United States Department of State v. Washington Post Company

PETITIONER:United States Department of State
RESPONDENT:Washington Post Company
LOCATION:Mississippi Chancery Court

DOCKET NO.: 81-535
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 456 US 595 (1982)
ARGUED: Mar 31, 1982
DECIDED: May 17, 1982

ADVOCATES:
David E. Kendall – on behalf of the Respondent
Kenneth Steven Geller – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – March 31, 1982 in United States Department of State v. Washington Post Company

Warren E. Burger:

We will hear arguments next in United States Department of State against the Washington Post.

Mr. Geller, you may proceed whenever you are ready.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice, and may it please the Court:

This is a Freedom of Information Act case here on writ of certiorari to the District of Columbia circuit.

The case involves Exemption 6 of the Act, the personal privacy exemption, which protects against mandatory public disclosure of government documents that meet two criteria.

First, the document must satisfy the so-called threshold test by qualifying as a personnel, medical or similar file.

And second, if the threshold test is satisfied, it must be shown that disclosure of the document would constitute a clearly unwarranted invasion of personal privacy.

This is the so-called balancing test of the exemption.

The question presented here involves the proper interpretation of the phrase 6.

And the facts may be briefly stated.

In September 1979 the Washington Post submitted an FOIA request to the State Department for any documents indicating whether two Iranian officials, Dr. Ali Behzadnia and Dr. Ibrahim Yazdi, were American citizens.

The State Department denied the request on the basis of Exemption 6.

After the Washington Post brought suit to obtain the documents, the State Department submitted affidavits from an Assistant Secretary of State saying that in light of the social and political conditions then existing in Iran, which were briefly described, any confirmation or denial by the United States government that either individual is a United States citizen would be likely to cause a substantial threat of physical harm to the individual.

The affidavits also listed several recent examples of Iranians who had suffered serious harm because their names had been linked to the United States in official documents.

Despite these unrebutted affidavits, the District Court ordered the State Department to comply with the Post’s FOIA request, and the Court of Appeals affirmed.

The D.C. Circuit held that the government had failed to satisfy the threshold requirement of Exemption 6 by showing that the documents requested constituted personnel, medical or similar files.

There’s no question that this was not a personnel or medical file.

The court said that to qualify as a similar file a record must incorporate, and I quote,

“intimate details about an individual, information of the same magnitude that is highly personal or as intimate in nature as that at stake in personnel and medical records. “

The Court of Appeals concluded that the fact of current United States citizenship was simply not an intimate detail.

As a result, it ordered release of the documents without reaching the balancing part of the exemption; that is, without considering at all whether in light of the State Department’s unrebutted evidentiary submission, disclosure of the documents requested by the Washington Post would constitute a clearly unwarranted invasion of the personal privacy of the individuals named in the documents.

If we should agree with you, Mr. Geller, do we sent it back for consideration of that element?

Kenneth Steven Geller:

Yes, yes.

We don’t decide that here.

Kenneth Steven Geller:

That’s correct.

I think it would be helpful to begin discussion of this case by stating first exactly what is and what isn’t involved here, and then by stating exactly what the opposing arguments of counsel are, because I think that respondent’s briefs have attempted to obscure the relevant issue.

As I just said in response to Justice Brennan’s question, the question presented here is not whether the documents requested by the Post can be withheld from the public.

Even if this Court eventually agrees with the government as to the correct meaning of the threshold test of Exemption 6, there would still have to be a remand.

I’m curious as to why you say there would have to be a remand.

Is the balancing test performed on the basis of a lot of facts that would be have to be ascertained at a trial, or is it just the judgment of the court before which the matter is pending that on balance, you know, A wins or B wins?

Kenneth Steven Geller:

Well, the Court of Appeals didn’t reach the balancing test.

We believe that the balancing test does require a weighing of facts.

Now, the facts were submitted to the District Court and both sides moved for summary judgment, and I assume that this Court could reach that question.

It wasn’t reached by the court below, and the respondents have not suggested as an alternative ground for affirmance that the documents must be disclosed under the balancing test.

Neither side has briefed that issue.

Well, what facts does the district court weigh?

Kenneth Steven Geller:

It weighs the public interest in disclosure of the documents against the magnitude of the harm, the magnitude of the invasion of privacy of the particular individual involved or named in the documents.

And that is often a fact specific inquiry.

As I say, here none of the facts were disputed.

The State Department’s affidavits were not rebutted.

The Post moved for summary judgment, as did the government, and the district court granted summary judgment to the Washington Post.

Now, the issue before this Court then is simply whether the government should be forced to release these documents without having an opportunity to show the Court of Appeals that disclosure would constitute a clearly unwarranted invasion of personal privacy.

In other words, the question here is what sort of documents in government files that relate to specific individuals did Congress intend to make eligible for undergoing this balancing process.

Now, it’s the position of the government that the threshold test of the exemption was meant only to screen out agency records that don’t refer to any specific individual.

If an agency document either explicitly or by identifying characteristics does refer to a particular person, then we believe that what Congress clearly had in mind in enacting Exemption 6 was that release of the document would be governed by whether public disclosure would constitute a clearly unwarranted invasion of the person’s privacy.

Now, considerations such as the intimacy of the particular facts involved, or the public nature of the information, or the fact that the information sought might happen to be located in court records somewhere or in books that were published by someone are not irrelevant.

