Reporters Committee for Freedom of the Press v. United States Department of Justice (Two Cases)

831 F.2d 1124, 265 U.S. App. D.C. 365

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 23, 1987
• Docket: 85-6020, 85-6144
• Status: Published

Opinions

ON APPELLEES’ PETITION FOR REHEARING

SILBERMAN, Circuit Judge:

The Department of Justice, supported by an amicus curiae brief filed by SEARCH Group, Inc., has petitioned for rehearing. The government argues, inter alia, that the panel opinion misinterpreted the term “public interest,” as used in the balancing of interests in Exemptions 6 and 7(C) of the Freedom of Information Act (“FOIA”). 5 U.S.C. § 552(b)(6), (7)(C) (1982). The charge is that the panel incorrectly deferred to state or local government determinations that arrest or conviction records should be publicly available. Although we deny the petition for rehearing and reaffirm our prior judgment, we think the government has a valid point and therefore modify our rationale.

I.

Our opinion rejected the district court’s reasoning — that there was little or no public interest in Charles Medico’s rap sheet because the records sought related to minor crimes that occurred long ago. Reporters Comm. for Freedom of the Press v. United States Dep’t of Justice, 816 F.2d 730, 740-42 (D.C.Cir.1987). We concluded that there was no principled statutory basis to support that determination, and we said that the district court should have deferred to state or local determinations that publication of arrest or conviction records were in the public interest. Id. at 740-41. It is argued in the petition for rehearing, however, that such an approach could prove confusing and indeed unworkable since the district court may well encounter conflicting policies on disclosure of arrest records at the state and local level. SEARCH Group, an association of governors’ appointees responsible for the operation of the agencies in their states that collect and maintain criminal history records, has brought to this court’s attention the fact that many states have policies or laws that forbid the release of their own compiled law enforcement information, which includes rap sheets. Based in part on the amicus’ presentation, we now agree that our prior position on this point should be abandoned. We must thus confront two questions that we previously thought appropriate to avoid: How do we determine, as a matter of law, the public interest in disclosure of the information that appellants seek? Does FOIA require the judiciary to make an individual determination of the general public interest in information sought in every case in which a section 6 or 7(C) Exemption is asserted? Id. at 740-42. In answering these questions, we find no standards or guidelines drawn from the statute to inform our determination. Prior cases of this circuit have purported to appraise and value the public interest in specific information sought,¹ but in no case has this court ever articulated standards or a rationale for that process.

The government argues that the statute has a “core” purpose, i.e., “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978). And although the statute reaches beyond the core, the government argues, the courts should treat disclosure that serves core policies more favorably than those disclosures that do not. Over a decade ago, Judge Leventhal, speaking for this court, expressed doubt that the public interest considerations of the Act could be so limited. Ditlow v. Shultz, 517 F.2d 166, 172 & n. 24 (D.C.Cir.1975). It seems to us that he was quite correct. A core purpose does not, in our view, confer judicial power to predict whether particular information the government holds will, upon disclosure, aid an “informed citizenry” as to democratic political choices. Indeed, the government is utterly incapable of explaining to us why the information sought here does not serve the Act’s “core” policy. The government and the panel concurring opinion argue that any convictions involved here are too old to require disclosure, Reporters Comm., 816 F.2d at 745, but from what principle does that observation flow? Surely it cannot be seriously argued that as a matter of law an “informed citizenry” should have available to it arrest records two years old but not five or ten. The subjects of appellants’ requests are alleged to have had dealings with government officiáis; it is surely up to the citizenry, once informed, to determine the relevance of the age of the arrests or convictions.

Even if we could fashion a methodology — and we firmly believe we cannot— to grade the public interest in government-held information in the abstract, we must keep in mind that we are unable to foresee or monitor how the information will eventually be used. Ditlow, 517 F.2d at 171 & n. 18. As we have held, information disclosed to anyone must be disclosed to everyone. Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C.Cir.1986); Ditlow, 517 F.2d at 171 & n. 18. Therefore, a particular requester’s purpose in seeking information, or his proposed use, must be wholly irrelevant to a determination of the public interest since we cannot predict how other persons, including those to whom the requester might give the information, would use it.²

But, it might be asked, if it is impossible to judge the public interest in requested information by its proposed use or its inherent value to an informed citizenry, how then can it be judged at all? We do not think it can. We do not believe that the phrase “public interest,” as used in the balancing in Exemptions 6 and 7(C) of the Act, means anything more or less than the general disclosure policies of the statute.³ Since Congress gave us no standards against which to judge the public interest in disclosure, we do not believe Congress intended the federal judiciary — when applying only Exemptions 6 and 7(C) of the Act — to construct its own hierarchy of the public interest in disclosure of particular information. As we said in our panel opinion, Reporters Comm., 816 F.2d at 741, such an unbounded delegation would raise serious constitutional problems. Cf. Illinois v. United States, 460 U.S. 1001, 1004-06, 103 S.Ct. 1240, 1242-43, 75 L.Ed.2d 472 (1983) (Rehnquist, J., dissenting); Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 646, 100 S.Ct. 2844, 2866, 65 L.Ed.2d 1010 (1980) (plurality opinion). It is t/ue that the Supreme Court (and this court) has held that the federal courts in applying Exemptions 6 and 7(C) must weigh the public interest against the privacy^interest and determine whether disclosure would be an unwarranted invasion of the privacy interest. Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976) (Exemption 6); FBI v. Abramson, 456 U.S. 615, 631, 102 S.Ct. 2054, 2064, 72 L.Ed.2d 376 (1982) (Exemption 7(C)). That of course means that the federal courts must, as we have done in this case, consider whether there is a cognizable privacy interest in the information sought, and then appraise the impairment to that interest that would result from disclosure. For instance, had it been shown to us that disclosure of Medico’s “rap sheet” would cause him particular harm, even though his privacy interest is slight, we might well have reached a different conclusion. But, that we must balance the prospective damage to the privacy interest against the public’s interest does not necessarily mean, and as we conclude, could not mean, that the public interest depends on our own appraisal of the public’s need to know particular information.

