New York Times Company v. National Aeronautics and Space Administration

920 F.2d 1002, 287 U.S. App. D.C. 208, 18 Media L. Rep. (BNA) 1465, 1990 U.S. App. LEXIS 21108, 1990 WL 193333

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 7, 1990
• Docket: 87-5244
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge D.H. GINSBURG, in which Circuit Judges SILBERMAN, BUCKLEY, WILLIAMS, SENTELLE, and THOMAS concur.

Dissenting opinion filed by Circuit Judge EDWARDS, in which Chief Judge WALD, Circuit Judges MIKVA and RUTH BADER GINSBURG, and Senior Circuit Judge ROBINSON concur.

D.H. GINSBURG, Circuit Judge:

This case involves a claim under Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6), by which NASA seeks to withhold a tape of voice communications aboard the brief and tragic flight of the Challenger space shuttle. The district court held that the tape failed the threshold test for Exemption 6 because it was not within the category of “personnel and medical files and similar files” to which the exemption applies, and ordered the release of the tape. New York Times Co. v. NASA, 679 F.Supp. 33, 36 (1987). That decision was initially affirmed by a divided panel of this court. 852 F.2d 602 (1988). We now reverse.

Under controlling Supreme Court precedent, NASA need not disclose “information which applies to a particular individual” if its disclosure “would constitute a clearly unwarranted invasion of personal privacy.” Department of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 1961-62, 72 L.Ed.2d 358 (1982); 5 U.S.C. § 552(b)(6). We believe that a tape of the voices of the Challenger crew meets the threshold test: it applies to particular individuals. Accordingly, NASA is entitled to an opportunity to prove its claim that release of the tape would invade the privacy of the deceased astronauts, or of their families. We therefore remand this case for the district court to consider the strength of the private and public interests involved before deciding whether NASA must release the Challenger tape.

I. Background

On January 28, 1986, Gregory B. Jarvis, Christa McAuliffe, Ronald E. McNair, Ellison S. Onizuka, Judith A. Resnik, Francis R. Scobee, and Michael J. Smith perished in the explosion of the space shuttle Challenger. Media coverage of the disaster was intensive and extensive; the appellee, New York Times, alone published more than 600 articles on this tragedy and its aftermath. Among these articles was a lengthy account of the continuing effect of the disaster, a year later, on the crew members’ families, describing in detail their grief and their attempts to cope with the loss of their loved ones. See Astronauts’ Families Still Struggle With Grief and Finance, N.Y. Times, Jan. 6, 1987, p. Cl, col. 1.

Some weeks after the tragedy, NASA was able to locate and recover from the ocean floor a tape recording of voice communications among the Challenger crew and between the crew and ground control before and during the brief flight. The Times asked for a duplicate of the tape. NASA declined that request, but it did provide the Times with a transcript of the tape. In a letter to the Times, NASA claimed that giving the news media a copy of the audio tape itself would subject the astronauts’ families “to hearing the voices of their loved ones, an intrusion on their grief which would certainly exacerbate feelings of hurt and loss.” Unsatisfied, the Times filed suit in the district court, invoking the FOIA.

In the district court the Times claimed that “a voice communication tape is essential to fully understand an aircraft accident and to evaluate appropriate corrective measures.” “The tape,” the Times argued, “contains important information which NASA’s transcript — even if it were totally accurate — cannot bring to public light,” including the astronauts’ “voice inflections.” Listening to the tape, the Times contended, will enable the public to verify NASA’s conclusion that “the astronauts had no advance warning of a problem and that the sounds from the engines were not ‘unusual.’ ” It also pointed out that the words spoken on the tape (as revealed in the transcript) contain no personal information about the astronauts or their families. NASA responded that it was the voice inflections, not the words spoken, that it was seeking to withhold because such inflections are personal to the astronauts.

II. Analysis

Exemption 6 provides that the disclosure requirements of the FOIA 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). NASA makes no claim that the tape it seeks to withhold is a personnel or medical file. To come within the protection of Exemption 6, therefore, the tape must first satisfy the threshold requirement of being a “similar file[ ].” Because the district court held that the tape did not constitute such a file, it never reached the second stage of the Exemption 6 analysis — whether the release of the file would result in a clearly unwarranted invasion of privacy.