We don’t say that those are irrelevant.

We say that it be taken into account in the balancing part of Exemption 6 rather than smuggled into the similar files test.

Doesn’t it seem rather anomalous, though, that information which is contained in admittedly public records would be categorized as information to which the balancing test might apply and which could be withheld?

Kenneth Steven Geller:

I think it would be anomalous perhaps if information that was available to the public could be withheld under Exemption 6, but that’s not the question here.

The question is simply can we make a specific inquiry into the facts of a particular case under the balancing test, or is any sort of inquiry into the harm to the individual foreclosed totally by the fact that there is a very, very narrow similar files test that is imposed on federal agencies.

The Washington Post, on the other hand, embraces the D.C. Circuit’s view that a court is precluded from engaging in any balancing unless the information sought not only refers to an individual, specific individual, but also is generically highly intimate; in other words, unless it’s the kind of information that virtually everyone would like to keep private about himself.

Now, this case I think illustrates the differences between the two approaches very, very well.

Most Americans, whether they’re naturalized citizens or were born here, would not consider citizenship to be an intimate personal fact.

They’d freely disclose it.

It is not an intimate detail.

But for current residents of Iran, for example, possession of United States citizenship might well be taken to indicate adherence to a particular political philosophical view that’s out of favor at the moment, and disclosure of American citizenship–

Out of favor where, back home?

Kenneth Steven Geller:

–In Iran.

And disclosure of American citizenship as to them might not only be embarrassing but dangerous.

Kenneth Steven Geller:

But the D.C. Circuit’s construction of similar files fails to take that at all into account.

As long as some item is not considered by the Court of Appeals to be an intimate detail, generically intimate, then the courts and the agencies are precluded from engaging in any balance.

Now, perhaps this difference between the Washington Post view of the threshold test and the government’s view can be put into even clearer perspective by the following hypothetical.

Let’s assume that some foreign leader such as Idi Amin or Qadhafi were to announce that he was going to kill every American citizen in his country.

And let’s also assume that that leader, Quadhafi or Idi Amin or the Washington Post, would then make an FOIA request to the State Department listing 500 people who live in that country and asking whether they’re American citizens.

Now, I don’t think any of us would have any trouble concluding that under those circumstances that’s not the sort of information that should be disclosed.

It would not pass the balancing test.

I think any court would conclude under those circumstances it would be a clearly unwarranted invasion of privacy.

What the D.C. Circuit says, however, is that because American citizenship is not generically intimate, then the agency is foreclosed from engaging in the balancing process, and the court is foreclosed from reviewing the agency’s determination in a balancing test.

The evidence has to be disclosed.

Now, where does this intimate details test come from?

It certainly doesn’t come from the language of the statute which doesn’t use the phrase at all.

The threshold test of Exemption 6 talks of personnel, medical or similar files.

The key question then is when is a file similar to a personnel file or a medical file.

And certainly the common denominator is not that the file only contains intimate details about a person.

There’s a great amount of information in government personnel or medical files that wouldn’t be considered generically intimate by anyone: the color of one’s eyes, one’s sex or height.

In fact, citizenship information is almost always found in government personnel files.

Yet the D.C. Circuit has told us in this case that citizenship information is not an intimate detail.

We think instead that what all personnel and medical files almost by definition have in common is that they contain facts about identifiable, specific individuals, and it’s that characteristics that distinguishes a similar file, in our view, and allows the agency and the courts to then apply the balancing test.

The D.C. Circuit’s notion of intimate details as the determinant of a similar file also doesn’t come from the legislative history of Exemption 6.

What the legislative history clearly shows is that Congress wanted to protect vast amounts of information about individuals that were stored in government files if disclosure, as the House report put it, would harm the individual.

But the House was confronted with the realization that it would be impractical to try to identify in advance every type of government file or every type of document that should not be disclosed.

So what the solution was was to pick a broad similar files threshold test so that no item that refers specifically to an individual would be excluded from the exemption, but to rely on the balancing test to screen out which items of personal information should be withheld and which items shouldn’t be withheld from the public.

Both the House and the Senate reports plainly show that the central part of the exemption, the crucial part, was intended to be the balancing test, not the threshold test.

And this Court reached the same conclusion in the Rose case.

And the Court of Appeals’ interpretation of similar files leads to a number of anomalous results that Congress couldn’t have intended.

For example, under the D.C. Circuit’s approach, information that is part of a government personnel or medical file could be considered for withholding under the Exemption 6 balancing test regardless of whether it’s generically intimate because it meets the threshold test by being a personnel or a medical file.

But the identical information if it’s contained in a government file other than a personnel or a medical file, it say be sitting right beside the personnel or medical file, the exact same information, it can’t be considered under the balancing test unless it’s generically intimate, because if it’s not generically intimate, it’s not a similar file under their view.

And this goes, by the way, even if it could be shown that disclosure of the information would work a clearly unwarranted invasion of personal privacy.

And let me give the Court an example of what I mean.

Kenneth Steven Geller:

Let’s assume that one of the individuals involved in this case, Yazdi or Behzadnia, had once applied to the State Department for a job.

If he had, he would have filled out a personnel form, and there would be a personnel file on him, and he surely would have been asked on the form whether he was a United States citizen, and somewhere in the State Department’s personnel files would be the answer to that question.

