New York Times Company v. National Aeronautics and Space Administration

852 F.2d 602, 271 U.S. App. D.C. 304, 15 Media L. Rep. (BNA) 2012, 1988 U.S. App. LEXIS 10104, 1988 WL 77420

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 29, 1988
• Docket: 87-5244
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge ROBINSON.

Dissenting Opinion filed by Circuit Judge DOUGLAS H. GINSBURG.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The question confronting us is whether a tape of voice communications aboard space shuttle Challenger during its final ill-fated flight is subject to mandatory public disclosure pursuant to the Freedom of Information Act (FOIA).¹ The District Court rejected a claim of statutory exemption and ordered release of the tape. We affirm.

I

On January 28,1986, Challenger self-destructed seventy-three seconds after liftoff, and all seven astronauts aboard were killed. Public interest in this lamentable event was intense, and media coverage was extensive. Eventually, the New York Times (the Times), invoking FOIA, requested the National Aeronautics and Space Administration (NASA) to furnish “transcripts of all voice and data communications recorded aboard the space shuttle Challenger” on the day of the tragedy, and, as well, copies of voice communications tapes.² NASA provided the Times with a written transcript of the only voice recording that was made,³ but, relying exclusively upon FOIA’s Exemption 6,⁴ refused to supply a copy of the tape itself.⁵ NASA asserted that release of the tape would encroach upon the personal privacy of the astronauts’ families by subjecting them to replay of the voices of their loved ones, “an intrusion on their grief which certainly would exacerbate feelings of hurt and loss.” ⁶ An administrative appeal by the Times was denied, again on the basis of Exemption 6.⁷

The Times then sued in the District Court for release of the voice communications tape.⁸ On cross-motions for summary judgment, the court ordered disclosure.⁹ Since the voice recording contained no personal information about the astronauts or their families, the court reasoned that it was not a “similar” file within the meaning of Exemption 6.¹⁰

II

By virtue of Exemption 6, FOIA’s disclosure requirement does not apply to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”¹¹ The analysis involves two steps. The threshold question is whether the material at issue is contained in a personnel, medical, or similar file.¹² If it is, the court must then balance the individual and governmental interests involved in order to determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy.¹³ Because the District Court held that Challenger’s voice tape did not satisfy the threshold requirement, it never reached the second stage of the test.¹⁴

NASA contends that the District Court erred in concluding that the voice tape contained no personal information about the astronauts and for that reason was not a similar file.¹⁵ NASA argues that the human voice, being unique to each individual, “clearly is information about the individual and identifiable as such.” ¹⁶ In other words, NASA theorizes that the characteristics placing this tape within the similar-files category of Exemption 6 are “the sound and inflection of [the astronauts’] voices.” ¹⁷ Accordingly, NASA presses us to hold that the recording is a similar file, and to remand the case for the District Court’s determination of whether its release would cause a clearly unwarranted invasion of personal privacy.

According to the Times, “[t]he language and legislative history of Exemption 6 shows that the ‘similar files’ requirement draws a critical distinction between records containing ‘personal information’ and records that document only official government activity.”¹⁸ Consequently, the Times urges us to focus on the content of the tape, not on the fact that the information is communicated in verbal rather than written form. Because the words gathered on the tape relate only to Challenger’s launch and therefore are nonpersonal, the Times argues that the tape is not a “similar” file, and so must be disclosed.

This is an atypical FOIA case. At issue is a voice recording, a transcript of which has already been released by NASA. It is undisputed that the tape reflects nothing concerning the personal lives of the astronauts or members of their families, and that the words spoken pertain only to the launch.¹⁹ Furthermore, NASA admits that inflections of the astronauts’ voices do not reveal any appreciable information not available through the transcript:²⁰

The declarations submitted by NASA indicate that the voices of the astronauts in this case do not convey any significant information beyond the words spoken, but that does not detract from the personal quality of the voices, and their identifiability with particular persons, which is alone sufficient to satisfy the “similar files” requirement of Exemption 6.²¹

Thus, NASA’s Exemption 6 claim arises, not because of the information recorded on the tape, but rather because that information is conveyed orally. We thus must decide whether the sound of the human voice communicating nonpersonal information will alone raise the tape to the level of a “similar” file for purposes of Exemption 6.