A. Similar Files Under Exemption 6

The only question before this court is whether the tape passes the threshold requirement, not the strength of the private and public interests at stake. The nature of the Times’s interest is relevant to the threshold issue, however, because it makes clear that the file contains something beyond the content of the words in the printed transcript — “information which applies to a particular individual,” namely his or her voice inflection at a particular moment. Thus, while the taped words do not contain information about the personal lives of the astronauts, disclosure of the file would reveal the sound and inflection of the crew’s voices during the last seconds of their lives.¹ Therefore, the tape contains personal information the release of which is subject to the balancing of the public gain against the private harm at which it is purchased.

The FOIA makes no distinction between information in lexical and that in non-lexical form; all information is equally covered by the general norm of disclosure, and equally subject to the same specific exemptions therefrom. The lexical and non-lexical aspects of a file may convey different information, however, and when the government asserts that only the non-lexical aspect is exempt from disclosure, the court must consider whether the information that would be newly revealed by that disclosure is or is not exempt. A textual report accompanied by a picture, for example, provides more information than the text of the report alone. In a particular case, the picture might be exempt from disclosure while the text is not (or vice versa).²

Lest there be any doubt that voice inflections can contain personal information, recall the 1967 fire in the cockpit of the Apollo 1 spacecraft, which killed Edward H. White, 2d, Roger B. Chaffee, and Virgil I. (Gus) Grissom. In that tragedy, too, NASA had a tape of the last moments of the astronauts’ lives. The New York Times was then content, however, to publish an article based solely upon the verbal description given by NASA, without gaining access to the sounds on the tape. Here is how the Times recounted the last few seconds in the cockpit:

“Fire ... I smell fire,” an unidentified astronaut reported over the intercom.

Two seconds passed.

“Fire in the cockpit!” cried Colonel White.

This time the voice was sharp and insistent. It was identified as Colonel White’s by Donald K. Slayton, a former astronaut and now chief of crew operations.

There was silence for three seconds— then a hysterical shout from an unidentified astronaut:

“There’s a bad fire in the spacecraft!”

A longer gap followed, about seven seconds. There were sounds of frantic movement, unintelligible shouting. Finally, after four more seconds, Commander Chaffee cried out the last words of distress: “We’re on fire — get us out of here!”

N.Y. Times, Jan. 31, 1967, p. 1. The description alone is chilling. One can hardly doubt that the horror in the. voices on the tape would convey additional information that applies to the astronauts in the throes of their deaths.

In the Washington Post case, this court, in a holding subsequently rejected by the Supreme Court, decided that “to qualify as ‘similar’ files,” within the meaning of Exemption 6, “the recorded data must incorporate ‘intimate details’ about an individual, information of the same magnitude — as highly personal or as intimate in nature — as that at stake in personnel and medical records.” Washington Post Co. v. Department of State, 647 F.2d 197, 198-99 (1981) (citations omitted), rev’d, 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). The Supreme Court admonished that in crafting Exemption 6, Congress had “concluded that the balancing of private against public interests ... should limit the scope of the exemption.” 456 U.S. at 599, 102 S.Ct. at 1960. Thus the Supreme Court requires that in applying the threshold test, we look “not [to] the nature of the files” that contain the information sought in a FOIA request, but to the nature of the information requested. Id. The information need not be intimate; the threshold for application of Exemption 6 is crossed if the information merely “applies to a particular individual.” Id. at 602, 102 S.Ct. at 1961—62. As this court subsequently put it, the threshold is “minimal.” Washington Post Co. v. HHS, 690 F.2d 252, 260 (1982) (“This ensures that FOIA’s protection of personal privacy is not affected by the happenstance of the type of agency record in which personal information is stored.”).

There is, of course, a very good reason why the Exemption 6 threshold was set at a low level: information that fails to cross that threshold must be released without regard to any invasion of personal privacy that may result, and without regard to whether there is a sufficient public interest in its release to warrant the harm caused by that invasion of privacy. A threshold that excludes too much would undermine what the Supreme Court described as the Congress’s objective of “provid[ing] a proper balance between the protection of an individual’s right of privacy and the preservation of the public’s right to Government information.” H.R.Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966), U.S.Code Cong. & Admin.News 1966, 2418, 2428, quoted in Washington Post, 456 U.S. at 599, 102 S.Ct. at 1960.

