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12 FOIA Update 1 (1991)

handle is hein.journals/foiaupd12 and id is 1 raw text is: U.S. Department of Justice Office of Policy Development Office of Information and Privacy Vol. XII, No. 1 Winter 1991 FOTA UPDATE Supreme Court to Hear Privacy Case The United States Supreme Court has decided to hear its first Freedom of Information Act case in nearly two years, a case involving the protec- tion of nanes and home addresses under Exemption 6 of the Act. On March 4, the Supreme Court granted the So- licitor General's petition for certiorari in De- partment of State v. Pay, 111 S. Ct. 1101 (1991), agreeing to review a decision by the Eleventh Cir- cuit Court of Appeals that would require disclo- sure of personal identifying information regarding hundreds of Haitian refugees who were interviewed by U.S. immigration officials about their well- being after they were returned to Haiti from the United States. Inmigration-Related FOIA Requests The Ey case arose several years ago when Michael D. Ray, a Miami immigration attorney, be- gan making use of the FOIA in connection with his clients' immigration proceedings. Representing several Haitian nationals seeking political asylum Supreme Court Update in the United States, Ray sought access to any State Departnent or INS records that might support his clients' asylum claims. He focused mst par- ticularly on reports of investigatory trips to Haiti that were taken by State Department and INS officials to determine whether Haitian refugees denied admittance to the United States suffered any mistreatment in Haiti upon their return. The State Department maintained such records, including confidential interviews conducted with hundreds of repatriated Haitians, which showed no evidence of mistreatment by Haitian authorities. It disclosed these reports to Ray under the FOIA, but it withheld the nanes of the interviewed Hai- tians, as well as other identifying information, 4 on personal privacy grounds under Exemption 6. On behalf of himself and three Haitian cli- ents facing deportation, Ray challenged the appli- cability of Exemption 6 in court. He argued that he and his clients needed access to the identities of all the interviewed Haitians so that they could conduct their own investigation into such matters -- including an inquiry into whether the United States was adequately monitoring Haiti's treatment of returned refugees and accurately conducting its interview process. In short, they indicated their intention to locate and re- interview the repa- triated Haitians in order to verify the accuracy of the State Department's records. Direct vs. Indirect Effects Both the district court and the court of ap- peals ruled in Ray's favor and ordered disclosure of the Haitians' identities. Neither court at- tached much weight to the interviewees' personal privacy interests in remaining anonynous, nor to the fact that the State Department gave all inter- viewees a firm pledge of confidentiality. Most significantly, the Eleventh Circuit ruled that disclosing the identities would serve a greater immigration-related public interest indirectly, in that they would provide a means to obtain 'public interest' information. ay v. Department of Jus- tice, 908 F.2d 1549, 1555 (11th Cir. 1990). The State Department, however, strongly con- tends that the interviewees would suffer a great personal privacy invasion if re- interviewed and that the Eleventh Circuit impermissibly looked to possible indirect effects of FOIA disclosure in conducting its public interest balancing. In pe- titioning for Supreme Court review, the Solicitor General stated the Governent's view that a proper consideration of the public interest served by a requested FOIA disclosure should focus upon the direct effects of disclosure, based upon the in- trinsic value of the requested material in convey- ing information about the conduct of government. The Ey case will provide the Supreme Court with its first opportunity to apply the privacy- protection principles of its landmark FOIA deci- sion in Departnt of Justice v. Reporters Connit- tee for Freedom of the Press, 489 U.S. 749 (1989). The four center pages of this issue of FOIA Update contain an updated list of the principal FOIA le- gal and administrative contacts at federal agen- cies. (Note many recent telephone rnumber changes.) Digitized from Best Copy Available Digitized from Best Copy Available

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