Exemption 6


 * This article is part of a series on Exemptions

Introduction
Exemption 6 generally applies to records that involve personal privacy. It incorporates a balancing test that weighs any privacy interest against the public interest in disclosure.

Text of Exemption 6
(b) This section does not apply to matters that are—[...]


 * (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

Threshold Requirement: "Personnel and Medical Files and Similar Files"
The exemption covers “information which applies to a particular individual,” regardless of the nature of the file in which the information is contained.

In interpreting the scope of “personnel,” the U.S. Supreme Court has explained that while “[t]here is sparse legislative history as to the precise scope” of the term, Congress envisioned that files maintained by agencies such as the Health, Education, and Welfare Department, Selective Service, and Veterans’ Administration constituted “personnel files.” The Court held that case summaries of honor code hearings of the U.S. Air Force Academy were not “personnel files” because they did not contain personal data ordinarily found in a personnel file, such as birthplace, parents’ names, past residences, school records, examination results, or work performance evaluations. Further, access to the files was “not drastically limited, as is customarily true of personnel files.”

Instead, the court characterized them as “similar files” because they related to personnel discipline and “implicate[d] similar privacy values” as personnel files, such as the possibility of embarrassment, disgrace, and loss of friends or work. However, the Court also emphasized that even where a “personnel file” is at issue, an agency cannot apply a blanket exemption to withhold all of the information contained in such a file, and must release it unless “a clearly unwarranted invasion of privacy” would result.

The U.S. Supreme Court has held that the term “similar files” has “a broad, rather than a narrow, meaning,” citing the legislative history of the FOIA. An example of a record that a court found to be a “similar file[]” was an agency investigative report containing information about individuals’ “marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, [and] reputation.”

"Clearly Unwarranted Invasion of Personal Privacy"
If a record meets the threshold requirement, agencies and courts balance the individual's privacy interest against the public interest in disclosure.

Nature of Privacy Interest/Harm
A privacy interest is cognizable under FOIA where it is “substantial;” however, in the FOIA context, courts have found that a “substantial” privacy interest is any interest greater than one that is de minimis, or insignificant. A “substantial” privacy interest will be more likely found if disclosure of the information would potentially lead to some form of embarrassment or retaliation.

Determining the level of privacy interest in the information often requires looking to the particular facts of each case. As one court found: “‘the statute does not categorically exempt individuals’ identities. . . because the ‘privacy interest at stake may vary depending on the context in which it is asserted.’” In a case involving the release of lists of names or other personally identifying information, for example, the U.S. Supreme Court has emphasized that the question of whether disclosure “is a ‘significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.”

A “clearly unwarranted invasion of personal privacy,” requires more than simply stating “a demonstrated privacy interest.”

The U.S. Supreme Court has clarified that the exemption is “directed at threats to privacy more palpable than mere possibilities,” and the U.S. Court of Appeals for the D.C. Circuit requires the government to show a “substantial probability that the disclosure will lead to the threatened invasion.”

For example, a court held that the Department of the Navy did not meet this standard in attempting to withhold the names and amounts of prescription drugs that the National Naval Medical Center provided to the Office of Attending Physician to the U.S. Congress. The court explained that “courts ‘may properly discount [the] probability’ of invasion of privacy in light of attendant circumstances,’” and, in this case, even if each of the drugs was prescribable only for one disease, “it is fanciful to assume that without more. . . the knowledge that someone among 600 possible recipients was probably using the drug. . . would lead to the conclusion that Beneficiary X has disease Y.”

However, courts have recognized a greater privacy interest where disclosure of the information would put identified individuals in danger of embarrassment or unwanted intrusions. For example, the U.S. Supreme Court found a significant privacy interest in the names of Haitian nationals who unsuccessfully attempted to emigrate to the U.S. and were interviewed after being sent back to Haiti. The Court explained that release would identify them as people who cooperated with a federal investigation of Haiti’s compliance with its promise not to prosecute certain returnees, and could subject them to “retaliatory action” and embarrass them, and their families, “in their social and community relationships.”

Likewise, the U.S. Supreme Court recognized “some nontrivial privacy interest in nondisclosure” of the home addresses of non-union employees, recognizing their interest “in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.”

Examples of Substantial/De Minimis Privacy Interests
Instances where courts have recognized a privacy interest under FOIA include:
 * An FBI Special Agent’s name and an FBI support employee’s name and phone number, where releasing that information could subject them to harassment
 * Naval hospital admission records, as the patients had a “substantial privacy interest in avoiding disclosure of the fact that they sought medical treatment.”
 * The type and date of vaccines administered to individuals or their legal representatives contained in petitions filed against the Department of Health and Human Services and alleging death or injury from the vaccines, as this information could be linked to the individuals’ identities by comparison to other information.
 * The total amount of Medicare payments received by physicians for covered services.
 * Identities and home addresses of consumers who submitted complaints to the Federal Trade Commission regarding false charges that appeared on their credit card bills, as the court recognized consumers’ interest in keeping this information free from release to the general public.