The panel opinion affirming the district court rejected NASA’s argument that voice inflections constitute personal information because of the perceived consequence that “every tape recording of audible human utterances, regardless of its content, [would be] invariably a similar file.... 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.” 852 F.2d at 607. In this the panel twice erred.

First, in treating the words recorded as the totality of the “information ... conveyed,” it failed to acknowledge that information is not conveyed by words alone. The information recorded through the capture of a person’s voice is distinct and in addition to the information contained in the words themselves. Reading the libretto of a Verdi opera is not the same as hearing the opera performed. So, too, the meaning of Marc Antony’s speech over the body of Caesar is not to be found in the disembodied words on the printed page, but in the voice that contradicts them.

Second, it is simply not correct that recognizing non-lexical information as one type of information that can “apply to an individual” would “render the similar files threshold meaningless.” Not every government file contains information about an individual. There are surely millions, perhaps billions, of government documents that say nothing about any individual, being composed instead of financial or scientific data, statistics, crop reports, and so on. Even when such a file does contain information apart from and beyond the content of the words used, it may not be possible to identify the individual to whom that information applies. Or there may be multiple authors, each of whom may have contributed to the file non-lexical information that cannot be traced to, and therefore does not reflect upon, any one person. Examples might include an unidentified voice or likeness in an audio or video tape, or such non-lexical information as might be gleaned from a file compiled by numerous unnamed and unknown government employees. The Government could not cross the similar files threshold to assert a privacy interest in such information.

Indeed, the Supreme Court explains in Washington Post that a broad interpretation of what constitutes personal information does “not render meaningless the threshold requirement” that the information be contained in a “similar file.” There the Court states:

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 certain persons. Information unrelated to any particular person presumably would not satisfy the threshold test.

456 U.S. at 602 n. 4, 102 S.Ct. at 1962 n. 4. What petitioners in that case had pointed out was that

Disclosure of financial records of a large corporation might, for example, prove embarrassing to the corporation’s officers or board of directors.... But that financial information would not, simply by virtue of the damaging impact, become “personal” information that meets the threshold test of Exemption 6.

Pet.Br. at 21 n. 7, Washington Post (No. 81-535). Recognizing the potentially personal quality of non-lexical information would no more render the threshold meaningless, therefore, than does the Washington Post decision itself: the financial records of a large corporation, which the Supreme Court instanced, still do not pass the threshold because they do not contain information “personal to any particular individual.”

B. The Author/Subject Fallacy

Notwithstanding the Supreme Court’s reference to “any particular individual,” the dissenters’ new conceit is that “in order to be a ‘similar file,’ a file must contain personal information about the subject (not just the author or maker) of that file.” Dis. op. at 1016-17. This restriction on the scope of Exemption 6 does not even pretend to any legislative parentage.³ And it casually ignores binding precedent that establishes the scope of Exemption 6: in Washington Post, the Supreme Court instructed us to look not to “the nature of the file[ ] in which the information [is] contained,” 456 U.S. at 599, 102 S.Ct. at 1960, but solely to whether the information in the file “applies to a particular individual,” id. at 602, 102 S.Ct. at 1961-62. An author may be a “particular individual,” and as such may have a privacy interest cognizable under Exemption 6.

A second difficulty with the dissent’s distinction between the subject and the author of a file is that it implicitly, and erroneously, presupposes that every file has an inherent and discoverable “subject.” Such an assumption would invite every FOIA plaintiff, and the district courts to which they repair, to describe the subject of disputed files opportunistically in order to bolster the ease for disclosure.

In this case, for example, whether the astronauts are a subject of the Challenger tape depends upon the information that one seeks to extract from that tape. The dissenters say that the “subject [of the file], for Exemption 6 purposes, would be the operation of the shuttle.” Dis. op. at 1017. That is no doubt one fair statement of the subject of the transcript (or of some of it, perhaps not including such lines as “Feel that mother go,” or the final entry, “Uh-oh”). But it is mechanistic in the extreme to insist that it is also the only fair statement of the subject of the tape, which adds to the transcript the astronauts’ voice inflections. Yet insist the dissent does — as though the world were neatly divided and labeled according to the rules of English usage. And as though it were not clear— for it is undisputed — that NASA’s “interest in retrieving [from the ocean floor] the voice and data recorded on that tape was to determine what the crew was aware of during the flight,” Moorehead Decl., Jan. 27, 1987, Ex. 1, Defendant’s Motion for Summary Judgment, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987), and not, as the dissent would have it, to assess “the operation of the shuttle.”

