Robert Frey

Reclaiming the Right to Know: The Case for Considering Derivative Benefits in FOIA’s Personal Privacy Exemptions

The Freedom of Information Act provides the public with a statutory right to access troves of government information with nine limited exemptions. Two of those exemptions—Exemption 6 and Exemption 7(C)—protect the personal privacy of people mentioned within the government’s files, allowing the government to withhold personally identifiable information if disclosure would cause an “unwarranted” invasion of privacy. Under the Supreme Court’s precedent, courts must conduct a balancing test to determine whether disclosure is unwarranted, weighing the privacy interests of the individuals mentioned in the requested documents against the public’s interest in disclosure. The Supreme Court has clarified that disclosure can only serve the public interest if disclosure will reveal something about the government’s actions, thus allowing the public to oversee the government’s performance.

The Supreme Court has acknowledged that it has left a critical aspect of the balancing test undefined, however. It has never explicitly decided whether disclosure must directly and immediately reveal something about the government’s conduct, or whether the public interest can be served derivatively by using the requested information to uncover additional information outside of the requested documents that reveals the government’s actions.

This Note argues that the Supreme Court actually has answered this question and that courts must consider derivative benefits as part of the public interest. The Supreme Court has repeatedly, though tacitly, considered indirect and derivative harms to personal privacy. After identifying the Court’s tacit pattern, this Note argues that the statute’s language and the Court’s own logic require derivative benefits to receive the same treatment as derivative harms. Finally, this Note examines how this problem has been dealt with by the federal circuits and identifies the fault lines along which the circuits are beginning to split.

Introduction

Even the most popular federal agency in the country1 1.Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7].Show More is not without its controversies. When President Trump named Louis DeJoy Postmaster General, Democrats quickly raised objections about his fitness for the office, based on financial conflicts of interest and an alleged history of illegal political contributions.2 2.Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF].Show More In a hearing before a House Oversight subcommittee, for instance, experts testified that DeJoy held investments worth tens of millions of dollars in private contractors working with the Postal Service, and other witnesses testified that as a private businessman DeJoy had pressured his employees to donate to certain political candidates and then illegally reimbursed them through company bonuses.3 3.Id.Show More

Citizens for Responsibility & Ethics in Washington (“CREW”), a nonpartisan nonprofit dedicated to government accountability, 4 4.About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021).Show More decided to investigate DeJoy’s conflicts of interest.5 5.See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH].Show More CREW filed a request with the Postal Service under the Freedom of Information Act (“FOIA”), seeking both the agency’s records regarding financial interests from which DeJoy was obligated to divest and records of any communications between DeJoy and the USPS regarding certain stock holdings of his.6 6.Id.Show More

The Postal Service denied the request because it determined that disclosure would not be in the public interest.7 7.Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request.Show More DeJoy, the agency explained, had a personal privacy interest in his financial transactions, bringing the requested records within the scope of FOIA’s Exemption 6. Furthermore, the denial said, CREW “did not provide any information about how release of this record would contribute to the public’s understanding of the operations or activities of the Postal Service.”8 8.Brewster-Johnson, supra note 7.Show More CREW has since filed suit to compel USPS to disclose the records.9 9.See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3].Show More

The Postal Service’s explanation defies common sense. How can the public not have an interest in the head of a federal agency’s potential conflicts of interest? Why did CREW have to justify its request with any public interest, much less one that would “contribute to the public’s understanding of the operations” of the Postal Service? And how can CREW show such an interest in order to justify a request? Those are the questions this Note seeks to answer.

The Freedom of Information Act grants the public a judicially enforceable right to access information gathered and stored by the executive branch of the federal government, with nine limited exceptions.10 10.5 U.S.C. § 552(b)(1)–(9).Show More Two of those exceptions—Exemption 6 and Exemption 7(C)—revolve around personal privacy and permit the government to withhold personally identifiable information from certain types of records if disclosure of those records would constitute “an unwarranted invasion of personal privacy.”11 11.Id. § 552(b)(6), (b)(7)(C).Show More The Supreme Court has found that this requires courts to determine whether to disclose or withhold records based on a balancing test between the public interest in disclosure and the privacy interests of the individuals identified in the records.12 12.See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994).Show More

However, in practice, the Supreme Court’s balancing test is weighted against disclosure. The Supreme Court has gradually expanded the scope of the privacy interests protected by the personal privacy exemptions while narrowing what weighs in favor of the public interest. Under the Supreme Court’s current interpretation, often called the “core purpose doctrine,” there is no public interest in disclosure unless disclosure would shed light on the government’s conduct and activities.13 13.U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989).Show More This narrow conception of the public interest is a fixture of the FOIA landscape, which raises the question of how best to assert a cognizable public interest.14 14.The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts.J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency].Show More

One central ambiguity remains in the balancing test under the core purpose doctrine: must disclosure of the requested information directly shed light on the government’s conduct, or may it shed light indirectly after a series of intervening causal steps? The Supreme Court has acknowledged, but not answered, the question of what it calls “derivative uses.”15 15.U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991).Show More The U.S. Court of Appeals for the Second Circuit has described derivative use as the idea “that the public interest can be read more broadly to include the ability to use redacted information to obtain additional as yet undiscovered information outside the government files.”16 16.Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178).Show More For instance, to return to the CREW example, one argument for disclosure based on derivative benefits would be that, while the requested information about DeJoy would not directly show how the USPS was performing its duties, disclosure would indirectly allow the public to better oversee the USPS by further investigating the relationship between the agency’s actions and the Postmaster General’s own financial interests. The idea of derivative benefits recognizes the reality that the personally identifiable information protected by the privacy exemptions will rarely, by itself and directly, give the public a better understanding of government decision making. Nevertheless, derivative benefits can frequently add to the public’s capacity to monitor government performance when combined with other available information or when used for further investigation to uncover new information.