In contrast, courts have not recognized a substantial privacy interest under FOIA in the following information:
 * The names of U.S. Postal Service employees involved in responding to allegations of an identity theft situation involving USPS employees, as the government failed to show that the employees would be harassed or intimidated following their disclosure.
 * The names and business addresses of unsuccessful applicants for federal research grants, as “[t]he adverse effect of a rejection of a grant proposal, if it exists at all, is limited to the professional rather than personal qualities of the applicant,” the government did not put forth strong evidence of stigma associated with the release of the information, and because “federal grant applicants cannot reasonably expect that their efforts to secure government funds, especially in a field so much in the public eye as cancer research, will remain purely private matters.”
 * Identifying information in letters sent by members of the public to the IRS inquiring about audits and investigations of 501(c)(3) tax-exempt organizations, as there is no “blanket anonymity for private citizens who write letters requesting assistance from government officials, even when personal relationships are implicated” and the agency offered no facts to support its assertion that the individuals would be harassed.
 * The name of a corporation that paid a member of a federal advisory committee to serve on the corporation’s board, as the court found that a person’s employment history does not generally have a high privacy interest.

Media Contact as Potential Harm
Courts have frequently held that the fact that disclosure of records may result in news media contact with the related individuals is “not the sort of invasion of privacy envisioned by Exemption 6.” Rather, as one court found, the privacy invasion must result from “the very ‘production’ of the documents.” That is, the degree of the privacy interest implicated by potential media contact with individuals identified in the records is based “on the nature of the information sought and not on the identity of the seeker.”

For example, the U.S. District Court for the District of Columbia found that the release of a list containing “generic” information about farmers receiving cotton subsidies, including their names, farm addresses, how much cotton they grew, and the amount of subsidies they received, would not “invite the kind of unwarranted intrusions that would justify nondisclosure.” This information was not “stigmatizing, embarrassing or dangerous.”

The court emphasized that “the release of the information itself — the fact that a particular farmer received a cotton subsidy. . . must create the unwarranted invasion of personal privacy and not the fact that it is The Washington Post that happens to be asking for it.” Further, it explained that “the mere threat of media attention does not suffice to draw the protective cloak of Exemption 6 over information that happens to be newsworthy.”

In contrast, where the subject of the information sought is only incidentally connected to a high-profile criminal matter, unwanted media contact may provide the basis for a stronger privacy interest. For example, the U.S. Court of Appeals for the Ninth Circuit ruled that witnesses and FBI agents connected to the investigation of a widely publicized plane crash had a privacy interest in avoiding outside contacts, such as from the media or commercial solicitors, that outweighed the public interest in their release under Exemption 7(C). The court emphasized that the privacy interests were heightened because the parties were involved with “a controversial criminal investigation,” and explained that “the privacy interests of citizens are highest when disclosure would reveal information collected about them in conjunction with a criminal inquiry.” The court specified that this was especially the case “where their link to the investigation is the result of ‘mere happenstance.’”

Private Party Attempting to Influence Policy
One factor that may minimize any privacy interest argument is where the information relates to a private party’s attempt to affect government policy, as courts have often recognized a diminished privacy interest in such cases.

As noted by the U.S. Court of Appeals for the Ninth Circuit, “the few cases considering a private party attempting to influence government policy typically find in favor of disclosure, lacking countervailing concerns.” A U.S. District Court for the District of Columbia has also affirmed that “[w]hen a citizen petitions his government to take some action, courts have generally declined to find the identity of the citizen to be information that raises privacy concerns under Exemption 6.”

For example, a court found that the public interest in release outweighed any privacy interests in the names of those who submitted unsolicited comments to an agency regarding proposed changes in a video shown at the Lincoln Memorial, as disclosing “who voluntarily submitted comments” for “a proposed policy decision” did not implicate “the kind of privacy concerns protected by Exemption 6.”

In another case, a court found it “remarkable” that the government objected to the release of the names and addresses of those who submitted public comments during an agency’s rulemaking process where only one of the 24,000 people who submitted comments requested anonymity, and the agency’s notice of proposed rulemaking itself “made no reference to any limitations on the public's ability to review the comments submitted.” The court held that there was little privacy interest — “if any” — in the nondisclosure of that information.

Promises of Confidentiality
Promises of confidentiality by the government “can not, in and of themselves, override” the FOIA’s disclosure mandates, and “[i]t will obviously not be enough for the agency to assert simply that it received the file under a pledge of confidentiality to the one who supplied it.”

The circumstances related to a particular promise are important to consider. For example, a court held that while agency consultants had a “heightened” expectation of privacy in their conflict-of-interest statements because of a clause stating the information would not be disclosed except “for good cause,” this “vague phrase” did not “substantially increase” most of the consultants’ privacy expectations because it could potentially be interpreted to mean that the information would “generally be made public.”

In contrast, the U.S. Supreme Court held that assurances of confidentiality given to Haitian nationals had “special significance” in assessing the privacy interest in summaries of interviews with them containing their names. The Court explained that the interviewees may have been willing to discuss more private matters in light of that assurance, as the release of the information might risk their mistreatment due to the nature of what they discussed.

The public interest in the release of records is another factor to be considered. As one court has held, “Other things being equal, release of information provided under a pledge of confidentiality involves a greater invasion of privacy than release of information provided without such a pledge,” but “such a pledge should not be given determinative weight where the public interest in disclosure is high and the privacy interest in the information would otherwise be low.”