A major privacy ruling that expansively construed the personal privacy exemptions in the Freedom of Information Act (FOIA). The Reporters Committee decision introduced into FOIA law the concept of “practical obscurity”—the notion that personal information found in criminal court records can be so difficult to locate and access that the law should recognize an individual's privacy interest in not having the collections of those details publicly disclosed.

The decision is also significant for its narrow interpretation of the public interest that may be taken into account in deciding whether the disclosure of private facts about an individual is warranted under FOIA. Together with the Court's later ruling in National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), the holding in Reporters Committee affords enormous protection to personal information in government files by requiring anyone seeking records under FOIA that contain personal information to demonstrate affirmatively that disclosing those records will provide the public with significant information about government actions.

As amended in 1974, following the Watergate scandal and at a time of great public dissatisfaction with government secrecy surrounding the Vietnam War, FOIA declares that all records held by federal government agencies must be disclosed to the public upon request, unless they fall into one of nine categories of information that Congress specifically chose to exempt from the disclosure mandate. Two of the FOIA exemptions deal with private information about individuals contained in government files. One exemption allows an agency to withhold information in “personnel and medical files and similar files” if disclosure “would constitute a clearly unwarranted invasion of personal privacy;” the other more broadly allows law enforcement records to be withheld if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” 5 USC 552(b)(6) & (7)(C) (emphasis added). The meaning of these provisions was squarely at issue in Reporters Committee.

The case arose out of a 1978 FOIA request by CBS reporter Robert Schakne who, with the help of the Reporters Committee, asked the FBI for the rap sheets of four brothers with alleged ties to organized crime. An FBI rap sheet compiles in one place an individual's arrests, acquittals, convictions and sentences. This information has been voluntarily provided to the FBI by local, state, and federal law enforcement agencies since the 1920s. These rap sheets are used by law enforcement agencies to detect and prosecute criminals and are provided to courts and corrections officers for their use in making decisions about sentencing and parole. As a matter of policy, however, the Justice Department had always treated the FBI rap sheets as confidential and allowed access to them only by other government agencies.

Schakne wanted the rap sheets on William, Phillip, Samuel and Charles Medico for an investigative news report he was preparing. The brothers had well-known ties to organized crime and ran a company that allegedly worked with a “corrupt Congressman” to win defense contracts. The FBI initially invoked the personal privacy exemptions and denied the rap sheet requests saying that disclosure would constitute an unwarranted invasion of privacy. After three of the brothers had died, however, the FBI found the privacy interest diminished and released their rap sheets. The Reporters Committee and Schakne then sued to compel disclosure of the rap sheet on the fourth brother, Charles Medico.

In the lawsuit, the Reporters Committee asserted that disclosing the rap sheet could not be an unwarranted invasion of Medico's personal privacy because there was no privacy to protect. All of the arrest and conviction information in his rap sheet came from public court files, and the common law does not generally recognize a privacy interest in the information contained in public files. The Reporters Committee argued, therefore, neither do the FOIA privacy exemptions. It also asserted a public interest in the disclosure of Medico's rap sheet based on his dealings with the corrupt Congressman and that he was a director of a company with Defense Department contracts.

The district court would have none of this. It agreed completely with the Justice Department that disclosing a summary of Medico's long history of run-ins with the law, including arrests that never led to convictions, would invade his privacy in a manner that was “clearly unwarranted.”

Believing that the states generally made summary information like that contained in an FBI rap sheet available to the public, the court of appeals reversed. It recognized that FOIA's requirement for an “unwarranted invasion of personal privacy” required a balancing of Medico's privacy interest against the public interest in disclosure to determine whether an invasion of his privacy was warranted. The court found at best only a minimal privacy interest in information publicly available elsewhere, and it concluded that FOIA's privacy exemptions therefore did not apply. In the process, the court also bemoaned FOIA's failure to provide courts with any standard for deciding when an invasion of privacy should be considered “unwarranted.” Was it the general public's interest in the information that should be considered, and how is that to be weighed against a person's interest in keeping information private?

The Justice Department promptly asked for reconsideration, pointing out that the premise of the court's ruling was incorrect—most states actually refuse to make criminal history information public. In response, the court acknowledged the misunderstanding and sent the case back to the district court to determine if the information about Medico being withheld by the FBI was publicly available at its source.