Now, if the Washington Post had submitted the request they submitted in this case, and if the State Department had found that answer in its personnel file, there’s no question that it would have satisfied the threshold test by being in a personnel file, and the question would then be does it pass the balancing test.

And a court in considering the State Department’s views on that issue would have to consider the unrebutted affidavits in this case.

But because the information sought by the Washington Post in this case, if it exists in the State Department at all exists in something other than a personnel file, the D.C. Circuit has held that no balancing can be done, no inquiry can be made into whether it would work a clearly unwarranted invasion of personal privacy.

Now, I’d like to end by making a point that I alluded to earlier, but I think it’s important enough to repeat; and that is that a broad reading of the term 6 will not result in the withholding of trivial or innocuous low privacy information in government files.

Despite the impression that the Washington Post and the newspaper amici have tried to create, the government’s interpretation of “similar files” here would not result in wholesale nondisclosure of information that should be made public.

The Court should keep in mind, as I said earlier, that even if something qualifies as a similar file under a threshold test, a federal agency still can’t withhold the information unless the agency also determines first if the information refers to a specific individual; second, that disclosure of that information would invade that individual’s privacy; and third and most important, that any such invasion of personal privacy would be clearly unwarranted in view of the public interest in disclosure.

That’s a very, very difficult burden for a federal agency to meet; and any determinations it makes in this area is of course judicially reviewable.

But in contrast to the D.C. Circuit’s test, at least disclosure decisions under this approach would be made on the basis 15 of rational criteria such as the possibility of harm to the individuals involved and not on the basis of whether the information happens to be in one file rather than another, or whether someone might consider it to be generically intimate.

Now, what we ask here is that we be given the opportunity to show that the information related to specific individuals requested by the Washington Post would constitute a clearly unwarranted invasion of personal privacy before the State Department is forced to release that information to the public.

If there are no further questions, I’d like to reserve the balance of my time.

Warren E. Burger:

Very well.

Mr. Kendall.

David E. Kendall:

Mr. Chief Justice, and may it please the Courts:

I waited expectantly for my brother Geller to tell the Court what District Court Judge Robinson found in this case.

Since he didn’t do so, I’m going to have to do so, because we come to this Court having won a judgment in the district court and having sustained that judgment on appeal.

Now, as the respondent in this Court, under the settled precedents of this Court we can defend the judgment of the Court of Appeals if there is any ground on which it can be sustained.

And I want to make quite clear at the outset we are defending that judgment not only on the ground that the Court of Appeals was correct in its similar files analysis, but also on the ground that Judge Robinson’s balancing test was correct, even though the Court of Appeals held that supererogatory on the facts of this case.

The government has consistently ignored what the district court did, but I want to emphasize that its conduct of the balancing test, which we submit was correct, is an alternative Ground on which we rely, because if this Court were to reverse the opinion of the Court of Appeals, it would have no effect on the outcome of this litigation unless you also find that Judge Robinson was wrong.

Well, we could send it back to the Court of Appeals, I take it, and tell them to review Judge Robinson’s finding.

David E. Kendall:

I think to do that, Justice Rehnquist, you would have to find that Judge Robinson’s conduct of the balancing test was wrong and would change the outcome of the court below?

Why?

What if the Court of Appeals had agreed with the… had gotten to the… gotten to the balancing test.

They would have had to review the question of whether the district court was right.

David E. Kendall:

They would, Mr. Justice White.

Well, why should we do that in the first instance?

David E. Kendall:

You do because that is a ground on which the decision of the court below may be sustained.

Oh, I know, but we don’t have to… we don’t have to listen to a respondent’s alternative–

David E. Kendall:

That’s correct, Mr. Justice White.

David E. Kendall:

That is an–

–We’re entitled to, and you’re entitled to present it, but we don’t have to.

David E. Kendall:

–That’s quite true.

We’re submitting two grounds here.

I just want to make plain that we think the Court of Appeals was right, but we also think Judge Robinson was right in his conduct of the balancing test.

This case arises out of our request for Department of State records that would indicate whether or not these two Iranian officials, Dr. All Behzadnia and Dr. Ibrahim Yazdi, were currently U.S. citizens.

Now, it is not correct that the Saunders affidavit submitted by the government was unrebutted in the district court.

We contended on our cross motion for summary judgment first of all that the information at issue was plainly a matter of public record.

We submitted a memorandum setting forth the applicable statutes and regulations, and that memorandum and the affidavit of our legal researcher is uncontroverted.

But you didn’t go after the public record.

David E. Kendall:

Excuse me, Mr. Justice Blackmun.

You didn’t seek out the public record.

David E. Kendall:

We did not seek… we were not able to find this information because there are 95–

It’s a big job.

David E. Kendall:

–Federal naturalization courts.

We’ll lose one tomorrow in the Canal Zone.

There are about 300 state courts.

We were not able to find it, but of course, the difficulty of locating a public record is one of the reasons the FOIA was enacted in the first place, to make access to public–

Is that clear in the legislative history?

David E. Kendall:

–I believe it is, Mr. Justice Blackmun, in the discussions particularly as to the first parts of the Freedom of Information Act.

It’s totally irrelevant of course, but I take it this information was of great concern to the Washington Post?

David E. Kendall:

We had printed a story saying that Yazdi was… that the INS, which is in the Justice Department, not the State Department, had confirmed that he was in fact an American citizen.