Ill

For guidance in construing the phrase “similar files” in Exemption 6, we must look, as the District Court did, to the Supreme Court’s decision in Department of State v. Washington Post Co.22 There the Court held that records reputedly establishing the citizenship status of two Iranians living in Iran would constitute similar files.²³ This court previously had interpreted “similar files” as including only agency records containing information as personal or intimate in nature as that found in personnel or medical files.²⁴ Drawing on legislative history, however, the Supreme Court concluded that Congress did not intend to limit “similar files” “to a narrow class of files containing only a discrete kind of personal information.” ²⁵ On the contrary, the Court said,

[t]he House and Senate Reports, although not defining the phrase “similar files,” 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. After referring to the “great quantities of [Federal Government] files containing intimate details about millions of citizens,” the House Report explains that the exemption is “general” in nature and seeks to protect individuals....²⁶

Accordingly, the Court explained, “Congress’ statements that it was creating a" ‘general exemption’ for information contained in ‘great quantities of files’ ... suggest that the phrase ‘similar files’ was to have a broad, rather than a narrow, meaning.” ²⁷ Thus the Court made clear that a record need not contain highly personal information or intimate details in order to be a similar file for purposes of Exemption 6.

The Court, however, did not discard the threshold test of similarity entirely. Indeed, the Court stated specifically that its decision should not be taken as an evisceration of the first stage of the Exemption 6 analysis:

This construction of Exemption 6 will not 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.... [T]here are undoubtedly many Government files which contain information not personal to any particular individual, the disclosure of which would nonetheless cause embarrassment to certain persons. Information unrelated to any particular person presumably would not satisfy the threshold test.²⁸

Applying in this case the Supreme Court’s ruling in Washington Post, the District Court reasoned:

In sum, notwithstanding its broad construction of the phrase “similar files”, the Supreme Court has not eliminated the fundamental requirement that a government record contain personal information about an individual before it can be considered a “similar file” within the meaning of Exemption 6. Since it is undisputed that the Challenger tape at issue here contains no such information about the astronauts or their family members, 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.²⁹

NASA asserts that because the tape incorporates identifiable human voices, it is “related to” and “personal to” particular individuals and as such it surmounts the “similar files” threshold.³⁰ We disagree. The Supreme Court’s treatment in Washington Post of the legislative history of Exemption 6 leads us to conclude that a file is not to be considered “similar” unless at a minimum it contains personal information — information somehow related to an individual’s life. To call the sound of a human voice “personal information” distorts the plain meaning and common understanding of the phrase, as well as the meaning Congress ascribed to it. As such, the tape recording of the voices of the astronauts in this case, without more, does not constitute a similar file.

In Washington Post, the Supreme Court emphasized 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.” ³¹ The Court quoted from the House Report, which revealed that Exemption 6 “ ‘[was] intended to cover detailed government records on an individual which can be identified as applying to that individual.’ ”³² The Court also cited Department of Air Force v. Rose,³³ in which the Court had noted that “the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters.”³⁴ The Court thus has made clear that a record must contain information about a particular person in order to be a similar file.

Perhaps most telling is the Court’s language in Washington Post when it delineated the character of Exemption 6’s “similar files” requirement. “Information unrelated to any particular person,” the Court declared, “presumably would not satisfy the threshold test.”³⁵ The information captured on the voice recording here at issue bears significance only with respect to the launch of the space shuttle. Although these data are preserved verbally, the tape contains no information about any astronaut beyond participation in the launch.³⁶

We conclude that the information recorded on the tape is “unrelated to any particular person” and therefore is not a similar file.

To accept NASA’s divergent argument would be to hold that every tape recording of audible human utterances, regardless of its content, is invariably a similar file because every person’s voice is essentially unique. If, for example, a governmental official gave a public speech about the activities of a governmental agency, a tape of the speech automatically would be a similar file despite the fact that it contains no information personal to the official or anyone else. Mere shifting of the focus from the nature of the information recorded to the manner in which that information was conveyed would in this case render the similar-files threshold meaningless.

