The Washington Post Company v. United States Department of Health and Human Services

690 F.2d 252, 223 U.S. App. D.C. 139, 1982 U.S. App. LEXIS 25362

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 24, 1982
• Docket: 80-2572
• Status: Published

Opinions

WALD, Circuit Judge:

This appeal involves a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, by the Washington Post Company (“Post”) for information concerning possible conflicts of interest of scientific consultants employed by the National Cancer Institute (NCI). The Post seeks to compel disclosure, for each consultant, of (1) a list of his non-federal employment and (2) a list of organizations in which the consultant has financial interests related to his consulting duties. The government claims that the information is exempt from disclosure under Exemptions 4 and 6 to FOIA, 5 U.S.C. § 552(b)(4), (6). The district court, on cross-motions for summary judgment, held that the information was not “commercial or financial information” within the meaning of Exemption 4, but that the information could be withheld under Exemption 6 because disclosure would constitute a “clearly unwarranted invasion of personal privacy.”

The district court relied heavily on the reasoning of Association for Women in Science v. Califano, 566 F.2d 339 (D.C.Cir.1977) (Women in Science), where we held that essentially identical information was privileged from discovery under the Federal Rules of Civil Procedure. We conclude, however, that its reliance on Women in Science was inappropriate because discovery of information under the Federal Rules and disclosure under FOIA Exemption 6 are independent questions involving different issues. We then perform the balancing of disclosure interests against privacy interests mandated by Exemption 6, and find that the conflict-of-interest information involved in this case is not exempt from disclosure. Finally, we hold that the requested list of consultants’ financial interests is “financial” information within the meaning of Exemption 4 and remand for a factual determination of whether release of this information is likely to impair the government’s ability to obtain similar information in the future.

I. Background

NCI is a division of the National Institutes of Health (NIH), which is in turn administered by appellee Department of Health and Human Services (HHS).¹ It annually disburses approximately $1 billion in grants and contracts for cancer research. In deciding which grant proposals to fund, NCI depends on the advice of scientific consultants who serve on various advisory boards and committees. These consultants are respected scientists, familiar with cancer research, who exercise “peer review” over grant applications.²

Pursuant to Executive Order No. 11,222,³ HHS, in order to monitor conflicts of interest that could affect consultants’ judgment of the merits of grant proposals, requires them to complete Form HEW-474. That form, titled “Confidential Statement of Employment and Financial Interests,” requires each consultant to list all other federal and non-federal employment and “all organizations in which you, your spouse, minor child, partner, or an organization with which you are connected have financial interests which relate directly or indirectly to your consultancy duties.”⁴ HHS then reviews this statement to determine whether a conflict exists.⁵ Consultants are told that the information on Form 474 will be used to determine whether their consulting duties will involve a conflict of interest, and are given a limited pledge of confidentiality — the information “will not be disclosed except as the Chairman of the Civil Service Commission or the head of the principal operating component or designee may determine for good cause shown.”⁶

On February 14, 1980, the Post requested copies of the statements of employment and financial interests filed by members (except ex officio members) of NCI’s advisory boards and committees. HHS refused the request, relying on FOIA Exemption 6, 5 U.S.C. § 552(b)(6), which exempts from disclosure:

personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

The Post appealed the decision to the Assistant Secretary of HHS for Public Health and Surgeon General, who affirmed the refusal to disclose. Having exhausted its administrative remedies, the Post filed suit to compel disclosure on July 8, 1980.

After a status call, the district court ordered the parties to file cross-motions for summary judgment. The government, in its motion for summary judgment, again relied on Exemption 6 and added a claim that the requested data was confidential financial information within the meaning of Exemption 4, 5 U.S.C. § 552(b)(4), which permits withholding of:

trade secrets and commercial or financial information obtained from a person and privileged or confidential.⁷

In support of its motion, the government, which has the burden of justifying nondisclosure, see 5 U.S.C. § 552(a)(4)(B), submitted no evidence except an affidavit by Robert Eaglesome, Director of Personnel Policy for HHS. That affidavit states Mr. Eaglesome’s “professional opinion” that disclosure “would impair the Department’s ability to obtain candid and accurate information in the future” and might deter “significant numbers of persons” from applying for advisory board or committee positions.⁸

The Post argued with respect to Exemption 6 that the public interest in disclosure of conflicts of interest outweighs the consultants’ privacy interests.⁹ With respect to Exemption 4, it argued that a mere list of organizations in which one has financial interests, without dollar amounts, is not “financial” information within the meaning of Exemption 4, and that in any event the government had not made a factual showing that disclosure would impair its ability to obtain this information in the future.¹⁰

The government agreed before decision to release the names of NCI consultants, their federal employment, the results of HHS’s review of Form 474, and the name of the reviewing official.¹¹ Thus, the remaining disputed information was the consultants’ non-federal employment and their list of financial interests related to their consulting duties.

The district court held that Exemption 4 did not apply because it was not designed to protect “personal financial information as distinguished from economic data relating to corporations or other business entities.”¹² With regard to Exemption 6, the district court felt bound by the reasoning of Women in Science, where we held that information contained on Form 474 was privileged from discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure. In Women in Science, for purposes of the confidential report privilege, we balanced the litigants’ need for information against the government’s need to foster gathering of the information and found the government’s need to be greater.¹³ *The district court recognized that under FOIA Exemption 6, a court must instead balance the public interest in disclosure against the privacy interests of individuals. However, it believed that the general public interest in disclosure was weaker than the specific need of the plaintiffs in Women in Science,1¹⁴ and that the consultants’ personal privacy interests were “identical for purposes of practical analysis” to the government’s interest in gathering information.¹⁵ Therefore, the district court found the balance struck in Women in Science to be controlling for Exemption 6 purposes, and held that Form 474 was exempt from disclosure.

In this appeal, the Post argues that Women in Science is not controlling and that the balancing of interests required by Exemption 6 mandates disclosure. The government contests that proposition and also argues that the disputed information is both “financial” and “confidential,” and hence is covered by Exemption 4.

II. Exemption 6

A. The Limited Relevance of Discovery-Rules for Exemption 6

It is well established that information that is exempt from disclosure to the general public under FOIA may nevertheless be subject to discovery.¹⁶ This case involves the converse question: whether information that is privileged against discovery can nonetheless be obtained under FOIA.