We were seeking to learn whether there had in the very recent past been any renunciation of that citizenship which would have been possessed in a record by the State Department.

Let me go back to this weighing process.

There have been some examples given.

It would help me if you could respond to this hypothetical.

Suppose any one of these dangerous dictatorships… you pick him out… announces that any citizens of that country within the boundaries of who have relatives who are in the United States who work for the United States government will be put into concentration camps for the obvious purpose of blackmailing.

Now, certainly public payrolls are, generally speaking, matters of public record.

Do you say the government could not withhold that information so as to protect those employees if there are some employees from extortionate blackmailing efforts, since we know that with Nazi Germany that happened regularly?

David E. Kendall:

Mr. Chief Justice, if that kind of a requirement were announced by a foreign country as a matter of policy, I think the government’s response under the Freedom of Information Act would be an executive order which would classify such information, and then the government would be able to rely on Exemption 1, the national security exemption.

David E. Kendall:

So I think that that would be the response in such a hypothetical case.

Well, then, are you saying that tomorrow an executive order could be entered classifying all information relating to these two gentlemen and that would close the matter?

David E. Kendall:

I don’t think so, Mr. Chief Justice, and that relates to the balancing test as it was conducted in the district court.

One of the… and I disagree that the Saunders affidavit was unrebutted.

One of the points we had made was that the Washington Post had already published a story three months before the Saunders affidavit was executed stating that Yazdi was an American citizen.

This we attach as Exhibit 4 to our summary judgment memorandum.

It appears in the Joint Appendix at pages 35 to 38.

It appeared… it was by Post reporter Bill Branigan and ran on October the 4th.

If I could just read the two lines of particular moment in that article.

“According to the U.S. Immigration and Naturalization Service, Yazdi was admitted as a permanent U.S. resident in July 1962 and became a naturalized American citizen on March 19, 1971. “

“The agency said Yazdi had not yet renounced his U.S. citizenship. “

Now, the point we made to Judge Robinson was we had already run a story stating that Dr. Ibrahim Yazdi was naturalized and remained a U.S. citizen.

We had given our source, a government agency, the INS.

If we could get the State Department records that we sought and if they confirmed the INS report, all we could do would be to run a similar story.

No.

It would be a little different.

It’s a little different from the Washington Post saying somebody’s an American citizen and the State Department saying that somebody’s an–

David E. Kendall:

Mr. Justice–

–There is a slight difference.

David E. Kendall:

–Mr. Justice Marshall, I agree with that, but our story here quoted INS.

My point was that the first story–

There’s a difference between INS and the State Department on citizenship.

David E. Kendall:

–There is a difference, but I would submit it’s a difference without very much import here, because both INS and–

Well, why did you want it?

David E. Kendall:

–Well, we wanted it as–

If it didn’t have any import, why did you want it?

David E. Kendall:

–We wanted it to make sure that Yazdi was still an American citizen.

One of the ways you can lose your citizenship is to renounce it at an embassy abroad.

What happens then is then the consular official will certify that fact and send a certificate of loss of nationality back to the Justice Department.

That’s required by statute.

David E. Kendall:

And then the Justice Department sends it to the Court of Naturalization.

So we thought that this renunciation might have happened in the interim.

Mr. Kendall, on page 20 of your brief you have a sentence in bold type that came as a shock to me when I read it:

“Information is not private simply because its disclosure might lead to embarrassment or even physical harm. “

Does that… does that state the position of the Washington Post; regardless of physical harm, information is not private?

David E. Kendall:

Justice Powell, we submit that that does not make information private.

What does it make it?

David E. Kendall:

It makes it either endangering or embarrassing, not private.

Well, let’s not talk about embarrassing because politicians embarrass each other or try to all the time, but putting someone in physical danger goes rather far, doesn’t it?

David E. Kendall:

Mr. Justice Powell, we think that the legislative history is clear here, that various other cases are–

That Congress intended, intended that public information… that information be made public that would endanger the life or safety of American citizens or foreign persons who had been here?

David E. Kendall:

–We think that is quite a different question than the question of a privacy interest.

We believe that in the district court we met our burden of showing that that information would not in fact be endangering.

But there are many kinds–

I was going to say I thought the privacy issue was a second issue in this case.

Perhaps we don’t get to it.

The first issue is a similar test.

David E. Kendall:

–That’s correct.

But if you reach the privacy issue, as you argue that we should, how to we dispose of that particular argument?

David E. Kendall:

Well, I think that you do so in light of the evidence of, in this record, a prior Washington Post story citing an official government agency stating that Yazdi was and remained a U.S. citizen.

But that’s arguing that republication would not endanger the individual.

The point I’m making, if it would endanger the safety, of an individual, are you contending on the balancing test that the information nevertheless should be released?

David E. Kendall:

No.

On the balancing test if the information were such that there was a legitimate expectation of privacy, on the balancing test endangerment would be one of the things weighed in that balance.

We’re contending here, however, that because of the way the process of naturalization has been established by Congress, because every part of that process is held open to public scrutiny, because the records of it are required by statute to be public that there is no expectation of privacy, and that the Court of Appeals was correct in holding on that basis that these were not similar files; in other words, that the threshold requirement of Exemption 6 was not met.

