Case Brief Assignment for:Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)In balancing the public’s interest in disclosure against the intrusion on person

FindLaw Caselaw United States US Supreme Cour t US DEPT. OF JUSTICE v . REPORTERS COMMI TTEE

Reset A A F ont siz e: Print

US DEPT . OF JUSTICE v. REPOR TERS COMMITTEE

United States Supreme Court

U.S. DEPT. OF JUSTICE v. REPOR TERS COMMITTEE, (1989)

No. 87-1379

Argued: December 7, 1988 Decided: March 22, 1989

On the basis of information provided b y local, state, and federal law enforcement agencies, the F ederal

Bureau of Investigation (FBI) compiles and maintains criminal identiﬁcation records or "r ap sheets"

on millions of persons, which contain descriptive information as well as a history of arrests, charges,

convictions, and incarcerations. After the FBI denied Freedom of Information A ct (FOIA) requests by

respondents, a CBS news correspondent and the Reporters Committee for Freedom of the Press, they

ﬁled suit in the District Court seeking the r ap sheet for one Charles Medico insofar as it contained

"matters of public record." Since the Pennsylvania Crime Commission had identiﬁed Medico's family

company as a legitimate business dominated b y organized crime ﬁgures, and since the compan y

allegedly had obtained a number of defense contr acts as a result of an improper arrangement with a

corrupt Congressman, respondents asserted that a record of ﬁnancial crimes b y Medico would

potentially be a matter of public interest. Petitioner Department of Justice responded that it had no

record of such crimes, but refused to conﬁrm or deny whether it had any information concerning

nonﬁnancial crimes b y Medico. The court gr anted summary judgment for the Department, holding,

inter alia, that the rap sheet was protected b y Exemption 7(C) of the FOIA, which excludes from that

statute's disclosure requirements records or information compiled for law enforcement purposes "to

the extent that the production of such [materials] . . . could reasonably be expected to constitute an

unwarranted invasion of personal privacy ." The Court of Appeals reversed and remanded, holding,

among other things, that district courts should limit themselves in this type of case to making the

factual determination whether the subject's legitimate privacy interest in his r ap sheet is outweighed

by the public interest in disclosure because the original information appears on the public record.

Held:

Disclosure of the contents of an FBI r ap sheet to a third party "could reasonably be expected to

constitute an unwarranted invasion of [489 U.S. 749, 750] personal privacy" within the meaning of

Exemption 7(C) and therefore is prohibited b y that Exemption. Pp. 762-780.

(a) Medico's interest in the nondisclosure of an y rap sheet the FBI might have on him is the sort of

"personal privacy" interest that Congress intended the Exemption to protect. Pp. 762-771.

(b) Whether disclosure of a private document is "warr anted" within the meaning of the Exemption

turns upon the nature of the requested document and its relationship to the FOIA 's central purpose of

exposing to public scrutin y oﬃcial information that sheds light on an agency's performance of its

statutory duties, rather than upon the particular purpose for which the document is requested or the

identity of the requesting party . The statutory purpose is not fostered b y disclosure of information

about private citizens that is accumulated in various governmental ﬁles but that reveals little or

nothing about an agency's own conduct. Pp. 771-775.

to protect, a categorical decision is appropriate and individual circumstances ma y be disregarded

when a case ﬁts into the genus in which the balance characteristically tips in one direction. Cf. FTC v.

Grolier Inc., 462 U.S. 19, 27 -28; NLRB v . Robbins Tire & Rubber Co., 437 U.S. 214, 224 . Id., at 223-224,

disapproved to the extent that it read the Exemption 's "an unwarranted invasion " phrase to require ad

hoc balancing. Where, as here, the subject of a r ap sheet is a private citizen and the information is in

the Government's control as a compilation, rather than as a record of what the Government is up to,

the privacy interest in maintaining the rap sheet's "practical obscurity" is alwa ys at its apex while the

FOIA-based public interest in disclosure is at its nadir. Thus, as a categorical matter, r ap sheets are

excluded from disclosure by the Exemption in such circumstances. Pp. 776-780.

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2 259 U.S. App. D.C. 426, 816 F.2d 730, and 265 U.S. App. D.C. 365, 831 F.2d 1124, reversed.

