in the FOIA context.

Though no circuit court has expressly analyzed waiver in a case

involving exemption 6, those circuits that have considered a

waiver argument with respect to the analogous exemption 7(C) have

reached results similar to ours.12 In contrast, circuit courts

that have found that an agency waived its right to an exemption

have done so only where the government’s own interests in

confidentiality, as opposed to the privacy interest of an

individual, were at stake.13

12
See, e.g., Fiduccia v. U.S. Dept. of Justice, 185 F.3d
1035, 1047 (9th Cir. 1999) (concluding that Justice Department
did not waive individual’s privacy interest in investigation
files recognized in exemption 7(C) by notifying public of ongoing
criminal investigation involving individual); Halpern v. FBI, 181
F.3d 279, 297 (2d Cir. 1999)(“Confidentiality interests [under
exemption 7(C)] cannot be waived through prior public disclosure
or the passage of time.”); Computer Professionals for Social
Responsibility v. U.S. Secret Service, 72 F.3d 897, 904 (D.C.Cir.
1996)(recognizing that only individual with privacy interest in
information could waive that interest for purposes of section
7(C) exemption); Massey v. F.B.I., 3 F.3d 620, 624 (2nd Cir.
1993) ( “[W]e are not convinced that the doctrine of waiver
applies to exemption (b)(7)(C).”) Kiraly v. F.B.I., 728 F.2d 273,
279 (6th Cir. 1984) (rejecting argument that by testifying in a
trial related to a police investigation, an individual waived any
privacy interest in FBI investigation records protected from
public dissemination by exemption 7(C)).
13
See, e.g., Cottone v. Reno, 193 F.3d 550, 553 (D.C. Cir.
1999)(stating that materials otherwise exempt pursuant to
exemption 3 lose their privileged status under FOIA once they
find their way into the public domain); City of Virginia Beach,
Va. v. United States Dep’t of Commerce, 995 F.2d 1247, 1253 (4th
Cir. 1993)(agency may waive exemption 3 protection of documents
protected by the deliberative process privilege through
voluntary, authorized release of material to a non-governmental
recipient); U.S. v. Metropolitan St. Louis Sewer Dist. (MSD), 952
F.2d 1040, 1045(8th Cir. 1992) (recognizing that government could
waive its own privacy interest in confidential documents,
protected in exemption 5, by publicly disclosing them).

13
B. Exemption 6 Balancing

That Sherman’s waiver argument fails does not end our

analysis. We must still determine whether the Army has carried

its burden in demonstrating that invasion of the personal privacy

interest in preventing disclosure of SSNs would be clearly

unwarranted by the public interest in disclosure of those SSNs.

We begin the necessary balancing by considering the nature and

extent of an individual’s privacy interest in his or her SSN.

Both Congress and other circuits have discussed the

significant privacy concerns surrounding the dissemination of

SSNs. Congress acknowledged those concerns in the Privacy Act of

1974, which barred government agencies from discriminating

against individuals that refuse to release their SSNs. Privacy

Act of 1974, Pub.L. 93-579, § 7, 88 Stat. 1896, 1909 (1974),

reprinted in 5 U.S.C. §552a (1996). The Senate Report supporting

adoption of the Act described the universal use of SSNs as

identifiers as “one of the most serious manifestations of privacy

concerns in the Nation.” S.Rep. No. 1183, 93d Cong., 2d Sess.,

reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6943.

Other circuits, relying in part on these Congressional

statements, have concluded that the privacy interest in SSNs is

significant, and thus public dissemination of information

containing SSNs must be monitored scrupulously. See Crawford,

194 F.3d at 958-59 (recognizing that “indiscriminate public

disclosure of SSNs, especially when accompanied by names and

addresses” can implicate informational privacy rights);

Greidinger v. Davis, 988 F.2d 1344, 1353 (4th Cir. 1993) (“[T]he

14
harm that can be inflicted from the disclosure of a social

security number to an unscrupulous individual is alarming and

potentially financially ruinous.”). Indeed, two of our sister

circuits have held that public disclosure of SSNs in files

requested under the FOIA constituted a clearly unwarranted

invasion of personal privacy under exemption 6. See Norwood v.

FAA, 993 F.2d 570, 575 (6th Cir. 1993)(determining that redaction

of SSNs from FOIA documents necessary to protect identities of

individuals discussed in documents); Int’l Bhd. of Elec. Workers

Local Union No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988)(holding

that redaction of social security numbers necessary because

requestor failed to demonstrate any public interest in disclosure

of the SSNs).

As both our sister circuits and Congress have suggested, an

individual’s informational privacy interest in his or her SSN is

substantial. The privacy concern at issue is not, of course,

that an individual will be embarrassed or compromised by the

particular SSN that she has been assigned. Rather, the concern

is that the simultaneous disclosure of an individual’s name and

confidential SSN exposes that individual to a heightened risk of

identity theft and other forms of fraud. See generally, Flavio

L. Komuves, We’ve Got Your Number: An Overview of Legislation and

Decisions to Control the Use of Social Security Numbers As

Personal Identifiers, 16 J. MARSHALL J. COMPUTER & INFO. L. 529

(1998). In considering the scope of the informational privacy

right, this Court has previously recognized the need to look

beyond the specific nature of information which an agency seeks

15
to redact as private, and consider the nexus between the

information to be redacted and other details which an individual

would not want publicly disclosed. Halloran, 874 F.2d at 321.

