United States Department of State v. Ray/Concurrence Scalia

Justice SCALIA, with whom Justice KENNEDY joins, concurring in part and concurring in the judgment.

I join the Court's judgment, and its opinion except Part III.

Exemption 6 of the Freedom of Information Act (FOIA) provides that the Act's disclosure requirements do not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). As the Court recognizes, ante, at 175, this requires an agency to balance the interest in personal privacy against the public interest in disclosure. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). In the context of evaluating the public-interest side of the balance, the parties in this case have vigorously disputed whether an agency must consider so-called "derivative" uses-i.e., not only the intrinsic public value of the records, but also, in this case, the potential that additional, publicly valuable information may be generated by further investigative efforts that disclosure of the records will make possible.

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. Perhaps FOIA would be a more sensible law if the Exemption applied whenever disclosure would "cause," "produce," or "lead to " a clearly unwarranted invasion of personal privacy, see, ''e.g., National Assn. of Retired Fed. Employees v. Horner,'' 279 U.S.App.D.C. 27, 32, 879 F.2d 873, 878 (1989), cert. denied, 494 U.S. 1078, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990)-though the practical problems in implementing such a provision would be considerable. That is not, however, the statute Congress enacted. Since the question under 5 U.S.C. § 552(b)(6) is whether "disclosure" would "constitute a clearly unwarranted invasion of personal privacy" (emphasis added); and since we have repeatedly held that FOIA's exemptions " 'must be narrowly construed,' " John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 475, 107 L.Ed.2d 462 (1989) (quoting Rose, supra, 425 U.S., at 361, 96 S.Ct., at 1599); it is unavoidable that the focus, in assessing a claim under Exemption 6, must be solely upon what the requested information reveals, not upon what it might lead to. Arieff v. United States Dept. of the Navy, 229 U.S.App.D.C. 430, 436, 712 F.2d 1462, 1468 (1983) (Scalia, J.). That result is in accord with the general policy of FOIA, which we referred to in United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771, 109 S.Ct. 1468, 1480-1481, 103 L.Ed.2d 774 (1989), that the particular purposes for which a request is made are irrelevant.

The Court today pointedly abstains from deciding the derivative-use issue, saying that, since the record does not support the existence of any second-order public benefits, "we need not address the question whether a 'derivative use' theory would ever justify release of information about private individuals." Ante, at. I am content with that. It seems to me, however, that since derivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together (there is no plausible reason to allow it for the one and bar it for the other) the Court should have been consistent in its abstention. It should not, in the portion of its opinion discussing the privacy interest (Part III), have discussed such matters as the "retaliatory action that might result from a renewed interest in [the interviewees'] aborted attempt to emigrate," and "the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports." Ante, at. This speculation is unnecessary to the decision since, as the Court notes, ante, at, each of the unredacted documents requested by respondents would disclose that a particular person had agreed, under a pledge of confidentiality, to report to a foreign power concerning the conduct of his own government. This is information that a person would ordinarily not wish to be known about himself-and thus constitutes an invasion of personal privacy. Cf. United States Dept. of State v. Washington Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). Since there is nothing on the other side of the equation the Court finding, quite correctly, that the public interests here have been "adequately served by disclosure of the redacted interview summaries," ante, at 178 -the question whether this invasion of privacy is "clearly unwarranted" must be answered affirmatively and the assertion of Exemption 6 must be sustained.

I choose to believe the Court's explicit assertion that it is not deciding the derivative use point, despite what seem to me contrary dicta elsewhere in the opinion.