II.

The petition for rehearing sharpens another argument the government previously presented: The Justice Department compilation of criminal histories, by putting the public record information in different form, somehow changes the nature of the information sought. Our dissenting colleague now agrees with this argument. Dissent at 1128. But it seems to us this argument is undermined by the government’s contention, with which the dissent also agrees, dissent at 1129-30, that if the Department refers a requester to the original source it provides the requester with essentially the basic information sought — at least the fact that criminal history information exists. The requester can then go to the original source and, if the information is publicly available, easily obtain it.⁴ That, of course, is true, but if such referral is tantamount to disclosure, it is abundantly clear that the form of the government’s compilation of criminal histories is immaterial to the issue of whether disclosure of the facts compiled is required. Cf. Abramson, 456 U.S. at 624, 102 S.Ct. at 2060 (holding that information originally gathered for law enforcement purposes by the FBI did not lose its status under Exemption 7 because it was placed in a different compilation for a political purpose by the White House).

The government and the dissent also claim that our analysis of Charles Medico’s privacy interest implies a delegation to a state or local body for a policy determination. Dissent at 1128. Not so. We direct the district court only to make a factual determination in these kinds of cases: Has a legitimate privacy interest of the subject in his rap sheets faded because they appear on the public record? Reporters Comm., 816 F.2d at 740. That a particular state may treat its own compilations of criminal histories drawn from public record information on file in cities and counties as confidential is irrelevant to that determination. The district court’s task is limited to determining, as a matter of fact, not law, whether, by reason of the actual practices of the jurisdiction that is the original source, the subject’s privacy interest has faded. It may well be, as both the government and dissent suggest, that state statutes that limit disclosure of compilations of criminal histories are eminently sensible and should guide federal policy. But as we said in our panel opinion:

Congress could of course decide the public ought not have access to federal compilations of public criminal records. Congress has considered such a possibility in the past, and might do so again. See, e.g., Dissemination of Criminal Justice Information: Hearings on H.R. 188, H.R. 9788, H.R. 12574, and H.R. 12575 Before the Subcomm. on Civil Rights and Constitutional Rights of the House Comm, on the Judiciary, 93d Cong., 2d Sess. (1973).

Reporters Comm., 816 F.2d at 741 n. 15. The point, of course, is that Congress, unlike a number of states, has chosen not to pass a statute that would establish the federal policy that appellees now urge us to announce without a legislative mandate. We decline their suggestion because we do not believe we have the authority to accept it.

Our conclusion in this case therefore does not change. We reverse and remand to the district court to determine whether the Department of Justice holds criminal record information on Charles Medico that, in accordance with our opinion, must be disclosed.

1 . See Stern v. FBI, 737 F.2d 84, 92 (D.C.Cir. 1984); Baez v. United States Dep’t of Justice, 647 F.2d 1328, 1338-39 (D.C.Cir.1980); Rural Housing Alliance v. United States Dep’t of Agric., 498 F.2d 73, 77-78 (D.C.Cir. 1974); Getman v. NLRB, 450 F.2d 670, 675-76 (D.C.Cir.1971).

2 . The use test, best exemplified by Getman, was rejected in this circuit in Washington Post Co. v. United States Dep't of Health & Human Services, 690 F.2d 252, 258 & n. 17 (D.C.Cir.1982) ("the particular need of the requester is irrelevant under FOIA”); see also FBI v. Abramson, 456 U.S. 615, 631, 102 S.Ct. 2054, 2064, 72 L.Ed.2d 376 (1982) ("Congress did not differentiate between the purposes for which information was requested”).

3 . Judge Leventhal noted that some have thought there to be a difference between the House and Senate Reports preceding passage of the Act as to the meaning of public interest. Ditlow, 517 F.2d at 171 n. 19. The latter has been interpreted to support the notion of a public interest of varying weight. See Getman, 450 F.2d at 675-77. But Judge Leventhal, correctly we think, disapproved of the Getman approach because he realized that it implied a power in the judiciary to restrict disclosure to the requester whose use was approved — a power that Judge Leventhal concluded the judiciary lacks. Ditlow, 517 F.2d at 172 n. 21. It appears to us that Judge Leventhal anticipated FBI v. Abramson, 456 U.S. 615, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982), when he noted that "it is questionable whether Congress intended to create such a broad exception to the 'any person’ provision by adopting the ‘clearly unwarranted’ language of exemption 6.” Ditlow, 517 F.2d at 172 n. 21. In Abramson, the Court held that "Congress did not differentiate between the purposes for which information was requested____ Congress ... did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.” Abramson, 456 U.S. at 631, 102 S.Ct. at 2064 (citation omitted).

4 . If the Department knows that particular information is not publicly available at its source, it obviously would be inappropriate to refer a requester to the source. As we said in the panel opinion, this is an option available to the Department if it does not know one way or the other whether the information is publicly available.