Well, where do you get the expectation of privacy?

That sounds like Fourth Amendment language.

David E. Kendall:

It’s drawn from many cases.

The Court here when it was construing Exemption 6 in Rose talked of the implication of similar privacy values when it was talking about the honor and ethics files of the Air Force Academy.

The cases, though, the Court of Appeals cases that we cite in our brief have made quite clear, I think, that privacy expectations are critical in determining whether something qualifies for Exemption 6, because the–

Are there any cases from this Court other than Rose that you rely on for the “expectation of privacy”?

David E. Kendall:

–The Rose case is the only case construing Exemption 5.

We have to look basically there.

We think that precedents from privacy cases and other constitutional cases of this Court, such as Paul v. Davis, Cox Broadcasting Corporation v. Cohen, provide useful and instructive analogies.

Well, I would think that a personnel file, for example, has a great deal of information that no one would have much expectation of privacy, if that’s the proper test, because a typical personnel file has a person’s date of birth, date of marriage, date of divorce sometimes, when you are sworn in at the Army, when you’re admitted to the bar… a lot of factors are facts of public record.

And yet no one denies that a personnel file has to go through this balancing test.

David E. Kendall:

That’s exactly right, but what comes out at the end of the balancing test, of course, according to this Court’s construction of Exemption 6 in Rose is that all of that information as to which there is no expectation of privacy would be disclosed.

Right.

David E. Kendall:

Couldn’t be withheld.

But you have to defend here the Court of Appeals’ reasoning that you don’t even get to the balancing test because it’s not a “similar file”.

David E. Kendall:

That’s correct, but there the Court of Appeals’ reasoning reasoned that as to citizenship information, given the public nature of the process, it’s a quite different kind of fact about you than many other facts that may be in government records.

That process is public from inception to the very end.

So is your date of birth, so is your date of marriage, so is the date on which you’re admitted to the bar.

David E. Kendall:

Well, Mr. Justice Rehnquist, I think if those facts were requested from the government… a government agency, and they didn’t come from personnel files, they would not qualify as similar files.

They qualify as similar files in your hypothetical simply because they are in personnel files.

Congress has explicitly made personnel files one of the things as to which you’ve got to apply the balancing test.

But then what is the link, what is the justem generis factor that you apply to get a hold of similar files when you’re dealing with, a) medical files, and b) personnel files?

David E. Kendall:

I think the best… it’s hard to give a description that is very concrete because so many possible kinds of facts may be encompassed.

I think the best test is that of this Court in Rose.

It asked of these Air Force Academy disciplinary files are similar facts or similar privacy values implicated.

The Court also quoted the legislative history which indicated that Congress had in mind intimate facts and personal details about an individual.

The legislative history of Exemption 6 in both the House and the Senate is similar in that it quotes some kinds of files, and then it refers to in one house intimate details, in the other highly personal facts.

And I think that’s the best you can do as a threshold definition.

And I think given that threshold definition the Court of Appeals was clearly correct in saying that as to naturalization files, those simply do not implicate the same kind of values, they don’t relate to a person’s family, medical condition, drinking habits, finances, religious practices and many other things.

They are generically public.

Well, I frankly don’t follow your suggestion that a naturalization file is all that different from a personnel file.

Doesn’t a person make an application to be naturalized?

David E. Kendall:

He does, and under, I believe it’s 8 U.S.C. 14-1841, that naturalization petition is a matter of public record.

As is–

David E. Kendall:

If you know where to look for it.

David E. Kendall:

As is a birth certificate if you know where to look for it.

–Are we dealing here with the naturalization file or just the fact of citizenship?

David E. Kendall:

Justice O’Connor, we’re dealing basically with the latter.

In framing an FOIA request, of course, you can’t simply ask a question; you’ve got to ask for records.

Our request was please give us any reference you have indicating whether or not now these two men are U.S. citizens.

That is a question that could have been answered over the phone yes or no.

So it would not… we don’t even know all the records that the State Department might have.

And in our request letter of September the 11th we indicated that if the records we requested contained any other information, that information could be redacted.

All we wanted was that indicating whether or not at that time the two men were citizens.

Is it your position that this would expose these people to no danger whatever, or that even if it does expose them to danger, you’re entitled to it?

David E. Kendall:

Mr. Chief Justice, I can’t say because I don’t know whether it would expose them to no danger.

We do know, however, that these books we’ve cited in our suggestion that certiorari was improvidently granted to contain statements from high State Department officials as to the very information we seek.

This book, 200, which we quoted in our brief,

“Ibrahim Yazdi, an Iranian immigrant to the United States, lived many years in Houston and acquired U.S. nationality. “

Likewise, the other book, also published last November, “Inside The Iranian Revolution”, written by a current State Department employee, director of the Emergency Operations Center, had a similar statement about Yazdi.

So you have two journalist sources.

David E. Kendall:

They are journalist sources, Mr. Chief Justice, but they are in a–

Aren’t they more reliable than the government for your purposes?

David E. Kendall:

–That is true, and we submit that they are reliable.

That makes all the more… that, it seems to me, undercuts the government’s prediction of likely harm.

We don’t think, and Judge Robinson didn’t think that on the facts of this case there was a sufficient showing of harm… of likelihood of harm to withhold the information.