This Note explores the Supreme Court’s interpretation of the personal privacy exemptions and concludes that courts must consider derivative uses when conducting the balancing test. In fact, there are two types of derivative uses, and both must be considered. The first type, derivative benefits, is when the derivative use of requested information advances the public interest. Conversely, derivative harms occur when someone uses the requested information after its disclosure in a way that further invades the privacy of the individuals identified in the records. These two types of derivative use weigh in favor of disclosure and nondisclosure, respectively.

As this Note demonstrates, the Supreme Court has repeatedly factored in derivative harms as justification for nondisclosure without ever explicitly recognizing that it has done so. At the same time, however, the Court has failed to recognize the corresponding value of derivative benefits, though the caselaw implies that there is an appropriate role for derivative benefits in limited circumstances. Because FOIA embodies a pro-disclosure policy, and because there is no principled reason to consider one type of derivative use without the other, courts must consider derivative benefits, just as they follow the Supreme Court’s lead in considering derivative harms.

This Note makes three main contributions to this field. First, while this is not the first piece to advocate for the consideration of derivative uses, it is the first to do so for a narrow conception of derivative uses that is consistent with current Supreme Court doctrine. Broader versions of derivative use, as others have championed, would unrealistically require either the Court or Congress to overrule the core purpose doctrine. Second, this Note brings existing literature up to date by analyzing the impact of the Supreme Court’s latest disclosure case under the personal privacy exemptions. No other article has touched on this topic in any depth for roughly two decades. Finally, this Note is the first to discuss in any detail the treatment of derivative uses by the lower courts. This is critical to understanding the direction the doctrine is developing and is all the more pressing because this issue has the potential to cause a circuit split.

Part I of this Note provides a brief look at the history of FOIA and explains how the Supreme Court interprets the two personal privacy exemptions. Part II examines United States Department of State v. Ray,17 17.502 U.S. 164 (1991).Show More the one case in which the Supreme Court discussed derivative uses directly, while Part III analyzes the implications of the Court’s caselaw after Ray. Part IV lays out how and why courts should consider derivative benefits, and, finally, Part V analyzes the most important derivative use cases at the circuit level and predicts where the circuits are likely to split in the future.