As an initial matter, neither the text nor the legislative history of FOIA suggests that the existence of a discovery privilege should control the determination of whether withholding is warranted under Exemption 6. Exemption 6 does not refer explicitly to evidentiary privileges. In contrast, Exemption 4 exempts “commercial or financial information obtained from a party and privileged or confidential.” 5 U.S.C. § 552(b)(4) (emphasis added). Similarly, Exemption 5 permits withholding of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.” Id. § 552(b)(5). That Congress expressly included evidentiary privileges in Exemptions 4 and 5 but not in Exemption 6 suggests that it did not intend privilege doctrine to control withholding of information under Exemption 6.

Moreover, even though Exemption 5 directly implicates discovery doctrine, the Supreme Court has stated that “discovery rules can only be applied under Exemption 5 by way of rough analogies.” EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). In part, this is because FOIA does not “permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant.” Id. And this court recently rejected a claim that an intra-agency report which is privileged from discovery is therefore exempt from disclosure:

The short answer to the [government’s] contention is that the issues in discovery proceedings and the issues in the context of a FOIA action are quite different. That for one reason or another a document may be exempt from discovery does not mean that it will be exempt from a demand under FOIA.

Playboy Enterprises v. Department of Justice, 677 F.2d 931, 936 (D.C.Cir.1982); see Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C.Cir.1980).

Exemption 6, then, requires an independent inquiry into whether withholding is proper. Accord Moore-McCormack Lines v. I. T. O. Corp., 508 F.2d 945 (4th Cir. 1974); cf. Baldrige v. Shapiro, 455 U.S. -, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (treating the availability of FOIA Exemption 3 and the existence of a discovery privilege as separate issues). We must still consider, however, how closely analogous the reasoning in Women in Science regarding the confidential report privilege is to the reasoning required to find a “clearly unwarranted invasion of personal privacy” under Exemption 6.

Although both Exemption 6 and the confidential report privilege involve balancing, there the similarity stops. Under Exemption 6, we must balance the interest of the general public in disclosure against the privacy rights of individuals. Under the confidential report privilege, we must balance the individual litigant’s need for information against the government’s need to obtain the information in the future.

Considering first the interests in disclosure, the particular need of the requester is irrelevant under FOIA,¹⁷ but critical in discovery actions.¹⁸ A related issue in discovery actions which has no counterpart under FOIA is the relevance of the information to the pending litigation. Conversely, the general public interest in certain information, a key factor under FOIA, is irrelevant in discovery.

Furthermore, in FOIA cases “the presumption in favor of disclosure is at its zenith.” Grolier, Inc. v. FTC, 671 F.2d 553, 556 (D.C.Cir.1982) (per curiam) (Exemption 5), cert. granted, 51 U.S.L.W. 3353 (U.S. Nov. 9, 1982). Thus, even if Exemption 6 and the confidential report privilege involved the same interests, the balancing of those interests might come out differently under Exemption 6.

As for the interests supporting nondisclosure, factors that are relevant in discovery actions can be irrelevant under FOIA and vice-versa. A critical factor in our decision in Women in Science was our belief that disclosure might impair the government’s ability to acquire similar information in the future. See 566 F.2d at 346. That factor carries no weight under Exemption 6, which focuses on individual privacy interests. Conversely, the privacy interests of persons who provide information to the government do not directly affect the government’s confidential report privilege but are central to an Exemption 6 analysis. Furthermore, the availability of information from other sources weakens the case for discovery but, if anything, strengthens the case for FOIA disclosure by suggesting that disclosure will not seriously invade personal privacy.¹⁹

In short, privilege against discovery and exemption under Exemption 6 are separate issues and require separate analysis. It may at first blush seem incongruous that information which plaintiffs in Women in Science could not obtain in 1977 despite specific need for it can now be disclosed to the general public under FOIA. However, even putting aside the effects of intervening legislation — notably the Ethics in Government Act of 1978, discussed below— on the rationale of Women in Science, any incongruity is a product of congressional intent as reflected in different statutes with different tests for disclosure. Perhaps the plaintiffs in Women in Science should have pursued the information they desired under FOIA,²⁰ but their failure to do so does not alter the FOIA rights of the Post. We therefore proceed to analyze Exemption 6 independently of our decision in Women in Science.21

B. The Exemption 6 Balancing of Interests

Exemption 6 permits withholding of “personnel and medical files and similar files” whose disclosure would be “a clearly unwarranted invasion of personal privacy.” The analysis proceeds in two stages. First, we must determine whether the information on Form 474 is contained in personnel, medical, or “similar” files. If so, we must determine whether disclosure would constitute “a clearly unwarranted invasion of personal privacy.”

The first stage is fairly minimal and is easily satisfied in this case. All information which “applies to a particular individual” is covered by Exemption 6, regardless of the type of file in which it is contained. United States Department of State v. Washington Post Co., 456 U.S. -, -, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (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. Id. at -, 102 S.Ct. at 1961. Each Form 474 is filled out by a particular consultant and thus meets the threshold criterion for coverage under Exemption 6.²²

In the second stage — determining whether disclosure is clearly unwarranted— we must balance the public interest in disclosure against the privacy interests of the consultants. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). In performing this balance, we must keep in mind Congress’s “dominant objective” to provide full disclosure of agency records. Id. at 361, 96 S.Ct. at 1599; see Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982); S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965) (“S.Rep.”). Congress, however, also created nine “carefully structured” exemptions to FOIA “to protect specific confidentiality and privacy interests. But unless the requested material falls within one of these nine statutory exemptions, FOIA requires that . .. [it] be made available on demand to any member of the general public.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978) (footnote omitted). Moreover, these exemptions are to be “narrowly construed.” Rose, 425 U.S. at 361, 96 S.Ct. at 1599; see Washington Post Co. v. United States Department of State, 685 F.2d 698, 700 (D.C.Cir.1982); S.Rep. at 3 (FOIA establishes a “general philosophy of full disclosure unless information is exempted under clearly delineated statutory language”) (emphasis added).²³

In addition to Congress’s general purpose to make disclosure the dominant practice and withholding the exception, Exemption 6’s requirement that disclosure be “clearly unwarranted” instructs us to “tilt the balance [of disclosure interests against privacy interests] in favor of disclosure.” Ditlow v. Shultz, 517 F.2d 166, 169 (D.C.Cir.1975); Getman v. NLRB, 450 F.2d 670, 674 (D.C.Cir.1971). As the Supreme Court stressed in Rose, 425 U.S. at 378 n.16, 96 S.Ct. at 1607 n.16, Congress’s choice of the “clearly unwarranted” standard was a “considered and significant determination,” made despite repeated objections by government witnesses to the heavy burden it creates. Thus, under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.