Now, these books are not dispositive, but if you’re going to assume that a regime is so irrational to visit harm on one of its people because that person is an American citizen, it seems to us highly unlikely that they would distinguish in a nicely discriminating fashion between books written by a former ambassador to Iran and a current high State Department employee and what we would print on the basis of State Department records.

So to answer your question, I can’t say for certain, but we think that the government’s claims of possible harm have got to be taken with great skepticism here.

The INS released the information–

And if you’re wrong you’ll just say oops, we were wrong.

You’re willing to take the risk.

David E. Kendall:

–Well, there’s no very good answer–

I mean you’ve already published the story, right?

David E. Kendall:

–Exactly.

Based upon what INS has said.

And you’ve got all of this, so what do you need more for?

Because they haven’t done it to them yet?

David E. Kendall:

Mr. Justice Marshall, I think that fact cuts in our favor.

We want to know whether Yazdi has in fact renounced his citizenship.

On that point, would that document be a matter of public record if he had?

David E. Kendall:

Yes, it would.

It’s required by 8 U.S.C. 1501 that the certificate of loss of nationality be transmitted from the State Department to the Justice Department.

The Justice Department regulations we quote require that in the case of a naturalized citizen to be transmitted back to the Naturalization Court.

Now, the affidavit of our researcher, Paul Wolfe, Paul de Wolfe, which the government admits is uncontroverted, indicates that the practice of the courts is invariably to put the loss of citizenship–

Well, what if with the transmittal letter there was a request to keep this in camera?

Would there be anything to prohibit the district court clerk from doing that, and just filing it in his desk drawer with the permission or letter from the chief judge or something saying we’ve been requested to do this; we’ll just keep it private.

David E. Kendall:

–There is nothing in the regulations that would authorize that.

The statutes are–

Is there anything that would prohibit it is my question.

David E. Kendall:

–I don’t think there’s anything that prohibits–

If there is in fast danger to a man’s life, it is conceivable that that might be done, isn’t it?

David E. Kendall:

–Well, I think, though, that you’d only be addressing half the danger.

The danger to the man’s life would be the naturalization petition, which has been granted.

Presumably it would not be the renunciation petition.

No, but it would prevent one from finding out whether in fact he had renounced, because conceivably he might have told someone wherever he is I renounced my citizenship.

Maybe he’s telling the truth and maybe he isn’t.

But you want to find out whether it would be if that weren’t the case.

And I’m suggesting that possibly he could have renounced, and it might not be a matter of public record.

Maybe that’s why you can’t find it.

David E. Kendall:

Well, as I say, there is no… there is nothing in the regulations that would authorize such in camera–

No.

But the question is whether it would prohibit it.

David E. Kendall:

–I don’t know of any direct prohibition in the–

So then we can’t be positive that it’s a matter of public record.

David E. Kendall:

–We can’t be positive, but given all that the public records require, given the consistent treatment of INS–

But this is not, presumably, a normal case by hypothesis, if the government is to be believed.

I don’t know whether they are or not.

There is something exceptional about this particular individual that requires exceptional protection of this particular fact.

David E. Kendall:

–But the protection that would be required here, Justice Stevens, under the government’s own theory would not be a question of the renunciation of citizenship protection.

It would be, and again, under the Saunders affidavit itself, the fact Yazdi was an American citizen.

And there is certainly nothing… the statute affirmatively declares that that record will be kept public.

So under their theory, to protect Yazdi what you need to do is get rid of the entire file, and that they can’t do by statute.

There is a prohibition as to that.

Now, even the dates might be terribly crucial here.

Suppose, for example, that one of these men had renounced his citizenship by a letter to the government, the Secretary of State or whomever, in which he made a strong attack on the former regime of the Shah and renounced his citizenship on that grounds.

That would make him a hero in Iran today.

On the other hand, if he renounced… if he gained his citizenship after the revolution, that wouldn’t make him much of a hero in Iran today, would it?

David E. Kendall:

From what I know about the Iranian situation, that is correct, Mr. Chief Justice–

But you still maintain that the government isn’t entitled to try to protect these people from that risk.

David E. Kendall:

–Mr. Chief Justice, the government is bound by the Freedom of Information Act.

In this case I think that the issue has been joined as to the possible danger to Yazdi.

They have lost that issue in the District Court before Chief Justice… or before Judge Robinson.

They’re trying to relitigate the question here.

He applied the balancing test and found the affidavit and submissions in support of our motion for summary judgment persuasive.

Mr. Kendall, there’s a second individual involved, is there not?

David E. Kendall:

There is.

Dr. Ali Behzadnia.

You’ve referred only to the disclosures about Dr. Yazdi and have not referred to Dr. Behazdnia.

David E. Kendall:

That’s correct, Justice O’Connor.

The story that the Post ran concerned only Dr. Yazdi.

We have submitted an article from the Iran Times indicating Dr. Behzadnia was in Michigan.

All this record reveals is that there is uncertainty as to his whereabouts.

But the argument we would make would apply equally to Dr. Behzadnia.

There is no showing, and the government’s affidavit doesn’t make any showing that he is in any peculiar circumstances.

Did the district court finding extend to him as well?

David E. Kendall:

The district court finding extended to both me in the order that the district court entered on March 11, 1980.

This case–

Mr. Kendall, how do you understand the government to characterize the similar records that are entitled to the balancing test?

How would they describe them?