  1. * J.D., University of Virginia School of Law, 2022. I am grateful to Professor Sarah Stewart Ware, who patiently supervised and guided this Note, and to the members of the Virginia Law Review who so diligently edited and improved it. All errors are mine alone. ↑
  2. Lydia Saad, Postal Service Still Americans’ Favorite Federal Agency, Gallup (May 13, 2019), https://news.gallup.com/poll/257510/postal-service-americans-favorite-federal-agency.aspx [https://perma.cc/UL33-X7N7]. ↑
  3. Alison Durkee, Postmaster General Louis DeJoy Should Resign Over ‘Obvious Financial Conflicts of Interest,’ Experts Testify, Forbes (Sept. 14, 2020), https://www.forbes.com/sites/alisondurkee/2020/09/14/postmaster-general-louis-dejoy-should-resign-over-obvious-financial-conflicts-of-interest-experts-testify/?sh=7acc7503147c [https://perma.cc/D9ZC-X7DF]. ↑
  4. Id. ↑
  5. About CREW, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/ [https://perma.cc/K4YX-W9ZH] (last visited Apr. 14, 2021). ↑
  6. See E-mail from Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., to USPS FOIA Officer, Re: Freedom of Information Act Request (Aug. 11, 2020), https://www.citizensforethics.org/wp-content/uploads/legacy/2020/08/2020.08.11-Louis-DeJoy-USPS-FOIA-final.pdf [https://perma.cc/88VT-BTNH]. ↑
  7. Id. ↑
  8. Nikhel Sus (@NikhelSus), Twitter (Sept. 9, 2020, 12:38 PM), https://twitter.com/NikhelSus/status/1303734508018110464 [https://perma.cc/Q2UD-2MFD]; Letter from Jessica Y. Brewster-Johnson, Senior Ethics Couns., USPS, to Meredith Lerner, Rsch. Assoc., Citizens for Resp. & Ethics in Wash., Re: FOIA Case No. 2020-FPRO-01619 (Sept. 9, 2020) (on file with author). Nikhel Sus serves as CREW’s Senior Counsel over Complaints & Litigation. Our Team, Citizens for Resp. & Ethics in Wash., https://www.citizensforethics.org/about/our-team/ [https://perma.cc/BSH8-KUCN] (last visited Apr. 4, 2021). Many thanks to Nikhel Sus for providing the complete text of the Postal Service’s denial of the FOIA request. ↑
  9. Brewster-Johnson, supra note 7. ↑
  10. See CREW Sues USPS on Louis DeJoy Conflicts, Citizens for Resp. & Ethics in Wash. (Oct. 13, 2020), https://www.citizensforethics.org/legal-action/lawsuits/usps-louis-dejoy-conflicts/ [https://perma.cc/M5AT-85E3]. ↑
  11. 5 U.S.C. § 552(b)(1)–(9). ↑
  12. Id. § 552(b)(6), (b)(7)(C). ↑
  13. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994). ↑
  14. U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773–75 (1989). ↑
  15. The core purpose doctrine has drawn its fair share of critics, but the Supreme Court shows no signs of revising it. See, e.g., Michael Hoefges, Martin E. Halstuk & Bill F. Chamberlin, Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard in Access to Personally-Identifiable Information in Government Records, 12 Wm. & Mary Bill Rts. J. 1, 8–9 (2003); Christopher P. Beall, The Exaltation of Privacy Doctrines Over Public Information Law, 45 Duke L.J. 1249, 1251–52 (1996); Martin E. Halstuk, When Secrecy Trumps Transparency: Why the Open Government Act of 2007 Falls Short, 16 CommLaw Conspectus 427, 428–29 (2008) [hereinafter Halstuk, Secrecy Trumps Transparency]. ↑
  16. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178 (1991). ↑
  17. Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 290 (2d Cir. 2009) (citing Ray, 502 U.S. at 178). ↑
  18. 502 U.S. 164 (1991). ↑
  19. Hoefges et al., supra note 14, at 9–11 (quoting 5 U.S.C. § 552(f)). The “right” to access information gathered and held by the government is purely statutory. The Supreme Court has rejected the idea that citizens have any legally enforceable right under the Constitution to access government information. Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know,” 72 Md. L. Rev. 1, 14 (2012). ↑
  20. See Hoefges et al., supra note 14, at 9 n.42. ↑
  21. John C. Brinkerhoff, Jr., FOIA’s Common Law, 36 Yale J. on Regul. 575, 594 (2019) (quoting 5 U.S.C. § 1002 (repealed 1966)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 434–35. The government used the “properly and directly concerned” requirement in particular to withhold information. Id. at 434. If the requested information did not pertain to the requestor himself, the government denied disclosure. This effectively excluded all third parties such as journalists and attorneys. Id. ↑
  22. Brinkerhoff, supra note 20, at 594. One famous example, which demonstrates how toothless the disclosure requirements of the APA were, involved the government finding good cause to withhold the contents of telephone books. Id. at 594 n.141 (quoting James E. Hakes, Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame L. Rev. 417, 436 (1965)). ↑
  23. See EPA v. Mink, 410 U.S. 73, 79 (1973). ↑
  24. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)). ↑
  25. See Martin E. Halstuk & Charles N. Davis, The Public Interest Be Damned: Lower Court Treatment of the Reporters Committee “Central Purpose” Reformulation, 54 Admin. L. Rev. 983, 991 (2002). ↑
  26. S. Rep. No. 88-1219, at 8 (1964). ↑
  27. Hoefges et al., supra note 14, at 9–10. ↑