1. Privacy Interests

Turning to Form 474, we first consider whether disclosure would create an invasion of privacy at all and, if so, how serious an invasion. Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974).²⁴ We then evaluate the public interest in disclosure. Finally, we balance the competing interests to determine whether the invasion of privacy is clearly unwarranted.

The disputed portions of Form 474 require consultants to list their non-federal employment and any organizations in which the consultant, his spouse, minor children, partners, or organizations with which he is connected have financial interests that relate to his consulting duties. Notably, Form 474 requests only cursory information. For employment, consultants need only list their employer, the “kind of organization (e.g., Manufacturing, research, insurance)” it is, and the title or kind of position they hold.²⁵ For financial interests, they need only list the name and kind of organization, the nature of the interest, and in whose name it is held.²⁶ Form 474 does not require information on either rates of pay or the dollar amount of financial interests.

Considering the employment information first, we believe that disclosure would be only a minimal invasion of privacy. As the Supreme Court recently noted, “employment history ... is not normally regarded as highly personal.” United States Department of State v. Washington Post, 456 U.S. at -, 102 S.Ct. at 1960; see Board of Trade v. Commodity Futures Trading Commission, 627 F.2d 392, 399 (D.C.Cir.1980) (occupations of sources of information “may [raise] some slight privacy interest”). In addition, although its brief discusses the privacy interest in Form 474’s financial information, the government does not even attempt to explain why the information on consultants’ non-federal employment raises privacy concerns.²⁷ Indeed, the government admits that the employment of most of NCI’s consultants is available from the biographical sketches in American Men and Women of Sciences, a widely available publication.²⁸ This omission is especially telling in light of the government’s burden to justify nondisclosure.

The government also fails to demonstrate a substantial privacy interest in the limited financial information contained in Form 474. The government asserts that Form 474 contains “intimate details” of personal finances, but does not explain why it reaches that conclusion.²⁹ The cases it cites recognize in dictum that personal financial information “may” implicate privacy concerns “insofar as it contains ‘embarrassing disclosures’ or involves ‘sufficiently intimate details.’ ” National Parks & Conservation Association v. Kleppe, 547 F.2d 673, 685 (D.C.Cir.1976) (National Parks II) (emphasis added); see Simpson v. Vance, 648 F.2d 10, 14 (D.C.Cir.1980). But even those cases do not say that embarrassing personal financial information is exempt under Exemption 6, only that such information is sufficiently private so that it must be balanced against disclosure interests to determine if the invasion of privacy is clearly unwarranted.³⁰ And they lend us no aid whatsoever as to why Form 474’s list of concerns in which consultants have financial interests is embarrassing or highly private information.

We conclude that release of the list in Form 474 of organizations in which consultants have financial interests, while constituting a greater invasion of privacy than release of the list of their non-federal employment, still does not amount to a serious invasion. It merits emphasis that consultants not only need not disclose dollar amounts, but must disclose only financial interests that relate to their consulting duties. While public knowledge of affiliation with some organizations may, in some circumstances, lead to embarrassment or harm,³¹ we perceive little such danger from disclosure of affiliations related to one’s scientific consulting.

Several pieces of evidence support this view. First, in response to a questionnaire mailed to NIH consultants by the plaintiffs in Women in Science, only 10% of respondents (7/69) stated that they would object to serving or having served on an advisory committee if a “complete list of your professional affiliations and financial holdings such as you provided to NIH” were made public.³² Presumably even fewer would have objected if the questionnaire had not referred to a “complete list of . .. financial holdings,” thus suggesting that all financial interests, including dollar amounts, would be made public. This response strongly suggests that most scientific consultants do not regard the information contained in Form 474 as highly personal.³³

Second, Executive Order 11,222 does not require that consultants’ statements be held confidential — it at most permits the government to promise confidentiality.³⁴ The decisión not to require a promise of confidentiality was apparently deliberate, for the Order does require that the more extensive disclosure statements of certain high-level officials be kept confidential.³⁵ This suggests that the President did not view the limited disclosure required of consultants to be a serious invasion of privacy. Moreover, as we discuss below, most of the confidentiality provisions of the Order were repealed by the Ethics in Government Act of 1978 — suggesting Congress’ view that financial disclosure is not an undue invasion of privacy.

Third, the consultants are given only a limited promise of confidentiality — the information can be disclosed “for good cause.” That vague phrase could mean, for all the consultants know, that conflicts of interest will generally be made public. Yet the government has not suggested that this undefined and potentially broad exception to confidentiality has discouraged scientists from accepting consulting positions.

To be sure, the consultants’ expectations of privacy were heightened by the government’s pledge of confidentiality. Other things being equal, release of information provided under a pledge of confidentiality involves a greater invasion of privacy than release of information provided without such a pledge. On the other hand, to allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA’s disclosure mandate. On balance, we believe that a government pledge of confidentiality, made in good faith and consistently honored, should generally be given weight on the privacy side of the scale in accord with its effect on expectations of privacy. Cf. Ditlow v. Shultz, 517 F.2d 166, 172 (D.C.Cir.1975) (footnote omitted) (“the absence of a governmental assurance of confidentiality . . . would seem to undercut the privacy expectations protected by exemption 6”). However, such a pledge should not be given determinative weight where the public interest in disclosure is high and the privacy interest in the information would otherwise be low. See Ackerly v. Ley, 420 F.2d 1336, 1340 n.3 (D.C.Cir.1969) (“pledge of confidentiality . .. can not, in and of [itself], override the Act”); Robles v. EPA, 484 F.2d 843, 846 (4th Cir. 1973) (similar).³⁶ In this case, we believe that the limited pledge of confidentiality does not substantially increase the privacy expectations of most consultants; certainly not enough to tip the balance in favor of withholding.

2. Disclosure Interests

In contrast to the limited privacy interests, the public has a singularly strong interest in disclosure of consultants’ conflicts of interest. Scientific consultants determine, in large part, who receives roughly $1 billion per year in cancer research funds. While the peer review system provides the government with needed expert advice, it also has undeniable potential for occasional abuse. Unscrupulous consultants could promote the projects of organizations with which they are connected, recommend disapproval of the projects of competitors, or, to curry favor for their own proposals, recommend projects favored by other consultants.