They disagree with the Court of Appeals’ characterization of such records.

How do you think they described them?

David E. Kendall:

–I have some difficulty knowing what their position is, but I don’t think it in fact differs very much from ours.

As a definitional matter it seems to me about the best you can do on the similar files question is to say that something will qualify and be treated as a similar file for purposes of possible withholding under Exemption 6 if it implicates the same kinds of personal privacy values–

Well, is that different from the Court of Appeals said?

David E. Kendall:

–I don’t believe it is.

I think the Court of Appeals–

Well, I thought the government was disagreeing with the standard the Court of Appeals applied to that question.

David E. Kendall:

–They are, but you asked me what their test is.

I think it’s very much like what the Court of Appeals did, and I think it’s very much like what this Court found in Rose.

So you think they’re really just disagreeing on the facts with the application of the standard as to whether this is a similar record.

David E. Kendall:

I believe that’s correct.

I don’t think that definitionally there is very much disagreement, because if you look at the language used, whether the emphasis is on intimate or personal, the thing that makes files potentially like medical or personnel files is the intimacy or the personal detail of those files.

The government has what is a very–

Well, do you think the government is suggesting that if in any particular file there’s something that’s embarrassing or dangerous or “personal”,

“then automatically it’s a similar file? “

David E. Kendall:

–Exactly.

I think their threshold requirement would be so expansive as to let any fact, no matter how publicly known, be a matter of withholding.

And I think that would completely destroy the threshold requirement that Congress has enacted in Exemption 6, and I think it would also distort the shape of the FOIA in a very significant fashion.

This Court has always emphasized when it reviewed the legislative history of FOIA that the exemptions were made exclusive, that they were to be construed narrowly, and it was the government’s burden to show that information qualified under a particular exemption.

Given the government’s theory, we would back in the old days of Section 3 of the Administrative Procedure Act which let a government agency withhold information, any kind of information, simply for good cause shown.

For all these reasons we believe that the Court of Appeals’ judgement should be affirmed or that the Court should dismiss here as improvidently granted.

Warren E. Burger:

Very well, Mr. Kendall.

Mr. Geller, do you have anything further?

Kenneth Steven Geller:

Just a few things, Mr. Chief Justice.

I hope I made the government’s position clearer to the Court than I apparently made it to Mr. Kendall.

And to me.

Kenneth Steven Geller:

And to you, Justice White.

The government’s position on the threshold test is that any document that refers to a specific individual is a similar file.

What the Washington Post says–

Any… any document.

Kenneth Steven Geller:

–Any document in the government’s files that mentions a particular individual is a similar file.

Now, all that means is that you then go on to the balancing test, which is a very difficult test for the government to meet.

But what the Washington Post says, it is not–

So you really just take out the word “similar”.

Kenneth Steven Geller:

–No.

You just say any other file that mentions an individual.

Kenneth Steven Geller:

Well, that is how we… that is what we think is the common denominator, what it is that Congress meant when it referred to personnel or medical files.

Those are files that almost by definition refer, mention the names of specific individuals.

There are a lot–

Yes, but they have particular kinds of information about them.

Kenneth Steven Geller:

–And that… well, but not all, all medical and personnel files are filled with only intimate details.

That was the point that I made in my opening argument.

There’s a lot in a medical or personnel file that is not intimate at all.

So it is not the fact that a detail is intimate that’s the common denominator; it’s the fact that it refers to a specific–

Well, it’s not much of a… it’s 41 not much of a threshold determination then, I take it.

Kenneth Steven Geller:

–We don’t think… we think–

It really is an empty, almost an empty gesture.

Kenneth Steven Geller:

–I think… I think not, Justice White.

There’s a lot of information in government files that doesn’t refer to any individuals, and that would not even pass the threshold test.

What Congress said, by the way, and what this Court said in the Rose case is that the crucial test is the balancing test, and that Congress did not intend large amounts of information to be screened out from even reaching the balancing test by the threshold test.

But that’s what the Washington Post’s test would do.

I should point out that we’re dealing here with a class of information.

This Court’s decision in this case will only affect information that, a) does not contain intimate details within the meaning of the D.C. Circuit’s test, but, b) the government could show would constitute a clearly unwarranted invasion of personal privacy if it were released.

Because after all, if we couldn’t even meet the balancing test, then regardless of the decision in this case, the information would have to be released, and it would be of only academic importance whether it had to be released because it didn’t pass–

Well, would you file… would it… any file that mentioned any person who is now alive or dead or what?

Kenneth Steven Geller:

–I would think that it would have to be a live person.

Would it be the person about whom you would want to do the balancing test in?

Kenneth Steven Geller:

Yes.

Or could it be a different person?

Kenneth Steven Geller:

No.

I would think it would have to be the person about whom–

Why, if it just has to mention a name?

Kenneth Steven Geller:

–It has to mention a name, but it has to… these are two parts of the same exemption.

They have to be related to each other.

And we think–

Well, Mr. Geller, is this to suggest all we need say is all “similar files” mean is identify by name a given individual?

Kenneth Steven Geller:

–A particular individual.

Therefore, vacate and send back to the–

Kenneth Steven Geller:

To the D.C. Circuit.

–Court of Appeals to apply the–

Kenneth Steven Geller:

That’s correct.

I mean Mr. Kendall says we’re trying to relitigate the question here.