  28. Id. Over the ensuing decades, Congress has amended FOIA a number of times in order to generate more disclosure and twice has done so expressly to overrule the Supreme Court. However, these amendments have not significantly dented the advantage that the government enjoys in court. Brinkerhoff, supra note 20, at 610 (citing Laurence Tai, Fast Fixes for FOIA, 52 Harv. J. on Legis. 455, 456–57 (2015)); see also Halstuk, Secrecy Trumps Transparency, supra note 14, at 427–28 (noting that the OPEN Governance Act of 2007, which amended FOIA, improved access to government-held information in a number of ways but still failed to “address systemic obstacles to a transparent government”). ↑
  29. 5 U.S.C. § 552(a)(3)(A)–(B); Hoefges et al., supra note 14, at 10. ↑
  30. 5 U.S.C. § 552(a)(4)(B). ↑
  31. See Brinkerhoff, supra note 20, at 594. Brinkerhoff argues persuasively that a central reason for FOIA’s failure to promote disclosure to the extent Congress intended is its connection to the APA. The judiciary has interpreted FOIA using an approach similar to administrative common law. This approach runs contrary to the statutory text and employs doctrines that empower the executive, leading to a weakening of FOIA’s presumption in favor of disclosure and giving the government a marked advantage in litigation. This Note does not touch on FOIA’s background of administrative law. Rather, it examines one way in which the Supreme Court has unduly narrowed the two personal privacy exemptions. Still, it is worth bearing in mind that there are larger nondisclosure forces at work that apply to all of FOIA and not simply the two exemptions discussed here. ↑
  32. 5 U.S.C. § 552(b)(1)–(9). ↑
  33. Id. § 552(b)(6). ↑
  34. Id. § 552(b)(7)(C). ↑
  35. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 496–97 n.6 (1994) (noting that the differences between the two exemptions are “of little import” because they differ only in “the magnitude of the public interest that is required” to justify disclosure). ↑
  36. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). ↑
  37. 5 U.S.C. § 552(b)(6). ↑
  38. Id. § 552(b)(7)(C). ↑
  39. Id. § 552(b)(6), (b)(7)(C). ↑
  40. See Reps. Comm., 489 U.S. at 756. Congress’ initial draft of Exemption 7(C) contained the same language and therefore offered the same level of privacy protection as Exemption 6, but President Gerald Ford insisted on more stringent protections in return for his support for the bill. Hoefges et al., supra note 14, at 13 n.67 (citing 120 Cong. Rec. 17,033 (1974); H.R. Rep. No. 93-1380, at 4 (1974) (Conf. Rep.)). ↑
  41. See Hoefges et al., supra note 14, at 11–12 (citing H.R. Rep. No. 89-1497, at 11 (1966)). ↑
  42. H.R. Rep. No. 89-1497, at 11 (1966). ↑
  43. See U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 7(C), at 1–2 (2019), https://www.justice.gov/oip/page/file/1206756/download [https://perma.cc/VE85-4NWX] [hereinafter DOJ Guide to Exemption 7(C)]; Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 166 (2004). ↑
  44. S. Rep. No. 89-813, at 9 (1965). ↑
  45. Hoefges et al., supra note 14, at 12–13. ↑
  46. See U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). ↑
  47. See Brinkerhoff, supra note 20, at 579–82. ↑
  48. See Rose, 425 U.S. at 380–81 (creating a balancing test which weighs public interests against personal-privacy interests); U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 776–80 (1989) (defining the scope of public interests and privacy interests). ↑
  49. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982); U.S. Dep’t of Just., Department of Justice Guide to the Freedom of Information Act: Exemption 6, at 4 (2019), https://www.justice.gov/oip/page/file/1207336/download [https://perma.cc/L8BW-S4DL] [hereinafter DOJ Guide to Exemption 6]. ↑
  50. 5 U.S.C. § 552 (b)(6). ↑
  51. Wash. Post, 456 U.S. at 601 (noting that Exemption 6 “surely was not intended to turn upon the label of the file which contains the damaging information”); see also N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1004, 1009–10 (D.C. Cir. 1990) (en banc) (holding that an audio tape of the final moments of the astronauts aboard the Challenger space shuttle qualified as a “similar file” under Exemption 6). ↑
  52. Wash. Post, 456 U.S at 602. ↑
  53. Id. at 600–02 (rejecting the argument that “similar files” only protect intimate information). How to interpret and apply Exemption 6’s threshold requirement had been a point of contention among the lower courts for some time. A number of lower courts had held that records must contain intimate information before they could fall within the scope of “personnel and medical files and similar files.” See Hoefges et al., supra note 14, at 20. ↑
  54. 5 U.S.C. § 552 (b)(7)(C). ↑
  55. See Lauren Bemis, Note, Balancing a Citizen’s Right to Know with the Privacy of an Innocent Family: The Expansion of the Scope of Exemption 7(C) of the Freedom of Information Act Under National Archives & Records Administration v. Favish, 25 J. Nat’l Ass’n Admin. L. Judges 507, 511 (2005); Richard L. Huff & Craig E. Merutka, Freedom of Information Act Access to Personal Information Contained in Government Records: Public Property or Protected Information?, Army L., Jan. 2010, at 2, 5 (noting that the threshold can be met by more than just criminal investigations). ↑
  56. FBI v. Abramson, 456 U.S. 615, 631–32 (1982). ↑
  57. Huff & Merutka, supra note 54, at 5. ↑
  58. See DOJ Guide to Exemption 6, supra note 48, at 2. ↑
  59. 425 U.S. 352, 372 (1976). ↑