The suggestion that, in “some borderline cases,” a court must make a “context-specific inquiry to determine what or who is the subject of a file,” dis. op. at 1014 n. 4, fails to recognize that the relevant context is a function of the purpose of the inquiry. Divorced from the statutory purpose of identifying “information which applies to a particular individual,” a “context-specific inquiry” is an experiment without a hypothesis, a useless thing, yielding only arbitrary or incoherent results.

Suppose that “the purpose for which an agency created and maintains” a file is the study of voice inflections, or research into computerized voice recognition. In a file of audio tapes classified by type of voice inflection, this one might be under the heading “mortal fear.” In a file created in the course of voice recognition research, it might be found under the name of the person whose voice it is. Obviously, there is no unique subject inherent in the text of the file. One could equally well say of the Challenger tape — depending upon the filing system in which the agency “maintains” it — that the subject is an air disaster, last words, astronauts, voices of famous people, or, as the dissent classifies it, “the operation of the shuttle,” dis. op. at 1017. The logic of the dissent offers no criterion by which we, or a subsequent court, could be guided in the bootless search for “the subject” of a file; one could stop arbitrarily at any point and announce a result, as one likes.

This is amply illustrated by the dissent itself, which attempts to distinguish the case of the Apollo 1 tape, dis. op. at 1018, by suggesting that over the course of a few seconds the authors of that tape were somehow “transformed” into its “subjects.” Why is there no similar metamorphosis in the crew of the Challenger? Even the Times acknowledged what the dissenters would now deny, viz. that it is “the question of how long the astronauts in the capsule survived ... to which this tape directly relates.” Transcript of Hearing on Cross Motions for Summary Judgment, May 14, 1987, at 33, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987). No explanation is, or could be, provided because the approach taken by the dissent offers no criterion of judgment.

As for incoherent results, suppose next that someone doing research for a biography of Commander Scobee seeks disclosure under the FOIA of “all cockpit and other voice recordings of Commander Scobee,” or of a (hypothetical) NASA file, “Oral Statements of Commander Scobee,” containing every voice recording he ever made in the course of his work for the agency. By the dissenters’ approach, the subject of each individual tape might well be something like “the operation of the shuttle.” Yet it is inconceivable that the subject of the file of collected tapes would not be the person whose voice is their unifying theme, viz. Commander Scobee. Disclosure would thus depend upon whether the tapes are scattered among files relating to different missions, as opposed to being collected in the single file instanced above.

These “context-specific” searches for the “subject” of each file sought under the FOIA and withheld under Exemption 6 are neither useful nor necessary. An inquiry into the reason a file was created, or the manner in which it is maintained, does not appear to be any different from an inquiry into the label on the file, which the Supreme Court emphatically rejected in Washington Post. Under that case, our concern must be solely with whether the information “applies to a particular individual,” not with “the nature of the file[ ] in which the information [is] contained.” 456 U.S. at 599, 102 S.Ct. at 1960.

Finally, there is no warrant for the dissenters’ fear that we are abandoning the norm of narrow construction applicable to exemptions under the FOIA. The operation of Exemption 6 will be limited in the manner the Congress and the Supreme Court expected it to be limited: at the balancing stage. It is the rare file indeed for which the Government could, in good faith, assert an interest in authorial privacy, simply because it is most unusual for a government file to yield up any meaningful information about its author.⁴ (In fact, research reveals no case in which the Government has ever before even asserted the privacy interest of the author of a file.) Even more rarely, of course, will the author’s interest outweigh the public interest in disclosure of the government file that he or she authored.

