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Second Circuit Permits Office of Personnel Management to Assert FOIA Exemption 6

The Freedom of Information Act, 5 U.S.C. Section 552(b)(6), also known as "FOIA," was enacted "to promote honest and open government," Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999), and "to ensure public access to information created by the government in order to hold the governors accountable to the governed, "Tigue v. U.S. Dept't of Justice, 312 F.3d 70, 76 (2d Cir. 2002). It "strongly favors a policy of disclosure and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act."

Exemption 6 of FOIA permits federal agencies to "withhold from disclosure 'personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. Section 552(b)(6).Courts have recognized the need to balance the public's right to know with this right of privacy. See: Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005).

Plaintiffs are professors at Syracuse University and co-directors of the Transactional Records Access Clearinghouse (TRAC), which gathers data to provide public information about "federal staffing, spending, and the enforcement activities of the federal government." They had sought data from the Office of Personnel Management (OPM) central files, a data base of almost one million individuals, including most employees of the executive branch, except a few security agencies, the White House, and the Tennessee Valley Authority. OPM objected for the information sought, which included names and duty-station information the agency redacted for reasons of security.

The district court upheld the redaction of the names, but asserted that exemption 6 did not allow withhold of duty-station information. On appeal the court said that "the record...persuades us that the federal employees in both the sensitive agencies and the sensitive occupations have a cognizable privacy interest in keeping their names from being disclosed wholesale," but that the "privacy interest must be weighed against the public's interest in disclosure." Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996).

In ruling for the government on this issue, the court stated that "Plaintiffs have identified no appreciable public interest militating in favor of the wholesale disclosure of names of employees in the sensitive agencies and sensitive occupations,” and "therefore (OPM) need not identify any compelling privacy interest in order to 'clearly outweigh' the non-existent public interest." See: U.S. Dept of Def. v. Fed. Labor Relations Auth., 510 U.S. at 500. It also recognized that terrorists and others could derive specific work addresses from the duty-station information.

In the final analysis, the Appellate Court affirmed the judgment of the district court permitting the FOIA Exemption 6 to stand as far as withholding of the names at issue and some of the duty-station information, but reversed the district court determination that duty-station information for twenty sensitive occupations must be disclosed.

See: Long v. Office of Personnel Management, 10-1600, U.S. Crt of Appeals for the Second Circuit, (2011).


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Related legal case

Long v. Office of Personnel Management, 10-1600