  60. See, e.g., Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (establishing that any privacy interest greater than de minimis triggers the balancing test); Fed. Lab. Rels. Auth. v. U.S. Dep’t of Veterans Affs., 958 F.2d 503, 510 (2d Cir. 1992) (“Hence, once a more than de minimis privacy interest is implicated the competing interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA.”); see also DOJ Guide to Exemption 6, supra note 48, at 71–72; DOJ Guide to Exemption 7(C), supra note 42, at 27. ↑
  61. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 505 (1994) (Ginsburg, J., concurring in the judgement). ↑
  62. 489 U.S. 749, 763, 769 (1989). ↑
  63. Id. at 763. ↑
  64. Id. at 775; see also id. at 774 (“FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”). The Supreme Court’s core purpose doctrine is also often called the central purpose test. The two phrases are interchangeable. ↑
  65. See Hoefges et al., supra note 14, at 56–57. ↑
  66. For a few critiques, see Hoefges et al., supra note 14, at 25–26; Beall, supra note 14, at 1258; Halstuk, supra note 14, at 463–68. Reporters Committee was at least partially a response to the flood of FOIA requests by private individuals seeking information only for their own benefit. The core purpose doctrine prevents these kinds of requests. See infra note 170 and accompanying text. ↑
  67. U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 507–08 (Ginsburg, J., concurring in the judgement). ↑
  68. Id. at 502 (withholding disclosure of home addresses); N.Y. Times Co. v. Nat’l Aeronautics & Space Admin., 782 F. Supp. 628, 633 (D.D.C. 1991) (withholding disclosure of recordings of the astronauts aboard the Challenger); World Pub’g Co. v. U.S. Dep’t of Just., 672 F.3d 825, 831–32 (10th Cir. 2012) (withholding “mug shots” of arrestees). Courts also routinely protect more mundane information such as social security numbers, telephone numbers, and medical information. See DOJ Guide to Exemption 6, supra note 48, at 73–75 for a more thorough list. ↑
  69. 502 U.S. 164 (1991). ↑
  70. Id. at 178–79. ↑
  71. Id. at 166. ↑
  72. Id. at 167–69. ↑
  73. Ray v. U.S. Dep’t of Just., 908 F.2d 1549, 1554–55 (11th Cir. 1990). ↑
  74. Id. at 1554. ↑
  75. Id. at 1555–56. ↑
  76. Ray, 502 U.S. at 176–77. ↑
  77. Id. ↑
  78. Id. ↑
  79. See id. at 180–81 (Scalia, J., concurring in part and concurring in the judgement). ↑
  80. Id. at 178–79. ↑
  81. Id. at 178. ↑
  82. Id. at 178–79. ↑
  83. Id. at 178. ↑
  84. Id. at 179. ↑
  85. Id. ↑
  86. Id. ↑
  87. Id. See the discussion of Favish, infra at Section III.C, for the Court’s most recent guidance on what evidence can overcome the presumption of legitimacy. ↑
  88. Id. at 180 (Scalia, J., concurring in part and in judgement) (“The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible.”). ↑
  89. Id. ↑
  90. Id. at 180–81. ↑
  91. Id. ↑
  92. Id.; see also Eric J. Sinrod, Blocking Access to Government Information Under the New Personal Privacy Rule, 24 Seton Hall L. Rev. 214, 226 (1993) (noting the Court’s double standard on the derivative use issue). ↑
  93. Ray, 502 U.S. at 182. ↑
  94. The one exception to this expansion of privacy rights came in the Court’s most recent privacy exemption case, FCC v. AT&T Inc., 562 U.S. 397 (2011). In this decision, the Court held that “personal privacy” as protected by Exemption 7(C) does not extend to corporations. Because the Court found that the exemption did not apply, that case does not impact the derivative use issue. ↑
  95. 510 U.S. 487 (1994). ↑
  96. Id. at 487, 497. ↑
  97. Id. at 490 (quoting 5 U.S.C. § 7114(b)(4)). ↑
  98. Id. at 490–91. ↑
  99. Id. at 491–92. ↑
  100. Id. at 495. ↑
  101. Id. at 497. ↑
  102. Id. ↑
  103. Id. at 502. ↑
  104. See Karl J. Sanders, Note, FOIA v. Federal Sector Labor Law: Which “Public Interest” Prevails? 62 U. Cin. L. Rev. 787, 813–15 (1993) (arguing that the facts of FLRA presented a strong opportunity for considering derivative benefits). ↑
  105. Fed. Lab. Rels. Auth., 510 U.S. at 500 (quoting U.S. Dep’t of Just. v. Reps. Comm., 489 U.S. 749, 763 (1989)). ↑
  106. Id. at 501. ↑
  107. Id. In contrast, the Fifth Circuit had found it hard to see how receiving mail could ever be an unwarranted invasion of privacy. Anyone uninterested in the mail could simply “send it to the circular file.” Fed. Lab. Rels. Auth. v. U.S. Dep’t of Def., 975 F.2d 1105, 1110 (5th Cir. 1992). ↑
  108. Justice Ginsburg, although concurring in the judgement, wrote separately to express her unease about the direction of the Court’s FOIA jurisprudence. Fed. Lab. Rels. Auth., 510 U.S. at 504–09 (Ginsburg, J., concurring in the judgement). She observed that Reporters Committee had “changed the FOIA calculus” by implementing a core purpose doctrine that had no origin in the statutory language. Id. at 505–07. Nevertheless, she concurred because she felt that Reporters Committee was controlling precedent and that the other members of the Court were committed to preserving it. Id. at 509. ↑
  109. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  110. Or. Nat’l Desert Ass’n v. Bibles, 83 F.3d 1168, 1169–71 (9th Cir. 1996), rev’d, 519 U.S. 355 (1997). ↑
  111. Id. at 1171. ↑
  112. Bibles, 519 U.S. at 355–56. ↑
  113. Id. ↑
  114. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 158 (2004). ↑