The possibility of such conflicts is more than mere speculation. HHS’s program of in-house review is itself evidence that conflicts of interest are a potential problem. Also, there have, been recent allegations of and investigations into conflicts of interest on the part of NCI peer reviewers. See National Cancer Institute Contract and Procurement Procedures, 1981: Hearing Before the Senate Comm. on Labor and Human Resources, 97th Cong., 1st Sess. (June 2, 1981) (“NCI Hearing”). For example, a 1978 investigation by HEW (the predecessor agency to HHS) into the relationship between NCI and a particular contract grantee, while it found no violation of federal conflict-of-interest standards, noted the “close relationship” between NCI officials and the grantee, and expressed concern that NCI consultants “serve in several roles which . . . are difficult to compartmentalize .. . [and which] create an appearance of a conflict which could affect scientific judgment.” ³⁷ In the view of then HEW Secretary Joseph Califano, the report raised “serious questions concerning the role of consultants . . . who perform services both for the Department and for private entities in related areas.”³⁸

One hopes, of course, that HHS’s in-house review is rigorous enough to catch any abuses. But the purpose of FOIA is to permit the public to decide for itself whether government action is proper. Congress was all too aware of the “[innumerable times” that agencies had withheld information under prior law “only to cover up embarrassing mistakes or irregularities.” S.Rep. at 3. FOIA was designed to prevent such incidents and establish instead “[t]he right of the individual to be able to find out how his government is operating.” H.R. Rep., supra note 23, at 6, 1966 U.S.Code Cong. & Ad. News at 2423.³⁹ In light of that purpose, the public interest in disclosure is not diminished by the possibility or even the probability that HHS is doing its reviewing job right.⁴⁰

Our belief that public disclosure of conflict-of-interest information is vital is strengthened by Congress’ passage of the Ethics in Government Act of 1978.⁴¹ This Act requires all government employees at pay grade GS-16 or above to file a highly detailed financial statement, which is available to the public.⁴² Most NCI consultants, although paid a daily rate equal to GS-18,⁴³ are presumably not covered by the Act because it does not apply to employees who work 60 days or less a year.⁴⁴ Nevertheless, the Act shows Congress’ general belief that public disclosure of conflicts of interest is desirable despite its cost in loss of personal privacy.⁴⁵ Indeed, it is hard to see how disclosure of the limited information on Form 474 can be a clearly unwarranted ■invasion of privacy for a consultant who works just short of 60 days in a year, while regular employees with comparable or in some cases lesser responsibility must make far more extensive disclosure under the Ethics in Government Act.⁴⁶

In sum, when the strong interest in disclosure of potential abuses of official position is balanced against the consultants’ relatively slight privacy interest in the limited information required by Form 474, we have no trouble concluding that disclosure is not “clearly unwarranted.”

III. Exemption 4

Exemption 4 authorizes withholding of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552 (b)(4). Thus, there are two threshold requirements for Exemption 4: the information must be (1) “obtained from a person” and (2) “commercial or financial.”⁴⁷ If these threshold requirements are met, we must determine whether the information is “privileged or confidential.”

A. Applicability of Exemption 4 to Per7 sonal Financial Information

We do not see, nor has the government explained, how the list of non-federal employment on Form 474 can be “commercial or financial information.” As for the list of financial interests, it was certainly “obtained from a person,” but the parties dispute whether it is “financial” information within the meaning of Exemption 4. The district court held that it was not because the Exemption “does not cover personal financial information as distinguished from economic data relating to corporations or other business entities.”⁴⁸ We disagree.

The statutory language is not, on its face, restricted to commercial as opposed to personal financial information. The reference to trade secrets and commercial information suggests that business information was Congress’s primary concern. On the other hand, to limit “financial information” to “commercial financial information” would all but read “and financial” out of the statute. On balance, we believe that the plain language of Exemption 4 covers all financial information, despite the apparent commercial focus of the Exemption.

The legislative history also suggests that Exemption 4 covers personal financial information. The House and Senate reports are silent on the meaning of “commercial or financial”; apparently because they refer to an earlier version of the statute that covered all privileged or confidential information. See Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 789-90 (1967); Board of Trade, 627 F.2d at 403 nn.76-77. But the Senate, at least, expressly contemplated that personal information would be covered by Exemption 4. The Senate Judiciary Committee altered an earlier draft covering information “obtained from the public” to read “obtained from any person,” and explained the change as follows:

It was pointed out in statements to the committee that agencies may obtain information of a highly personal and individual nature. To better convey this idea the substitute language is provided.

S.Rep. at 2 (emphasis added).

Our cases are in accord. In Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 78 (D.C.Cir.1974), we held:

While it is true that exemption 4 is primarily a trade secrets exemption, it also protects individuals from disclosure of financial information which is privileged or confidential.

Subsequent Exemption 4 cases have not undercut this holding. The district court relied on National Parks II, 547 F.2d at 685, where we questioned in dictum whether “personal privacy rights [are] a relevant concern under the fourth exemption.” But in that case, all parties agreed that the information was “financial.” Id. at 677. At issue was whether personal privacy rights were a factor in deciding whether the admittedly financial information was also “confidential.” Thus, the district court’s reliance on National Parks II was misplaced.

It remains to consider whether a list of organizations in which one has financial interests, without dollar amounts, is “financial” information. Lacking guidance in the legislative history, we must give the term “financial” its “ordinary meaning[].” Board of Trade, 627 F.2d at 403 (footnote omitted). In our view, the list of organizations required by Form 474 is within the common understanding of the term “financial.” Indeed, we cannot think of any description of that information that would not use the word “financial” or a synonym.

B. The Meaning of “Confidential” Under Exemption 4

The remaining issue is whether the list of financial interests is “privileged or confidential.” The government has not asserted that Form 474 is “privileged” within the meaning of Exemption 4.⁴⁹ We are puzzled as to why not, given the government’s general reliance on Women in Science, where we held that Form 474 was protected from discovery by the confidential report privilege. Be that as it may, we need only decide whether the list of financial interests is “confidential.”

1. The Limited Relevance of Discovery-Rules

As with Exemption 6, we must first consider the relevance of our decision in Women in Science finding Form 474 to be privileged against discovery. Our analysis in Part II.A of the relevance of discovery rules to Exemption 6. applies in large part to the confidentiality aspect of Exemption 4 as well.