We’d like to have one appellate determination of our argument that this would be a clearly unwarranted invasion of personal privacy.

–You mean you want that in the Court of Appeals you suggest.

Kenneth Steven Geller:

That’s what… we would be happy to have this Court announce that it would be a clearly unwarranted invasion.

We think it would be improper for this Court without adequate briefing… I don’t… I did not read the Washington Post brief in this case to raise that alternative ground for affirmance.

Well, Mr. Geller, do you… I take it you do not agree with the District Court either.

Kenneth Steven Geller:

That’s correct.

The District Court found that we met the similar files test.

Well, I know, but they didn’t agree with you on–

Kenneth Steven Geller:

Yes.

We disagree, obviously, that disclosure of this information would not constitute a clearly unwarranted invasion of personal privacy.

–And do you think… if we agree with you, what should we do with it?

Kenneth Steven Geller:

If you agree with the government on?

If we agree with you on the similar files issue.

Kenneth Steven Geller:

Well, we have suggested the case should be remanded to the Court of Appeals for a determination of whether the balancing test has been satisfied.

You haven’t… have you… you haven’t briefed that issue here.

Kenneth Steven Geller:

We briefed that issue in the Court of Appeals.

The Court of Appeals–

I know, but you haven’t briefed it here.

Kenneth Steven Geller:

–No.

The only–

So you don’t think we should even deal with that.

Kenneth Steven Geller:

–We have not… that’s correct.

But I don’t think that Mr. Kendall should be allowed to get away without answering the Chief Justice’s question.

The Chief Justice asked whether the Washington Post test in this case takes any account of the fact that someone might be harmed by the release of this personal information, and the answer I heard had something to do with balancing, which I didn’t understand.

The question… the upshot of the D.C. Circuit’s test which the Washington Post embraces in this case is exactly that.

The fact that someone might be harmed is irrelevant if, if the information is not an intimate detail, because then it can’t meet the threshold test, and you never have to reach the balancing test.

I took his answer to mean that that’s the law and that’s the end of it.

Kenneth Steven Geller:

That is another answer that he gave, Mr. Chief Justice, that the President could… at the moment the FOIA has nothing to say about the matter.

It can be dealt with.

The President could issue some executive order.

Perhaps Exemption 1 would then cover the situation.

But, counsel, did the district court when it applied the balancing test consider the danger to the individual?

Kenneth Steven Geller:

I assume it did.

The district court did not write an opinion.

You assume it did?

Kenneth Steven Geller:

Yes.

Well, we don’t know what–

And rejected it.

Kenneth Steven Geller:

–We must assume that.

It was presented to the district court.

All right.

And then if we sent it back to the Court of Appeals, would it have to apply the clearly erroneous standard?

Kenneth Steven Geller:

That is an interesting question, Justice O’Connor.

Kenneth Steven Geller:

I’m not sure that I’ve seen any case law on what the standard is.

It is in a sense and in some ways a factual determination, and perhaps the clearly erroneous standard would apply.

But that is not something that I have seen litigated.

I don’t see where even if you won up here you’d gain anything.

Kenneth Steven Geller:

Well, we would gain the opportunity to have an appellate resolution of the question of whether the disclosure of this information would be a clearly unwarranted invasion of personal privacy.

And would you say that even a congressional act that, for instance, required certain employees to file certain public information statements or reports would fall in the similar files category, so that the court has to balance whether that ought to be released to the public?

Kenneth Steven Geller:

If the government would withhold that information, which is very likely… we’re only talking here… obviously the government can release the information under the FOIA.

We’re talking about a case that the government has decided not to release because it believes it would constitute a clearly unwarranted invasion of personal privacy.

The fact that it relates to–

But you would say technically it was a similar file.

Kenneth Steven Geller:

–We would say it’s a similar file, and the fact that it is public or is required to be filed publicly would be very, very weighty in terms of how the balancing test should come out, and it would almost certainly have to be disclosed.

But that’s a separate question from saying that the government is not even entitled to make its argument that it would be a clearly unwarranted invasion of personal privacy.

Now, just one or two more things, if I may.

Justice Powell asked a question about whether harm is something the Congress was concerned about, physical harm, when it passed Exemption 6.

And the answer that I heard is that the legislative history is clear that Congress didn’t mean to include that.

And I would refer the Court to the House report which is quoted at page 19 of the government’s brief in which the House says that,

“The limitation, Exemption 6, provides a balance between protection of 48 the right to privacy and the preservation of the public’s right to government information by excluding those kinds of files, the disclosure of which might harm the individual. “

So we agree with Mr. Kendall that the legislative history is clear.

And just finally in response to Justice Stevens’ question, the regulations do provide that when an American citizen expatriates himself that the State Department is to send the record to the INS, which is to send the record to the Naturalization Court.

As Mr. Kendall said, there’s nothing in the regulation that prohibits keeping that information secret when it’s filed; but there is another answer as well, and that is that the regulation doesn’t provide any time limit within which the State Department has to forward the information to the INS or the INS has to forward the information to the Naturalization Court.

So it might well be… we don’t know whether the INS in fact gave the information to the Washington Post that they suggest… but it might well be that the INS was totally unaware if in fact Mr. Yazdi had expatriated himself, if in fact he was a citizen to begin with.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The honoroable court is now adjourned until Monday after at ten o clock.