  115. Id. at 172. While Favish altered the Court’s doctrine in important ways, it left the basic foundation of Reporters Committee intact despite an amicus brief arguing that a recent amendment to FOIA effectively overruled the core purpose doctrine. Brief for Reporters Committee for Freedom of the Press as Amicus Curiae at 24, Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157 (2004) (No. 02-954). When Congress amended FOIA to clarify that it also extended to records in an electronic format, it added that the purpose of the statute was to provide a right to access non-exempt records “for any public or private purpose.” Pub. L. No. 104-231, § 2(a)(1), 110 Stat. 3048 (1996) (emphasis added). Senator Patrick Leahy, who introduced the amendment, wrote in a Senate report that this language was specifically intended to counter the Court’s erroneous core purpose doctrine, but the Court brushed past this without comment in Favish. See S. Rep. No. 104-272, at 26–27 (1996); Halstuk & Davis, Public Interest Be Damned, supra note 24, at 1015–16. ↑
  116. Favish, 541 U.S. at 174–75. ↑
  117. See U.S. Dep’t of Just. Off. of Info. & Priv., Supreme Court Decides to Hear “Survivor Privacy” Case (2003), https://www.justice.gov/archive/oip/foiapost/2003foiapost17.htm [https://perma.cc/48K3-SHTX]. ↑
  118. Favish, 541 U.S. at 161–64. ↑
  119. Id. at 165. ↑
  120. Id. at 165–69. ↑
  121. Id. at 166. ↑
  122. Id. at 166–67. ↑
  123. Id. at 173–75. ↑
  124. Id. at 174. The Department of Justice has found that most plaintiffs fail to meet this heightened evidentiary standard. DOJ Guide to Exemption 6, supra note 48, at 67. However, for one example in which this standard was found to have been met, see Union Leader Corp. v. United States Department of Homeland Security, 749 F.3d 45 (1st Cir. 2014), discussed infra at Section V.D. ↑
  125. Favish, 541 U.S. at 174, 175. The Court’s requirement places requestors in a Catch-22. To be allowed to investigate government misconduct, they must first be able to offer significant evidence of government misconduct. This requirement, while tracking with common sense by refusing to let bare allegations trump concrete privacy interests, has no roots in FOIA’s text. See Halstuk, Secrecy Trumps Transparency, supra note 14, at 468. ↑
  126. Favish, 541 U.S. at 175. ↑
  127. Id. at 172. ↑
  128. Id. ↑
  129. Id. While the Court contextualized its requirement as applying to Exemption 7(C), it is probable that it would interpret Exemption 6 in the same way because of their similarity, which the Court has repeatedly recognized. See Fed. Lab. Rels. Auth., 510 U.S. at 496 n.6 (explaining that the difference between the two exemptions is purely in the magnitude, not kind, of privacy protection provided). ↑
  130. Bemis, supra note 54, at 539–40. ↑
  131. See Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“A FOIA requester need not show in the first instance that disclosure would serve any public purpose.” (emphasis added)). ↑
  132. 5 U.S.C. § 552(a)(4)(B). ↑
  133. U.S. Dep’t of Just., Freedom of Information Act Guide & Privacy Act Overview 432–33, 432 n.47 (Pamela Maida ed., May 2004 ed.) (citing Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989)). ↑
  134. See the discussion of Ray supra Part II for a full analysis of the Scalia-Kennedy concurrence. ↑
  135. See supra notes 122–25 and accompanying text. ↑
  136. U.S. Dep’t of State v. Ray, 502 U.S. 164, 178–79 (1991). ↑
  137. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–75 (2004). ↑
  138. Id. ↑
  139. Id. at 172–73 (“We do not in this single decision attempt to define the reasons that will suffice, or the necessary nexus between the requested information and the asserted public interest that would be advanced by disclosure.”). ↑
  140. See Hoefges et al., supra note 14, at 39. While this was noted pre-Favish, it is still true after that case. ↑
  141. Brinkerhoff, supra note 20, at 577. ↑
  142. See Wash. Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982). ↑
  143. See Lillian R. BeVier, Information About Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 Wm. & Mary Bill Rts. J. 455, 485 (1995) (arguing that the Supreme Court had turned the privacy exemptions into shields for nondisclosure). ↑
  144. Cf. Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a substantial probability that disclosure will cause an interference with personal privacy, it matters not that there may be two or three links in the causal chain.”). ↑
  145. See U.S. Dep’t of State v. Ray, 502 U.S. 164, 181 (1991) (Scalia, J., concurring). ↑
  146. See supra Part III and Section IV.C for a discussion of the Court’s implicit acceptance of derivative benefits in certain circumstances. ↑
  147. Bibles v. Or. Nat’l Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam). ↑
  148. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172–74 (2004). ↑
  149. See, e.g., Hopkins v. U.S. Dep’t of Hous. & Urb. Dev., 929 F.2d 81, 88 (2d Cir. 1991) (dismissing a derivative benefits argument because “[w]ere we to compel disclosure of personal information with so attenuated a relationship to governmental activity, however, we would open the door to disclosure of virtually all personal information, thereby eviscerating the FOIA privacy exemptions”). ↑
  150. See Favish, 541 U.S. at 174. ↑
  151. Id. at 170–72. ↑
  152. See U.S. Dep’t of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 508–09 (1994) (Ginsburg, J., concurring in the judgement). ↑