Once again, the existence of a discovery privilege does not preclude the courts from making an independent decision on whether withholding is permitted by FOIA. Rather, the question is whether the reasoning of Women in Science is so closely analogous to Exemption 4 reasoning as to be controlling as a practical matter. The answer is certainly no. First, the confidential report privilege at issue in Women in Science required a balancing of litigants’ need for information against government interests served by confidentiality. In contrast, Exemption 4 contemplates an objective, largely non -balancing analysis of whether information is confidential. Also, to the extent that Exemption 4 requires balancing, the interests favoring disclosure — as under Exemption 6 — are different for discovery and FOIA. In this case, because of the particular privilege involved in Women in Science, the interests favoring nondisclosure admittedly overlap to a degree. However, this need not be true for other privileges, and even in this case, the partial overlap does not make Women in Science controlling.

We also caution, in case the issue is raised on remand, against an automatic assumption that because Form 474 was held to be privileged under Rule 26(b)(1), it is also privileged under Exemption 4. Neither this nor any other circuit, to our knowledge, has considered the meaning of “privileged” under Exemption 4.⁵⁰ But under Exemption 5, which also refers explicitly to evidentiary privileges, the Supreme Court has stated that “the discovery rules can only be applied ... by way of rough analogies.” EPA v. Mink, 410 U.S. at 86, 93 S.Ct. at 835. Moreover, in Federal Open Market Committee v. Merrill, 443 U.S. 340, 354, 99 S.Ct. 2800, 2809, 61 L.Ed.2d 587 (1979), the Court questioned whether “Exemption 5 was intended to incorporate every privilege known to civil discovery.” It proceeded to consider at length, in light of the legislative history and purposes of FOIA, whether or not to recognize the confidential commercial information privilege under Exemption 5. Id. at 355-60, 99 S.Ct. at 2809-12.

We expect, under Exemption 4 as under Exemption 5, that discovery rules will provide only rough analogies, and that a particular privilege should be incorporated only after careful consideration of the language and legislative history of Exemption 4, its relationship to other exemptions, and the general disclosure mandate of FOIA. We express no view on the outcome of that analysis for the confidential report privilege relied on in Women in Science.

2. The Test for Confidentiality

Under the standard test in this circuit, commercial or financial information is “confidential” under Exemption 4 if disclosure is likely “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (National Parks I) (footnote omitted).⁵¹ The test is an objective one and the government’s promise of confidentiality is not dispositive. Id. at 766.

In this case, the government concedes that disclosure will not cause competitive harm,⁵² and the conflict of interest information is sufficiently important to be “necessary.” Thus the only issue is whether disclosure is likely to impair the government’s ability to obtain similar information in the future.

As an initial matter, it might be thought that since consultants must complete Form 474, the government’s ability to obtain information cannot be impaired. National Parks I supports this view. We stated:

Since the concessioners are required to provide this financial information to the government, there is presumably no danger that public disclosure will impair the ability of the government to obtain this information in the future.

Id. at 770 (emphasis in original). In contrast, in Women in Science, we noted that:

“[TJhose who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests.”

566 F.2d at 346 (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974)).⁵³ •

In our view, whether disclosure is mandatory is certainly a factor in deciding whether the government’s access to information is likely to be impaired. If the government can enforce the disclosure obligation, and if the resultant disclosure is likely to be accurate, that may be sufficient to prevent any impairment. In this case, the government can readily enforce the disclosure duty. But, if only because Form 474 leaves room for interpretation of which financial interests “relate directly or indirectly to your consultancy duties,” we cannot dismiss the possibility that part-time consultants may construe Form 474’s disclosure requirement narrowly and thus may not disclose all possible conflicts of interest. Thus, despite the compulsory nature of the disclosure, we believe the possibility of impairment merits further analysis.⁵⁴

Turning finally to the likelihood of impairment, the government relies primarily on our statement in Women in Science, 566 F.2d at 346, that disclosure of the information on Form 474 “very likely would impair the Government’s ability to acquire this information in the future.” We, on the other hand, do not believe that this conclusion, drawn in the context of another case and based on the record in that case, is dispositive or even very helpful. In Women in Science, the district court, in the course of a one-page order, made an unexplained factual determination that disclosure “would impair the government’s ability to acquire this information in the future,”⁵⁵ and we affirmed that finding on appeal. But what was true then need not be true today. In particular, a decision today on impairment must take into account Congress’ view, in passing the Ethics in Government Act of 1978, that the benefits of public disclosure of the finances of highly placed government officials outweigh the costs in invasion of privacy, deterring people from accepting government jobs, and possible inaccurate disclosure.⁵⁶

Even more important, in Women in Science, neither we nor the district court stated the extent to which the government’s ability to obtain information would be impaired. A minor impairment cannot overcome the disclosure mandate of FOIA. Rather, the question must be whether the impairment is significant enough to justify withholding the information. Cf. Pacific Architects & Engineers Inc. v. Renegotiation Board, 505 F.2d 383, 385 (D.C.Cir.1974), where we remanded an Exemption 4 claim for a detailed factual inquiry into, among other things, “the extent to which disclosure ... will impair the government’s ability to obtain necessary information of this type in the future.”

This inquiry necessarily involves a rough balancing of the extent of impairment and the importance of the information against the public interest in disclosure. We do not decide today the details of the balancing process.

Apart from relying on the finding of impairment in Women in Science, the government produced no evidence except a eonclusory affidavit by the HHS director of personnel policy. Thus, the government has not yet established its Exemption 4 claim. On the other hand, we cannot say that it will be unable to do so. The district court, of course, made no finding on the extent or even the fact of impairment. We therefore remand to give the government an opportunity to provide the detailed factual justification for withholding under Exemption 4 required by Pacific Architects & Engineers.

IV. Conclusion

Release of the information on Form 474 will not constitute a clearly unwarranted invasion of personal privacy under Exemption 6. Whether the list of financial interests is confidential under Exemption 4 is a matter for factual determination on remand. The decision of the district court is reversed as to Exemption 6 and reversed and remanded as to Exemption 4.

1 . See 42 U.S.C. § 281.

2 . See id. § 286(a). For a more detailed review of NCI procedures, see Grassetti v. Weinberger, 408 F.Supp. 142, 147-49 (N.D.Cal.1976).