Moreover, accreditation of NASA’s argument that the uniqueness of the individual astronauts’ voices renders the tape a similar file would lead to incongruous results in analogous contexts. Since handwriting is identifiable as the work of a particular individual, by NASA’s reasoning every handwritten document would also become a similar file. Likewise, a printed or typewritten document bearing someone’s fingerprints, which, just as human voices, are unique to each individual, would also be a similar file. In each instance the same conclusion would be foregone, and in combination the threshold of “personal information” would be ravaged. This much too expansive reading of Washington Post cannot be sustained.

NASA points to the comment in Washington Post Co. v. HHS that the similar-files requirement “is fairly minimal.”³⁷ We agree, but that is not to say that the threshold test is nonexistent. To cross the threshold, a record need only incorporate information about an individual that is “personal” in the sense contemplated by Exemption 6. Challenger’s voice communications tape contains no such information, and thus is not a similar file. Failing to meet the threshold precondition for protection under Exemption 6, the tape must be disclosed.

The judgment appealed from is accordingly

Affirmed.

1 . 5 U.S.C. § 552 (1982).

2 . Letter from David E. Sanger to Shirley Green (July 18, 1986), Joint Appendix (J.App.) 36. Challenger was outfitted with three inflight digital tape recorders, each of which performed a separate function. One monitored payload data, another monitored main engine data, and the third—the “OPS 2" system involved here— recorded the astronauts' voices. Brief for Appellant at 4; Declaration of Robert W. Moore-head ¶ 2 (Jan. 27, 1987), Exhibit 1 to Defendant’s Statement of Material Facts, New York Times Co. v. NASA, Civ. No. 86-2860 (D.D.C.) (filed Jan. 30, 1987), J.App. 105 [hereinafter Moorehead Declaration]. The OPS 2 system, which used voice-activated microphones mounted inside the astronauts’ helmets, began recording at 8 minutes and 25 seconds prior to launch, and continued until the shuttle lost power 73 seconds after launch. Brief for Appellant at 4; Moorehead Declaration, supra, ¶¶ 2, 3. The tape suffered some damage from submersion in salt water for 43 days before it was recovered, but NASA was able to produce a useable copy, which thereafter was transcribed. Brief for Appellant at 5-6; Moorehead Declaration, supra, ¶¶ 3, 4, 11.

3 . See Letter from Lillian R. Levy to David E. Sanger (Aug. 1, 1986), J.App. 37-38 [hereinafter Levy Letter],

4 . 5 U.S.C. § 552(b)(6) (1982), quoted in text infra at note 11.

5 . Levy Letter, supra note 3, at 1, J.App. 37.

6 . Id.

7 . See Letter from Ann Bradley to David E. Sanger (Sept. 30, 1986), J.App. 46-50.

8 . See Complaint, New York Times Co. v. NASA, Civ. No. 86-2860 (D.D.C.) (filed Oct. 20, 1986), J.App. 5-8.

9 . New York Times Co. v. NASA, 679 F.Supp. 33, 37 (D.D.C.1987).

10 . Id. at 36.

11 . 5 U.S.C. § 552(b)(6) (1982). The agency carries the burden of persuading the court that exemption on this account is appropriate. Goldberg v. Department of State, 260 U.S.App.D.C. 205, 210, 818 F.2d 71, 76 (1987), cert. denied, — U.S. -, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988); Ripskis v. HUD, 241 U.S.App.D.C. 8, 10, 746 F.2d 1, 3 (1984); Getman v. NLRB, 146 U.S.App.D.C. 209, 212, 450 F.2d 670, 673 (1971).

12 . See Department of State v. Washington Post Co., 456 U.S. 595, 598, 102 S.Ct. 1957, 1959, 72 L.Ed.2d 358, 362 (1982); Washington Post Co. v. HHS, 223 U.S.App.D.C. 139, 147, 690 F.2d 252, 260 (1982).

13 . See Department of State v. Washington Post Co., supra note 12, 456 U.S. at 598, 102 S.Ct. at 1959, 72 L.Ed.2d at 362; Washington Post Co. v. HHS, supra note 12, 223 U.S.App.D.C. at 147, 690 F.2d at 260.