  153. See Navigator Publ’g v. U.S. Dep’t of Transp., 146 F. Supp. 2d 68, 70–71 (D. Me. 2001) (rejecting an argument based on derivative benefits in part because the court doubted the requestor’s sincerity, believing that the requestor would use the requested information for personal profit rather than to vindicate the public interest). ↑
  154. See, e.g., Hoefges et al., supra note 14, at 60–63 (advocating for an expansive conception of public interest). ↑
  155. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 161 (1989) (Scalia, J., dissenting) (remarking that courts treat the need to narrowly construe FOIA’s exemptions as “a formula to be recited rather than a principle to be followed”); Fed. Lab. Rels. Auth., 510 U.S. at 507 (Ginsburg, J., concurring in the judgement) (“The Reporters Committee ‘core purpose’ limitation is not found in FOIA’s language.”). ↑
  156. Whether this shield should have been created by Congress rather than the Supreme Court is irrelevant to the overall point that the core purpose doctrine has certain benefits as a matter of policy. Early commentators on FOIA often viewed it as a sort of Pandora’s box which had released all number of unforeseen consequences and threatened to inundate government agencies with requests. Reporters Committee was an attempt to put the lid back on the box. See Beall, supra note 14, at 1253–56. ↑
  157. See Hoefges et al., supra note 14, at 10 n.49. ↑
  158. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 170 (2004). ↑
  159. See Manna v. U.S. Dep’t of Just., 51 F.3d 1158, 1165 (3d Cir. 1995). ↑
  160. Other scholars have suggested rebalancing the disclosure scales through an opposite approach: narrowing the relevant privacy interests rather than expanding the conception of the public interest. See Hoefges et al., supra note 14, at 63. Under this approach, the privacy exemptions cannot be triggered merely by the existence of personally identifiable information in the requested documents. Instead, the government can only invoke the privacy exemptions if the requested documents contain personal information that is intimate in nature or inherently private. Id. at 63 & n.435. While such a proposal is outside the scope of this article, there are reasons to believe that the Supreme Court has expanded the protected zone of privacy beyond the statute’s text and purpose. However, this proposal runs into the same difficulty as the calls to overturn the core purpose doctrine—it would require dismantling Reporters Committee, which is highly unlikely. See U.S. Dep’t of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) (indicating that FOIA’s privacy exemptions protect more than what is inherently private). ↑
  161. A number of district courts across the country have also allowed disclosure based on derivative benefits. For a substantial but far from comprehensive list, see DOJ Guide to Exemption 6, supra note 48, at 57–59. ↑
  162. In contrast to the limited caselaw on derivative benefits, consideration of derivative privacy harms is ubiquitous among the circuits, even if courts seldom acknowledge it as such. See, e.g., Prudential Locations LLC v. U.S. Dep’t of Hous. & Urb. Dev., 739 F.3d 424, 426, 431 (9th Cir. 2013) (finding that disclosing the names of those who had alleged a certain business had broken federal law would risk exposing them to retaliation, stigma, and harassment); Forest Guardians v. U.S. FEMA, 410 F.3d 1214, 1216, 1220 (10th Cir. 2005) (finding that privacy interests would be invaded by disclosure of electronic mapping files because lot numbers could be manipulated to reveal home addresses). Only the Fifth Circuit, citing the Ray concurrence approvingly, has expressed doubt over whether derivative harms should be accorded any weight. See Cooper Cameron Corp. v. U.S. Dep’t of Lab., 280 F.3d 539, 554 n.68 (5th Cir. 2002) (noting that the court’s ruling accorded with the Ray concurrence); Sherman v. U.S. Dep’t of the Army, 244 F.3d 357, 365 n.14 (5th Cir. 2001) (citing the Ray concurrence and expressly disclaiming that Court’s holding involved weighing derivative harms). However, the Fifth Circuit has not addressed the issue since the Supreme Court’s decision in Favish, and one of its district courts has more recently found that weighing derivative harms is permitted. See Inclusive Cmtys. Project, Inc. v. U.S. Dep’t of Hous. & Urb. Dev., No. 3:14-cv-3333, 2016 U.S. Dist. LEXIS 123779, at *21–22 (N.D. Tex. Sept. 13, 2016) (choosing to consider derivative privacy harms because the Supreme Court and the D.C. Circuit do so). Because derivative harms are not a serious point of contention among the circuits, the following discussion is limited to derivative benefits. ↑
  163. See, e.g., Beall, supra note 14, at 1259–60 (arguing that FLRA was the death knell for derivative benefits). ↑
  164. ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 15 (D.C. Cir. 2011). ↑
  165. See Cooper Cameron Corp., 280 F.3d at 543. ↑
  166. ACLU, 655 F.3d at 3. ↑
  167. Id. at 3–4. ↑
  168. Id. at 4–5. ↑
  169. Id. at 5. ↑
  170. Id. at 6–12. ↑
  171. Id. at 11–12. But cf. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 53 (1st Cir. 2014) (finding that because the requestor did not intend to directly contact the subjects of the requested documents, the privacy interests at stake were diminished). ↑
  172. ACLU, 655 F.3d at 15. ↑
  173. Id. at 13–14. ↑