3 . 3 C.F.R. 306 (1964-1965 Compilation), reprinted in 18 U.S.C. § 201 app. at 1025-27 (1976), superseded in part by Ethics in Government Act of 1978, Pub.L.No.95-521, 92 Stat. 1824 (1978) (codified in relevant part at 5 U.S.C. app. §§ 201-405). The provisions of this Executive Order relating to NCI consultants are implemented in 5 C.F.R. §§ 735.-401 — .412 (1982) and in 45 C.F.R. §§ 73.735-902 to -1007 (1981).

4 . Form HEW-474 (rev. 3/77), pt. 2, reprinted in Appellant’s Appendix (“A.A.”) at 21-22. Since this litigation began, this form has been slightly revised. It now refers to the Director of the Office of Personnel Management rather than the Chairman of the Civil Service Commission. Also, it must be completed only by consultants who are not required to file public financial disclosure reports under the Ethics in Government Act of 1978. Form HHS-474 (rev. 1/82), pt. 2.

5 . Form HEW-474, pt. 4, A.A. at 22.

6 . Id. pt. 2, A.A. at 21, provides in pertinent part:

“Information to Appointee: Completion of this form is required for all experts and consultants who work 130 days or less a year .... The information you disclose will be used to determine whether a conflict exists between your employment and financial interests and the performance of your services for the Government. The information will be held in confidence and will not be disclosed except as the Chairman of the Civil Service Commission or the head of the principal operating component or designee may determine for good cause shown.”

7 . In the district court, the government also relied on Exemption 3, 5 U.S.C. § 552(b)(3), which exempts information “specifically exempted from disclosure by statute.” However, the government does not appeal from the district court’s holding that an Executive Order is not a “statute” within the meaning of Exemption 3. Washington Post Co. v. United States Dep’t of Health & Human Resources, No. 80-1681, mem. op. at 1 n.2 (D.D.C. Dec. 4, 1980) (“mem. op.”), A.A. at 33, 33 n.2.

8 . Affidavit of Robert Eaglesome ¶ 7 (Oct. 3, 1980), A.A. at 24, 26.

9 . Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment at 6-9, A.A. at 11, 16-19. The Post also argued that Form 474 does not contain the type of intimate personal material that constitutes “similar” files under Exemption 6. The narrow interpretation of “similar” files on which the Post relied was rejected in the recent Supreme Court decision in United States Dep’t of State v. Washington Post Co., 456 U.S. -, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). See note 22 infra and accompanying text.

10 . Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment and Supporting Memorandum at 6-8.

11 . Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for Summary Judgment at 6-7.

12 . Mem. op. at 2 n.2, A.A. at 34 n.2.

13 . See 566 F.2d at 346.

14 . Mem. op. at 4, A.A. at 36.

15 . Id. at 4 n.9, A.A. at 36 n.9.

16 . See Baldrige v. Shapiro, 455 U.S. 345, 360 n. 15, 102 S.Ct. 1103, 1112 n. 15, 71 L.Ed.2d 199 (1982); Women in Science, 566 F.2d at 342-43; Toran, Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo.Wash.L.Rev. 843, 848-54 (1981).

17 . NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1513 n.10, 44 L.Ed.2d 29 (1975) (“Sears’ rights under [FOIA] are neither increased nor decreased by reason of the fact that it claims an interest . .. greater than that shared by the average member of the public.”); EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973) (FOIA does not “permit inquiry into particularized needs of the individual seeking the information”).

Sears and Mink were Exemption 5 cases; thus their strong language is technically dictum for Exemption 6. And in fact our early Exemption 6 cases contemplated inquiry — “unique for exemption 6” — into the specific need of the person requesting the information. Rural Housing Alliance v. United States Dep’t of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974); see Getman v. NLRB, 450 F.2d 670, 677 n.24 (D.C.Cir.1971). More recently, however, we questioned whether a special rule for Exemption 6 was consistent with FOIA’s broad purpose to enable “any person” to obtain information. Ditlow v. Shultz, 517 F.2d 166, 171 n.21 (D.C.Cir.1975). Until advised otherwise by the Supreme Court, we think it appropriate to accept Sears and Mink at face value, and thus not to inquire into the particular need of the requester. Accord Kurzon v. Department of Health & Human Servs., 649 F.2d 65, 68 (1st Cir. 1981). See generally Kronman, The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Stud. 727, 743 n.60 (1980).

18 . See, e.g., EPA v. Mink, 410 U.S. at 86, 93 S.Ct. at 835; Women in Science, 566 F.2d at 346; Toran, supra note 16, at 854.

19 . See United States Dep’t of State v. Washington Post Co., 456 U.S. -, - n.5, 102 S.Ct. 1957, 1962 n.5, 72 L.Ed.2d 358 (1982) (“public nature of information may be a reason to conclude . .. that the release of such information would not constitute a ‘clearly unwarranted invasion of personal privacy’ ”).

20 . In Women in Science, we emphasized that plaintiffs sought disclosure of the information reported in Form 474 only through discovery and “not through an FOIA request.” 566 F.2d at 342 (emphasis in original).

21 . The dissent is concerned that our holding will encourage litigants to use FOIA as a substitute for discovery. Post at 280. We expect, to the contrary, that information available under FOIA will almost always be available through discovery as well. See Toran, supra note 16, at 855 (“As a general rule, the discovery scheme provided by the [Federal] Rules is generous and needs no augmentation by the FOIA.”). If abuse of FOIA is or becomes a problem, the appropriate recourse is an amendment to FOIA. Indeed, the Justice Department, recognizing that “[u]nder present law there is no statutory prohibition to the use of FOIA as a discovery tool,” recently proposed an amendment to prohibit litigants from using FOIA as a discovery device. U. S. Department of Justice, Office of Information Law and Policy, FOIA Update 10 (Dec. 1981).

22 . Prior to being reversed in United States Department of State v. Washington Post, this court had construed “similar” files under Exemption 6 to apply only to agency records that contained information as highly personal or intimate in nature as that contained in personnel or medical records. E.g., Washington Post Co. v. United States Dep’t of State, 647 F.2d 197, 198-99 (D.C.Cir.1981), rev’d, 456 U.S. -, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); Simpson v. Vance, 648 F.2d 10, 13 (D.C.Cir.1980); Board of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392 (D.C.Cir.1980).