STE VENS, J., delivered the opinion of the Court, in which REHNQUIS T, C. J., and WHITE, MARSHALL,

O'CONNOR, SCALIA, and KENNED Y, JJ., joined. BLA CKMUN, J., ﬁled an opinion concurring in the

judgment, in which BRENNAN, J., joined, post, p. 780.

Roy T . Englert, Jr., argued the cause for petitioners. With him on the briefs were Solicitor Gener al

Fried, Assistant Attorney General Bolton, Deputy Solicitor Gener al Cohen, Leonard Schaitman, and

John F. Daly. [489 U.S. 749, 751]

Kevin T . Baine argued the cause for respondents. With him on the brief was Paul Mogin. *

[ Footnote * ] Robert R. Belair and Cath y Cravens Snell ﬁled a brief for Search Group, Inc., et al. as

amici curiae urging reversal.

Briefs of amici curiae urging aﬃrmance were ﬁled for the American Newspaper Publishers

Association et al. b y Richard J. Ovelmen and Laur a Besvinick; for the National Association of Retired

Feder al Emplo yees by Joseph B. Scott and Michael J. Kator; and for Public Citizen et al. b y Patti A.

Goldman, Alan B. Morrison, and Eric R. Glitzenstein.

Briefs of amici curiae were ﬁled for the State of California by John K. Van de Kamp, Attorney Gener al,

N. Eugene Hill, Assistant Attorney Gener al, Paul H. Dobson, Supervising Deputy Attorney Gener al, and

Ramon M. de la Guardia, Deputy Attorney General; and for the American Civil Liberties Union by John

A. Powell.

JUSTICE S TEVENS delivered the opinion of the Court.

The F ederal Bureau of Investigation (FBI) has accumulated and maintains criminal identiﬁcation

records, sometimes referred to as "r ap sheets," on over 24 million persons. The question presented b y

this case is whether the disclosure of the contents of such a ﬁle to a third party "could reasonably be

expected to constitute an unwarranted invasion of personal privacy" within the meaning of the

Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(7)(C) (1982 ed., Supp. V).

In 1924 Congress appropriated funds to enable the Department of Justice (Department) to establish a

program to collect and preserve ﬁngerprints and other criminal identiﬁcation records. 43 Stat. 217.

That statute authorized the Department to exchange such information with "oﬃcials of States, cities

and other institutions." Ibid. Six years later Congress created the FBI's identiﬁcation division, and gave

it responsibility for "acquiring, collecting, classifying, and preserving criminal identiﬁcation and other

crime records and the exchanging of said criminal identiﬁcation records with the duly authorized

oﬃcials of governmental agencies, [489 U.S. 749, 752] of States, cities, and penal institutions." Ch. 455,

46 Stat. 554 (codiﬁed at 5 U.S.C. 340 (1934 ed.)); see 28 U.S.C. 534(a) (4) (providing for exchange of r ap-

sheet information among "authorized oﬃcials of the Federal Government, the States, cities, and penal

and other institutions"). Rap sheets compiled pursuant to such authority contain certain descriptive

information, such as date of birth and ph ysical characteristics, as well as a history of arrests, charges,

convictions, and incarcer ations of the subject. Normally a r ap sheet is preserved until its subject

attains age 80. Because of the volume of r ap sheets, they are sometimes incorrect or incomplete and

sometimes contain information about other persons with similar names.

The local, state, and federal law enforcement agencies throughout the Nation that exchange r ap-sheet

data with the FBI do so on a voluntary basis. The principal use of the information is to assist in the

detection and prosecution of offenders; it is also used by courts and corrections oﬃcials in connection

with sentencing and parole decisions. As a matter of executive policy , the Department has generally

treated rap sheets as conﬁdential and, with certain exceptions, has restricted their use to

governmental purposes. Consistent with the Department's basic policy of treating these records as

conﬁdential, Congress in 1957 amended the basic statute to provide that the FBI's exchange of r ap-

sheet information with any other agency is subject to cancellation "if dissemination is made outside

the receiving departments or related agencies." 71 Stat. 61; see 28 U.S.C. 534(b).