  174. Id. at 15. ↑
  175. Id. at 15–16. ↑
  176. See Multi AG Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1226 (D.C. Cir. 2008) (allowing disclosure on a derivative benefits theory); Painting & Drywall Work Pres. Fund v. U.S. Dep’t of Hous. & Urb. Dev., 936 F.2d 1300 (D.C. Cir. 1991) (denying disclosure but finding that the ability of a journalist to use the requested information to further investigate governmental action weighed in favor of the public interest). ↑
  177. Multi AG Media LLC, 515 F.3d at 1224. ↑
  178. Id. at 1231–32. ↑
  179. Id. at 1231. But see McCutchen v. Dep’t of Health & Hum. Serv., 30 F.3d 183, 188 (D.C. Cir. 1994) (observing that the mere desire to oversee how the government is performing its duties does not create a public interest that can outweigh privacy concerns). ↑
  180. See Lepelletier v. FDIC, 164 F.3d 37, 48 (D.C. Cir. 1999); see also Halstuk & Davis, The Public Interest Be Damned, supra note 24, at 1011–13. ↑
  181. Lepelletier, 164 F.3d at 39. ↑
  182. Id. at 47. ↑
  183. Id. at 48. ↑
  184. Id. ↑
  185. Id. The D.C. Circuit also forbade the district court from releasing the depositors’ names in conjunction with the amount owed to them by the government, another sign that it believed the depositors did possess a privacy interest. Id. ↑
  186. See Long v. Off. of Pers. Mgmt., 692 F.3d 185, 198 (2d Cir. 2012); Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 293 (2d Cir. 2009); Hopkins v. U.S. Dep’t of Hous. & Dev., 929 F.2d 81, 88–89 (2d Cir. 1991). ↑
  187. Hopkins, 929 F.2d at 82. ↑
  188. Id. at 88. ↑
  189. Id. ↑
  190. Associated Press, 554 F.3d at 290 (“Although this Court has not addressed the issue of whether a derivative use theory is cognizable under FOIA as a valid way by which to assert that a public interest is furthered, we have indicated that it may not be.”). ↑
  191. Id. at 279–80. ↑
  192. Id. at 290. See also Long v. Off. of Pers. Mgmt., 692 F.3d 185, 194 (2d Cir. 2012) (“The use of personnel files to contact government employees in the hopes of uncovering malfeasance does not serve FOIA’s objectives.”). But see Kuzma v. U.S. Dep’t of Just., 692 F. App’x 30, 35 (2d Cir. 2017) (rejecting a derivative use argument that would merely “provide further avenues for research” into alleged government misconduct). While the Second Circuit’s comments here seem broad enough to go beyond skepticism just related to direct contact, the plaintiff’s derivative benefits argument was so threadbare and the court’s analysis so perfunctory that it is unlikely that this case hints at anything larger. See id. ↑
  193. See Forest Servs. Emps. v. U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) (rejecting a direct contact argument); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 979 (9th Cir. 2009) (same). ↑
  194. See Elec. Frontier Found. v. Off. of the Dir. of Nat’l Intel., 639 F.3d 876, 888–89 (9th Cir. 2010); Rosenfield v. U.S. Dep’t of Just., 57 F.3d 803, 815 (9th Cir. 1995). ↑
  195. See Forest Servs., 524 F.3d at 1027–28. ↑
  196. Id at 1028. ↑
  197. Id. See also Lahr, 569 F.3d at 975 (finding Forest Services to be binding precedent and similarly denying disclosure where the public interest could only be advanced at the expense of privacy via direct contact); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of the Air Force, 26 F.3d 1479, 1485 (9th Cir. 1994) (rejecting a derivative benefits argument predicated on direct contact because the public interest and the privacy interest were “intertwined”). ↑
  198. See Elec. Frontier Found., 639 F.3d at 887–88; see also Rosenfield, 57 F.3d 803, 815 (allowing disclosure of names so that the public could ascertain whether the FBI improperly targeted the leadership of a political movement). ↑
  199. Elec. Frontier Found., 639 F.3d at 880–81. ↑
  200. Id. at 888. ↑
  201. Id. at 887–88. ↑
  202. Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 48 (1st Cir. 2014). ↑
  203. For analysis of the evidentiary standards laid out by the Supreme Court in Favish, see the discussion supra Section III.C. ↑
  204. Union Leader, 749 F.3d at 54. ↑
  205. Id. at 55–56. ↑
  206. Id. at 56. ↑
  207. News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1174 (11th Cir. 2007). The Eleventh Circuit also allowed disclosure based on derivative benefits in Ray before the Supreme Court reversed. Because of that reasoning, at least one district court in the aftermath of Ray found that considering derivative benefits was still permissible until the Eleventh Circuit ruled otherwise, since the Supreme Court had declined to answer that question. See Ray v. U.S. Dep’t of Just., INS, 852 F. Supp. 1558, 1564–65 (S.D. Fla. 1994). ↑
  208. News-Press, 489 F.3d at 1177–78. ↑
  209. Id. at 1178–81. ↑
  210. Id. at 1192–93. The court reached its decision even while knowing that the newspapers would likely need to contact some recipients directly in the course of their investigation. See id. at 1203. This stands in contrast to the decisions of the Ninth Circuit, which generally do not allow disclosure where the derivative benefits entail direct contact with the identifiable subjects of the requested documents. ↑
  211. Id. at 1205. ↑
  212. News-Press v. U.S. Dep’t of Homeland Sec., 2005 U.S. Dist. LEXIS 27492, at *54 (M.D. Fla. Nov. 4, 2005). ↑
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