14 . See New York Times Co. v. NASA, supra note 9, 679 F.Supp. at 36 n. 6.

15 . Brief for Appellant at 15.

¹⁶

17 . Id. at 25.

18 . Brief for Appellee at 9.

19 . NASA does not dispute the Times’ assertion that ”[t]he words spoken on the withheld tape are 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 New York Times Company’s Statement of Material Facts ¶ 6, New York Times Co. v. NASA, Civ. No. 86-2860 (D.D.C.) (filed Dec. 22, 1986), J.App. 27; Defendant’s Statement of Genuine Issues Concerning Plaintiff’s Statement of Material Facts ¶ 1, New York Times Co. v. NASA, Civ. No. 86-2860 (D.D.C.) (filed Jan. 30, 1987), J.App. 100; see Transcript of the Challenger Crew Comments from the Operational Recorder, J.App. 39-43.

20 .This is not a case in which release of the tape will reveal the otherwise-unknown identity of the individual speaking. The identities of the astronauts are, in fact, disclosed in the transcript. See Transcript of the Challenger Crew Comments from the Operational Recorder, J.App. 39-43.

21 . Brief for Appellant at 25 n. 10 (emphasis in original) (citing Declaration of Robert L. Crip-pen ¶ 5 (Jan. 27, 1987), Exhibit 2 to Defendant’s Statement of Material Facts, New York Times Co. v. NASA, Civ. No. 86-2860 (D.D.C.) (filed Jan. 30, 1987), J.App. 143 (“[n]othing in any voice inflection on the tape indicates that any member of the crew was aware that any problem existed at any time”)).

22 . Supra note 12.

23 . 456 U.S. at 602, 102 S.Ct. at 1961, 72 L.Ed.2d at 364.

24 . Washington Post Co. v. Department of State, 207 U.S.App.D.C. 372, 373-374, 647 F.2d 197, 198-199 (1981), rev’d 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); see also Simpson v. Vance, 208 U.S.App.D.C. 270, 273, 648 F.2d 10, 13 (1980); Board of Trade v. Commodity Futures Trading Comm’n, 200 U.S.App.D.C. 339, 346, 627 F.2d 392, 399 (1980).

25 . Department of State v. Washington Post Co., supra note 12, 456 U.S. at 602, 102 S.Ct. at 1961, 72 L.Ed.2d at 364.

26 . Id. at 599, 102 S.Ct. at 1960, 72 L.Ed.2d at 362-363.

27 . Id. at 600, 102 S.Ct. at 1960-1961, 72 L.Ed.2d at 363.

28 . Id. at 602 n. 4, 102 S.Ct. at 1962 n. 4, 72 L.Ed.2d at 365 n. 4 (emphasis added).

29 . New York Times Co. v. NASA, supra note 9, 679 F.Supp. at 36.

30 . Brief for Appellant at 12.

31 . 456 U.S. at 599, 102 S.Ct. at 1960, 72 L.Ed.2d at 362-363 (emphasis added).

32 . Id. at 602, 102 S.Ct. at 1961, 72 L.Ed.2d at 364 (quoting H.R.Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966) U.S.Code Cong. & Admin.News 1966, pp. 2418, 2428) (emphasis added).

33 . 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).

34 . 456 U.S. at 599-600, 102 S.Ct. at 1960, 72 L.Ed.2d at 363 (quoting Department of Air Force v. Rose, supra note 33, 425 U.S. at 375 n. 14, 96 S.Ct. at 1606 n. 14, 48 L.Ed.2d at 29 n. 14) (emphasis added); see also Washington Post Co. v. HHS, supra note 12, 223 U.S.App.D.C. at 147, 690 F.2d at 260 (similar files threshold "ensures that FOIA's protection of personal privacy is not affected by the happenstance of the type of record in which personal information is stored”) (emphasis added).

35 . 456 U.S. at 602 n. 4, 102 S.Ct. at 1962 n. 4, 72 L.Ed.2d at 365 n. 4.

36 . See note 19 supra and text accompanying notes 19-21 supra.

37 . 223 U.S.App.D.C. at 147, 690 F.2d at 260.