23 . The dissent incorporates into its balancing a broad-ranging inquiry into, among other things, the “public harm that might result from disclosure,” principally the risk that disclosure might deter qualified scientists from becoming consultants or might lead consultants not to fully disclose their financial interests. Post at 280-82. The government’s need to obtain conflict of interest information is, as we discuss below, relevant to an Exemption 4 claim. But Exemption 6 on its face is concerned with protecting personal privacy, and no more. Moreover, it would be alien both to the disclosure mandate of FOIA and to Congress’ careful and narrow drafting of the nine exemptions to engage in such a broad inquiry. See Board of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392, 400 (D.C.Cir.1980) (Commission’s concern that disclosure to the Board of Trade of the names of trade sources who had supplied information about the Board to the Commission would reduce its oversight ability is “not germane” to Exemption 6); Robles v. EPA, 484 F.2d 843, 847 (4th Cir. 1973) (refusing to consider the argument that disclosure “would do more harm than good”). The legislative history supports limiting Exemption 6 to privacy interests. See H.R.Rep.No.1497, 89th Cong., 2d Sess. 11 (1966), reprinted in 1966 U.S.Code Cong. & Ad.News, 2418, 2428 (“H.R.Rep.”) (the Exemption “provides a proper balance between the protection of an individual’s right of privacy and the preservation of the public’s right to Government information”); S.Rep. at 9 (similar).

24 . Accord Church of Scientology v. United States Department of the Army, 611 F.2d 738, 746 (9th Cir. 1979); Committee on Masonic Homes v. NLRB, 556 F.2d 214, 220 (3d Cir. 1977).

25 . Form HEW-474 (rev. 3/77), pt. II, A.A. at 21.

26 . Id., A.A. at 22.

27 . See Government’s Brief at 8-9. The government was also silent on this point in the district court. See Memorandum in Support of Defendants’ Motion for Summary Judgment at 3.

28 . Memorandum in Support of Defendants’ Motion for Summary Judgment at 6.

29 . Government’s Brief at 8-9.

30 . National Parks II and Simpson were decided under the prior rule in this circuit requiring a substantial showing to meet the threshold Exemption 6 requirement of “similar” files. See note 22 supra.

No cases, to our knowledge, have held that a list of financial interests without dollar amounts is exempt under Exemption 6. The government cites two district court cases in other circuits which merely held that information on dollar amounts should be disclosed with identifying names deleted. Florida Medical Ass’n v. Department of Health, Educ. & Welfare, 479 F.Supp. 1291, 1305 (M.D.Fla.1979) (Medicare reimbursements to physicians); Sonderegger v. United States Dep’t of the Interior, 424 F.Supp. 847, 856 (D.Idaho 1976) (claims for federal disaster relief). We intimate no view on whether these decisions are correct.

31 . Cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (NAACP membership lists protected from state-ordered disclosure by first amendment).

32 . Joint Appendix at 70-145, Women in Science. The plaintiffs received 76 responses to their questionnaire. Sixty-two people replied “no,” 7 replied “yes,” 4 responded with some variant of “maybe,” and 3 did not respond.

33 . The dissent argues that this conclusion ignores the interests of the minority who would object. Post at 277. It is intrinsic to a balancing analysis, however, that the views of the majority who do not object receive greater weight than the views of the more sensitive minority. Cf. United States Dep’t of State v. Washington Post, 456 U.S. at -, 102 S.Ct. at 1960 (emphasis added) (noting that “place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal”).

34 . It is a close question whether Exec. Order No. 11,222 in fact authorizes a pledge of confidentiality to consultants. Part III of the Order regulates “special Government employees,” including part-time consultants and advisers; in particular, § 306 instructs each agency to require special government employees to disclose “other employment” and “such .. . financial information as the appointing department or agency shall decide is relevant.” Part III does not mention confidentiality. Part IV, § 401(a) requires certain high-level officials to submit a detailed report of financial interests; § 402 also permits the Civil Service Commission to prescribe regulations for “submission of statements of financial interests by such employees ... as the Commission may designate.” Under § 405 of Part IV, financial statements “required by or pursuant to this part shall be held in confidence” and disclosed only for good cause. (Emphasis added.)

Thus, Part III of the Executive Order seems to contemplate limited disclosure by all “special Government employees” to individual agencies, without a promise of confidentiality; while Part IV contemplates more extensive disclosure by high-level regular employees to the Civil Service Commission, with a promise of confidentiality. It may be that consultants, advisers, and other special government employees come within the Civil Service Commission’s authority under § 402 of Part IV to require disclosure from “such employees ... as the Commission may designate.” We so held in Women in Science, although we were “concernfed] about the length to which one must go to reach this conclusion.” 566 F.2d at 345. But while the Order may permit a pledge of confidentiality, it certainly does not require such a pledge.

35 . Exec. Order No. 11,222, §§ 401(a), 405, 3 C.F.R. 306, 308-09 (1964-1965 Compilation), reprinted in 18 U.S.C. § 201 app. at 1026, superseded in part by Ethics in Government Act of 1978, Pub.L.No.95-521, 92 Stat. 1824 (1978) (codified in relevant part at 5 U.S.C. app. §§ 201-405).

36 . In a case where a past pledge of confidentiality tips the balance in favor of withholding and similar information is to be collected in the future, it may be appropriate for a court to warn the government and the public that in the future, such promises of confidentiality will not determine the outcome of a FOIA suit. This would protect the legitimate privacy expectations of persons who had relied on the government’s pledge while still requiring disclosure in the future. Of course, we need not decide in this case when, if ever, such a warning would be appropriate.

37 . Report by Thomas Norris, Inspector General, HEW, at 9 (July 18, 1978), reprinted in NCI Hearing at 158, 166.

38 . Memorandum from Joseph Califano, Secretary of HEW, to Dr. Julius Richmond, Assistant Secretary for Health, at 1 (Sept. 11, 1978), reprinted in NCI Hearing at 151, 151. See also NCI Hearing at 167-68 (discussing another investigation which found a conflict of interest); NIH Research Grants: Hill Flies Blind, Wash. Post, Apr. 13, 1980, at A-2 (noting charges that “reviewers favor friends and acquaintances”); cf. EPA Chief Violated Contract Award Rules, Probe Finds, Wash. Post, Apr. 10, 1982, at A-3 (allegation that EPA allowed a grantee to select his own peer reviewers).

39 . See also, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 2327, 57 L.Ed.2d 159 (1978) (“The basic purpose of FOIA is to ensure an informed citizenry . .. needed to check against corruption and to hold the governors accountable to the governed.”); Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (noting “congressional objective ... to open agency action to the light of public scrutiny”); Kronman, supra note 17, at 733-34 (noting that one principal purpose of FOIA is to monitor official conduct).

