Uncle Sam Can't Shield Data under FOIA Without Due Diligence

FindLaw

By Eric Sinrod

The recent case of Davis v. Department of Justice falls under the "gimme a break" or "you gotta be kidding" categories when it comes to the federal government's rationale for not producing information under the Freedom of Information Act, 5 U.S.C. 552 (FOIA).

So, let's dig in a bit. The case centered around four audiotapes recorded more than twenty-five years ago as part of an FBI investigation in Louisiana. An author, and the plaintiff in the case, sought release of the tapes under the FOIA. There were two apparent speakers on the tapes. One was a "prominent individual" who was the subject of the FBI investigation. The other was an "undercover informant" for that investigation.

The FOIA requires the federal government to produce information upon request with respect to its activities unless the requested information falls within one or more exemptions explicitly provided in the statute.

FOIA Exemption 7(C ) exempts law enforcement records from release "to the extent" that release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C ). Under relevant case law, in deciding whether a particular release of information constitutes an "unwarranted" invasion of privacy, an agency must balance the privacy interest at stake against the public interest in disclosure.

The FBI withheld production of the requested tapes pursuant to FOIA Exemption 7(C ). The FBI had taken the position that it had not been able to determine whether the subject speakers on the tapes were still living, and thus were entitled to have their privacy protected. FOIA case law holds that a person no longer has the same privacy rights upon his or her death.

The sole issue on appeal in the case was "whether the FBI had undertaken reasonable steps to determine whether the speakers are now dead, in which event the privacy interests weighing against released would be diminished," according to the federal appellate court in Washington, D.C.

As mentioned, the FBI had withheld producing the tapes because it could not ascertain whether the speakers were dead or alive. The FBI stated that it could not figure out whether the speakers were over 100 years old - and thus presumed dead under FBI practice - because neither had mentioned their birth dates during their conversations that were recorded surreptitiously.

The FBI also took the position that it could not conclude whether the speakers were alive or dead by referencing a Social Security database, because the speakers did not state their social security numbers during the recorded conversations.

Furthermore, the FBI failed to search its own files for the speakers' birth dates or social security numbers, simply because that is not its standard practice.

Finally, the FBI did not try any other methods of finding out if the speakers were alive or dead, such as conducting Google searches.

Not at all surprisingly, the appellate court determined that the FBI had not made reasonable efforts to ascertain whether the two speakers on whose behalf it invoked a FOIA privacy exemption are living or dead. Accordingly, there was a "serious question" whether the FBI had provided a "reasonable response" to the FOIA request.

The case was remanded back to the trial court, and hopefully the trial court will order the FBI to do proper due diligence in determining whether or not it properly can invoke Exemption 7(C ) in this case, consistent with the appellate court ruling.

The government bears the burden of invoking FOIA exemptions when refusing to produce information pursuant to FOIA requests. The least it can do when seeking to shield information is to do some minimum and easy research to conclude whether it truly can invoke an exemption properly.

In this case, the words of the appellate court ring abundantly true: "Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a 'reasonable alternative' for finding out whether a prominent person is dead is to use Google (or any other search engine), to find a report of that person's death."

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.

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This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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