For precisely that reason, all but the most unusual assertion of authorial privacy would easily be disposed of under the categorical approach to Exemption 6 claims, without any need to resort to ad hoc balancing. See National Ass’n of Retired Fed. Employees, 879 F.2d 873, 879 (D.C.Cir.1989), quoting Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1483, 103 L.Ed.2d 774 (1989) (“categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction”). Thus, a claim to exemption from disclosure based upon a fear that the author’s “syntactic felicity,” or lack thereof, would reveal “information about the depth and breadth of his or her education,” dis. op. at 1015, or upon a fear that the taped voice inflections of a person delivering a speech would reveal that person’s emotional state, would involve such trivial privacy interests that the claim simply could not rise to the level of “a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Hence, the objection made by the dissenters is as unwarranted as their own highly imaginative approach is unworkable.

Numerous government files may contain the type of non-lexical information we have identified as meeting the similar files requirement, but that cannot justify our raising the Exemption 6 threshold above the level set by the Supreme Court. If the information “applies to an individual,” then it might harm that individual; for that reason it crosses the threshold, and the privacy interest of the person to whom it applies must be considered and balanced against the public interest in releasing it.

III. Conclusion

Whether disclosure of the Challenger tape in this case would constitute a clearly unwarranted invasion of privacy, we do not know and cannot discern on the record before us. The families of the astronauts attempted to explain in camera the basis for their privacy claims, but the district court rejected their affidavits because it truncated at the threshold its analysis of the Exemption 6 claim.

We hold that the voices of the astronauts, and whatever those voices may reveal of their thoughts and feelings at the very moment of their deaths, constitute “information which applies to ... particular individuals].” Therefore, we remand this case for the district court to determine whether any invasion of the astronauts’ (or their families’) privacy that the disclosure of the Challenger tape would cause is or is not “clearly unwarranted” when compared to the “citizens’ right to be informed about what their government is up to.” Reporters Committee, 109 S.Ct. at 1481.

1 . Our dissenting colleagues accept our premise that "voice inflections and other 'non-lexical' information can constitute personal information," dis. op. at 1010, but resist the inevitable conclusion: if that information "applies to a particular individual," then it not only can, but does, constitute personal information sufficient to satisfy the Exemption 6 threshold as the Supreme Court has interpreted it.

2 . The dissent places a puzzling degree of emphasis upon NASA’s so-called "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.”

Dis. op. at 1010, 1017 (emphasis deleted) (citing Defendant’s Statement of Genuine Issues, New York Times Co. v. NASA, 679 F.Supp. 33 (D.D.C.1987) (Civ. No. 86-2860) ¶ 1 (citing Plaintiff’s Motion for Summary Judgment, id., ¶ 6)); see also dis. op. at 1010.

The quoted passage actually appeared in the statement of undisputed facts that the Times submitted in support of its motion for summary judgment, and that NASA did not explicitly contradict. But the quoted language is at best ambiguous: it could mean either that "the words spoken” on the tape do not contain information about the personal lives of the Challenger astronauts, or that the entire tape, presumably including the sounds and voice inflections of the astronauts, does not contain any personal information. In any event, NASA made its position quite clear before the district court, and we cannot take seriously the suggestion, made for the first time in today’s dissenting opinion, that NASA’s failure explicitly to contradict the Times’s ambiguous statement is the concession-by-negative-pregnant that the dissenters represent it to be. The Times did not treat it as such; and Judge Robinson’s opinion for the panel, in which Judge Edwards joined, did not depend upon the supposed concession. 852 F.2d at 604-05.

3 . The dissent's complete departure from any statutory mooring can be seen in its apparent rejection, at the threshold, of a claim of authorial privacy with respect to medical files. Under the dissent’s approach, a medical file would not be a personnel, medical, or similar file if the privacy interest asserted was that of the doctor or nurse who had authored it. See dis. op. at 1016.

4 . To be sure, many critical analyses by ”[l]in-guists, literary theorists, philosophers, legal theorists, and other scholars” may support Oscar Wilde’s conclusion that "every portrait that is painted with feeling" reveals more of the painter than of his subject. See dis. op. at 1015 & n. 6. If government files were works of art, such observations might be relevant to them as well. But they are not; and anyone who has had to read a significant number of government files cannot seriously apply to them the teachings of literary criticism.

A government audio or video tape is no more a work of art than is the written text in a government file. Although a recording captures more information about a speaker than does a transcript of the speaker's words, the added information could rarely implicate the speaker’s privacy — presumably not at all where the taped event was itself public.