FOIA Facts: Privacy Under the FOIA vs. Historians/Journalists Need for Access to Data

By Scott A. Hodes

Published August 31, 2003

Journalists, historians, and others have a real need to gain access to information about third parties under the Freedom of Information Act (FOIA). However, the FOIA protects the personal privacy of individuals pursuant to exemptions (b)(6) and (b)(7)(C). This protection applies to living individuals. It has even been extended to protect information about deceased people when that information is determined to violate the privacy of the heirs of that individual.

Without a proof of death, or an authorization from a person, the government will deny a FOIA request about a third party, and will withhold third party names in records it actually processes. The government protects this information for a number of reasons. Foremost is that much of the information about individuals is contained in a Privacy Act systems of records. The unauthorized release of these records to third parties can result in a lawsuit with fines, and even possible prison time to government employees. Even if a disclosure is not found to be a violation of the Privacy Act, the time and effort it takes for the government to defend itself from an alleged Privacy Act violation causes bureaucrats to very careful in releasing information about individuals without first gaining authorization from these third parties.

Another major reason to withhold this information and a reason that has become much more important with the rise of the internet is to deter privacy theft. Even if the information is not Privacy Act protected, the release of someone’s personal identifiers, especially social security numbers, can cause individual’s identities to be stolen. A release to one individual without an authorization, under the FOIA, is a release to anyone else who wants the information. A disreputable person could easily collect this information, and use it to assist in privacy theft. The embarrassment and especially the destruction caused by privacy theft clearly does not warrant the government to release this type of information about living individuals under the FOIA.

Journalists and historians, however, often need information about individuals contained in government records. Government bureaucrats will almost always assume that individuals are alive, unless a proof of death is provided by the requester. Requests about living individuals will be denied, in whole, by the government to protect those individuals’ personal privacy. Requests containing names and other information about living individuals will have the information about the individuals redacted.

What happens when a request concerns individuals who are dead, or contain information that is about some people who most likely are no longer living? Some courts have held that the government must do some research into whether a person named in a record is still alive. However, it has never been determined exactly how far an agency must go to research the status of an individual. Courts have usually determined this on a case-by-case basis, and while a requester can require the government to determine if people named in records are alive or dead, it may take years and thousand of dollars in FOIA litigation to get that required result.

Journalists and historians, after spending years on research, can’t waste valuable time for courts to adjudicate these issues. Thus, even before making a FOIA request, and well before pressing this case in court, requester’s should do as much homework as possible. Requesters--especially journalists and historians--are often experts in the subject they are seeking information on from the government. Thus, they will know who is deceased and should document this in their original request letters to the government. A simple copy of a newspaper obituary will suffice for each person who is deceased. Furthermore, as the requester is often in contact with and often interviewing the people who are still alive, they should also get authorization from living people to have the government release the information to the requester under the FOIA. The authorization can be narrowed to only a specific event or topic by the third party. By providing this information to the government at the time of making the request, years may be possibly shaved off the time it takes to get a helpful and worthwhile response to a FOIA request.