At this interlocutory stage, the Supreme Court surprisingly agreed to review the court of appeals' decision. This case presented the Court with two issues: Can personal information that is available in public records nevertheless be considered private for purposes of the FOIA privacy exemptions? Moreover, how should a court decide when the disclosure of private information is sufficiently “unwarranted” that it can be withheld under FOIA?

Addressing the first issue, Justice Stevens explained for the unanimous Court that a key purpose for the protection of privacy at common law is to enable individuals to control the disclosure of their personal information so that divulging something about yourself in one context did not strip away all privacy protection in all contexts (489 U.S. at 764). Rather, the scope of protection afforded to personal information typically depends on how widely it has been disseminated and on how much time has passed since its disclosure. Even accepting the as-yet untested allegations of the Reporters Committee that the information on an FBI rap sheet was in a public court record at one time or another, the Court found that Medico still had a meaningful privacy interest arising from the “practical obscurity” of the information. The various arrests, charges, and convictions over many decades that would be reflected on his rap sheet were scattered about in different courthouses and would be very hard to locate and compile. In other words, a personal privacy interest can exist for purposes of FOIA in a collection of information, even if the scattered information itself is available in other public files.

The Court found this expansive reading of the personal privacy protected by the FOIA exemptions to be appropriate in light of other actions Congress had recently taken to prevent the disclosure of personal information held in government computers, such as the Privacy Act of 1974, 5 U.S.C. §552a: “Congress' basic policy concern regarding the implications of computerized data banks for personal privacy is certainly relevant in our consideration of the privacy interest affected by dissemination of rap sheets from the FBI computer,” Justice Stevens explained (489 U.S. at 767). He also found a broad reading of personal privacy in FOIA to be consistent with earlier court decisions such as Whalen v. Roe, 429 U.S. 589 (1977), which addressed the threat to privacy posed by centralized government computers.

Having thus construed the term “personal privacy” very broadly to include a privacy interest in Medico's publicly available rap sheet information, the Court turned to the second issue: What interest in disclosure could justify invading this privacy interest; that is, what makes an invasion of personal privacy warranted under FOIA? Here, the Court narrowly constrained the public interest that can be weighed against personal privacy, making it easier for agencies to withhold personal information under FOIA's privacy exemptions.

Earlier FOIA decisions had held that the issue of whether a disclosure is warranted cannot turn on the purpose for which the information is sought [for example, Department of Air Force v. Rose, 425 U.S. 352, 372 (1976)]. That a CBS reporter was seeking the Medico rap sheet for use in a news program was therefore irrelevant to the public interest analysis—a reporter has no greater right to information under FOIA than any member of the public. Reporters Committee took things a step further, holding that the only public interest that can be balanced against a privacy interest under FOIA is the specific interest in knowing what the government is up to. In other words, a government disclosure of personal information can only be warranted under FOIA if the disclosure will shed significant light on the actions of government. As Justice Stevens put it, the balance of the public interest in disclosure against the personal privacy at stake “must turn on the nature of the requested document and its relationship to the basic purpose of [FOIA] ‘to open agency action to the light of public scrutiny’” (489 U.S. at 772).

Medico's past dealings with a corrupt congressman and his status as an officer of a corporate defense contractor thus did nothing to tip the balance in favor of disclosure. That Medico had been charged or convicted of a crime “would tell us nothing about the character of the congressman's behavior,” nor would it “tell us anything about the conduct of the Department of Defense.” Disclosure of Medico's rap sheet was an unwarranted invasion of his personal privacy, the Court held, because its disclosure would not reveal anything about the actions of government (489 U.S. at 774).

Having concluded that Medico's rap sheet could properly be withheld by the FBI, Justice Stevens went one step further still. In the part of the opinion not joined by Justices Brennan and Marshall, he further held that this same analysis would apply to all rap sheets, not just Medico's. The practical obscurity in maintaining the privacy of a rap sheet will always exist, as will the absence of any significant information about government conduct, given the nature of a rap sheet. The Court thus declared rap sheets to be categorically exempt from FOIA disclosure and indicated that this same categorical approach could properly be applied under FOIA for any class of documents where the balance required by the privacy exemptions will characteristically tip in one direction.

Since Reporters Committee was decided in March 1989, the personal privacy exemptions have come to be widely understood to reach almost any record that names an individual or discloses personal identifying information, and the notion that practical obscurity may create a protectable privacy interest has become ingrained in FOIA law.

Further Reading

See also: Federal Freedom of Information Act (FOIA); National Archives and Records Administration v. Favish; Federal Privacy Act of 1974