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12 FOIA Update 1 (1991)

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U.S. Department of Justice
Office of Policy Development
Office of Information and Privacy

Vol. XII, No. 1
   Winter 1991


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.)

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