(“In both the FOIA and other contexts involving privacy concerns,

it has long been the rule that our concern is not with . . .

identifying information per se, but with the connection between

such information and some other detail . . . which the individual

would not wish to be publicly disclosed.”) In this regard, we

are comfortable measuring the scope of the privacy interest in a

SSN in terms of the dire consequences of identity theft and other

forms of fraud which are associated with SSN disclosure.14 That

said, we also believe that “[t]o weigh properly the privacy

interest involved, the dire consequences of identity theft must

be discounted by the probability of its occurrence.” Crawford,

194 F.3d at 959. Thus, the relatively low risk of identity theft

may sufficiently diminish the privacy interest in SSNs to warrant

their disclosure where a strong public interest in disclosure

14
We take notice of the fact that the Supreme Court has
reserved judgment on the role of the so-called “derivative-use
theory” in exemption 6 balancing. See Ray, 502 U.S. at 550; id.
at 550-51 (Scalia, J. concurring). Under the derivative use
theory, a court could consider whether information, which
standing alone is not private, might nevertheless be used to
uncover information that is private. Id. at 449 (majority
opinion). Similarly, information requested might not be of
general public concern, but could be used to locate or create
information that is of public concern. Id. Our analysis does
not implicate the derivative use theory. In assessing the Army’s
claim our focus is “solely upon what the requested information
reveals, not what it might lead to.” Id. (Scalia, J. concurring)
(citing Arieff v. United States Dept. of Navy, 712 F.2d 1462,
1468 (D.C. Cir. 1983)(Scalia, J.)). Sherman’s FOIA request
reveals SSNs. Those SSNs are substantially private because of
the identity fraud issues that they implicate.

16
exists. See id. (holding requirement that individuals filing for

bankruptcy submit their social security numbers with bankruptcy

application is warranted by government’s strong public interest

in preventing bankruptcy fraud and facilitating transparent

bankruptcy process). Nevertheless, we recognize that individual

citizens have a substantial informational privacy right to limit

the disclosure of their SSNs, and consequently reduce the risk

that they will be affected by various identity fraud crimes.

Against this substantial privacy interest, Sherman fails to

articulate clearly a competing public interest in disclosure of

the SSNs. Sherman implies that the SSNs, when combined with the

names of servicemen, might assist him and other historians to

identify individuals fraudulently claiming to have received

meritorious service awards during the Vietnam War. While we do

not dispute the merit of this activity, the Supreme Court has

limited our consideration of “public interest” to those types of

information that shed light on the nature of agency action, not

those that shed light on fraudulently-claimed military honors.

See Reporters Comm., 109 S.Ct. at 1472-73.

More generally, Sherman seems to admit that he has less

interest in the SSNs themselves, than the descriptive content of

the award orders that the SSNs happen to be mingled within. He

maintains that the historical value of the award orders does

contribute to public awareness of how the Army conducted the

Vietnam War. We agree that Sherman has articulated a public

interest that supports disclosure of the content of the award

orders. Indeed, as Sherman points out, the Army itself has

17
recognized the historical import of the awards and requires that

they be carefully prepared. Yet, the presence of the SSNs among

the award orders does not elucidate investigation into the Army’s

conduct of the Vietnam War or the types of conduct that gave rise

to awards for meritorious service. Stated differently, redaction

of the SSNs does not meaningfully detract from the public utility

of the award orders. See Ray, 502 U.S. at 178-79 (concluding

that the public interest in requested documents had been

“adequately served” by redacted version of the documents and

“that disclosure of the unredacted documents would therefore

constitute a clearly unwarranted invasion of [personal]

privacy.”). Thus, we reiterate our conclusion that Sherman has

failed to identify a public interest in the SSNs that would

warrant their disclosure.

Generally, Sherman argues in his brief that the cost of

redacting the SSNs renders his FOIA request untenable. Perhaps

as a consequence, he balances the public interest in disclosure

of all information contained in the requested database against

the privacy interest of an individual soldier in his SSN. As

noted, however, this is not the relevant inquiry for the purpose

of determining the propriety of the redaction pursuant to

exemption 6. See, e.g., Ray, 502 U.S. at 549 (balancing public

interest in disclosure of the redacted information against

privacy interest in the redacted information). In this sense,

Sherman’s approach resembles an argument in favor waiving the

redaction fee, not against the redaction. To the extent that

18
Sherman ever made a fee waiver request, however, he has expressly

abandoned it in this appeal.

Conclusion

The increasing prevalence of identity fraud, as reflected in

various federal statutes, demands that federal agencies take

particular care when publicly disclosing documents that contain

SSNs. We believe that the Army has acted properly in fulfilling

this responsibility. Because we conclude that invasion of the

informational privacy interest of individual soldiers in

disclosure of their SSNs would clearly be unwarranted in the

absence of any public interest in those SSNs, the Army

appropriately decided to redact the numbers from the award orders

requested by Sherman. Though the Army may previously have been

less diligent in preventing unnecessary public disclosure of

soldiers’ SSNs, such disclosure cannot waive the soldiers’

privacy interest in them. For these reasons, we AFFIRM the

district court’s summary judgment in favor of the Army.

19