40 . The NCI Hearing also raised questions about the rigorousness of in-house review. See, e.g., Memorandum from Dr. Vincent DeVito, Jr., Director of NCI, to Director of NIH, at 1 (June 12, 1980), reprinted in NCI Hearing at 193, 193 (requesting “[a] more flexible interpretation [of the conflict of interest regulations] generally and/or a waiver for the specific case in question”).

41 . Pub.L.No.95-521, 92 Stat. 1824 (1978) (codified in relevant part at 5 U.S.C. app. §§ 201-405).

42 . See 5 U.S.C. app. §§ 201 (persons required to disclose), 202 (information to be disclosed), 205 (public access to reports).

43 . See 42 U.S.C. §§ 286b(a)(8) (setting compensation for members of the National Cancer Advisory Board); 286c(a)(2)(C) (same for President’s Cancer Panel).

44 . 5 U.S.C. app. § 201(h). The record does not disclose whether any consultants work more than 60 days a year. Any who do would appear to be covered by the Ethics in Government Act, subject to the provisions in § 201(i) for waiver of the reporting requirement in individual cases. For consultants who are covered, there can be no warrant for not disclosing the much more limited information contained in Form 474, either under Exemption 6 (because Congress has performed the balancing of disclosure interests and privacy interests and opted for.disclosure) or under Exemption 4 (because the information on Form 474 can no longer be considered “confidential”). Cf. Carson v. United States Dep’t of Justice, 631 F.2d 1008, 1017 n.30 (D.C.Cir.1980) (“[T]he extent to which prior agency disclosure may constitute a waiver of the FOIA exemptions must depend both on the circumstances of prior disclosure and on the particular exemptions claimed.”).

45 . See S.Rep.No.170, 95th Cong., 1st Sess. 165 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 4216, 4376 (“the Committee carefully balanced the privacy interests of the reporting individual and his immediate family with the legitimate public interest in full disclosure”).

46 . One could argue that because Congress, in enacting the Ethics in Government Act, was aware of the existing disclosure requirements in Exec. Order No. 11,222 for consultants and other special government employees, see S.Rep.No.170, supra note 45, at 27, 1978 U.S. Code Cong. & Ad.News at 4243, and chose not to require public disclosure, it viewed such disclosure as unwarranted. But there is little support in the legislative history for this view. The House and Senate reports do not explain why employees who work 60 days or less a year are excluded. The rule may have been adopted for administrative convenience. An earlier House version gave the Director of the Office of Government Ethics discretion to exclude persons “whose employment is temporary or intermittent.” H.R.6954, sec. 101(a), § 7362(b)(1) (1977), reprinted in H.R.Rep.No. 642 (Pt. I), 95th Cong., 1st Sess. 3 (1977).

It does not appear, nor would it be plausible, that Congress made a conscious policy choice that complete public disclosure is desirable for employees who work more than 60 days per year, but no public disclosure is desirable for employees who work 60 days or less, regardless of the employees’ control over public funds or the likelihood that their work will involve conflicts of interest. Thus, we give greater weight to the Act’s primary purpose to require public disclosure of conflicts of interest than to the narrow and unexplained exception for employees who work 60 days or less per year.

47 . We are not concerned here with Exemption 4’s protection of “trade secrets.”

48 . Mem. op. at 2 n.2, A.A. at 34 n.2 (citations omitted).

49 . Government’s Brief at 13 n. 10; see id. at 15 (relying on Women in Science only for the factual proposition that disclosure “would impair the ability of the government to obtain the information contained in the forms in the future”).

50 . A sentence in Gulf & W. Indus. v. United States, 615 F.2d 527, 530 (D.C.Cir.1979) (“Information is privileged or confidential if it is not the type usually released to the public and ... if released ... would cause substantial [competitive] harm .... ”), suggests that the test for privileged and confidential information is the same. But Gulf & Western contains no discussion of “privilege,” apparently does not involve privileged material, and relies on National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C.Cir.1974) (“National Parks I”), where we expressly noted that no claim of privilege was involved. 498 F.2d at 766. In light of the explicit reference in the legislative history to particular privileges, see S.Rep. at 9; H.R.Rep. at 10, we do not believe that “privileged” and “confidential” should be treated as synonymous.

We have found only two district court cases holding information to be privileged under Exemption 4 and both involve the attorney-client privilege, which is explicitly mentioned in the legislative history of Exemption 4. Indian Law Resource Center v. Department of the Interior, 477 F.Supp. 144, 148 (D.D.C.1979) (alternative holding); Miller, Anderson, Nash, Yerke & Wiener v. United States Dep’t of Energy, 499 F.Supp. 767, 771 (D.Or.1980) (alternative holding).

51 . Accord Continental Oil Co. v. FPC, 519 F.2d 31, 35 (5th Cir. 1975); Continental Stock Transfer & Trust Co. v. SEC, 566 F.2d 373, 375 (2d Cir. 1977).

We reserved in National Parks I, have not since decided, and do not decide here the question “whether other governmental interests are embodied in this exemption.” 498 F.2d at 770 n.17. In particular, we do not decide whether it is proper to take into account the government’s need to attract qualified scientists, who might choose not to seek consulting positions in order to avoid public disclosure of Form 474’s financial information. The government did not ask us in this case to consider including that specific interest in the National Parks I test. See Government’s Brief at 13 n.10. But see Affidavit of Robert Eaglesome, supra note 8, ¶ 7 (expressing his view that “[w]ithout assurances of confidentiality . .., significant numbers of persons may not apply for the advisory board or committee positions”).

52 . Government’s Brief at 13 n.10.

53 . See also Green v. Department of Commerce, 468 F.Supp. 691, 693 (D.D.C.1979), app. dismissed, 618 F.2d 836 (D.C.Cir.1980), where the court distinguished National Parks I and noted that it would be “unrealistic” to assume that a statutory obligation to provide the government with information guarantees that information will in fact be provided, at least “when the Government lacks the means to compel strict enforcement.”

54 . Judge Tamm, the author of both National Parks I and Women in Science, concurs in this view. See post at 284. (Tamm, J., dissenting) (“a statutory obligation to provide the information is simply a factor to be considered in determining whether any functional impairment will ensue”).

55 . Association of Women in Science v. Weinberger, No. 74-401, Order (Apr. 24, 1975), aff’d, 566 F.2d 339 (D.C.Cir.1977), reprinted in Joint Appendix at 146, Women in Science.

56 . See notes 41-46 supra and accompanying text.