As a matter of Department policy , the FBI has made two exceptions to its gener al practice of

prohibiting unoﬃcial access to r ap sheets. First, it allows the subject of a r ap sheet to obtain a copy, see

28 CFR 16.30-16.34 (1988); and second, it occasionally allows r ap sheets to be used in the preparation of

press releases and publicity designed to assist in the apprehension of wanted persons or fugitives. See

20.33(a)(4). [489 U.S. 749, 753]

In addition, on three separate occasions Congress has expressly authorized the release of r ap sheets

for other limited purposes. In 1972 it provided for such release to oﬃcials of feder ally chartered or

insured banking institutions and "if authorized by State statute and approved by the Attorney General,

to oﬃcials of State and local governments for purposes of emplo yment and licensing . . . ." 86 Stat.

1115. In 1975, in an amendment to the Securities Exchange Act of 1934, Congress permitted the

Attorney General to release rap sheets to self-regulatory organizations in the securities industry . See 15

U.S.C. 78q(f)(2) (1982 ed., Supp V). And ﬁnally , in 1986 Congress authorized release of criminal-history

information to licensees or applicants before the Nuclear Regulatory Commission. See 42 U.S.C.

2169(a). These three targeted enactments - all adopted after the FOIA was passed in 1966 - are

consistent with the view that Congress understood and did not disapprove the FBI's gener al policy of

treating rap sheets as nonpublic documents. Although much rap-sheet information is a matter of public record, the availability and dissemination

of the actual rap sheet to the public is limited. Arrests, indictments, convictions, and sentences are

public events that are usually documented in court records. In addition, if a person 's entire criminal

history transpired in a single jurisdiction, all of the contents of his or her r ap sheet may be available

upon request in that jurisdiction. That possibility , however, is present in only three States. 1 All of the

other 47 States place substantial restrictions on the availability of criminal-history summaries even

though individual events in those summaries are matters of public record. Moreover, even in Florida,

Wisconsin, and Oklahoma, the publicly available [489 U.S. 749, 754] summaries may not include

information about out-of-state arrests or convictions. 2

The statute known as the FOIA is actually a part of the A dministrative Procedure A ct (APA). Section 3

of the AP A as enacted in 1946 gave agencies broad discretion concerning the publication of

governmental records. 3 In 1966 Congress amended that section to implement "`a gener al philosophy

of full agency disclosure.'" 4 The amendment required agencies to publish their rules of procedure in

the Federal Register, 5 U.S.C. 552(a)(1)(C), and to mak e available for public inspection and copying their

opinions, statements of policy, interpretations, and staff manuals and instructions that are not

published in the Federal Register, 552(a)(2). In addition, 552(a)(3) requires every agency "upon an y

request for [489 U.S. 749, 755] records which . . . reasonably describes such records" to make such

records "promptly available to any person." 5 If an agency improperly withholds an y documents, the

district court has jurisdiction to order their production. Unlik e the review of other agency action that

must be upheld if supported by substantial evidence and not arbitr ary or capricious, the FOIA

expressly places the burden "on the agency to sustain its action " and directs the district courts to

"determine the matter de novo." 6

Congress exempted nine categories of documents from the FOIA 's broad disclosure requirements.

Three of those exemptions are arguably relevant to this case. Exemption 3 applies to documents that

are speciﬁcally exempted from disclosure by another statute. 552(b)(3). Exemption 6 protects

"personnel and medical ﬁles and similar ﬁles the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy ." 552(b)(6). 7 Exemption [489 U.S. 749, 756] 7(C) excludes

records or information compiled for law enforcement purposes, "but only to the extent that the

production of such [materials] . . . could reasonably be expected to constitute an unwarr anted invasion

of personal privacy." 552(b)(7)(C).

Exemption 7(C)'s privacy language is broader than the compar able language in Exemption 6 in two

respects. First, whereas Exemption 6 requires that the invasion of privacy be "clearly unwarr anted,"

the adverb "clearly" is omitted from Exemption 7(C). This omission is the product of a 1974

amendment adopted in response to concerns expressed by the President. 8 Second, whereas

Exemption 6 refers to disclosures that "would constitute" an invasion of privacy , Exemption 7(C)

encompasses any disclosure that "could reasonably be expected to constitute" such an invasion. This

difference is also the product of a speciﬁc amendment. 9 Thus, the standard for evaluating a

threatened invasion of privacy interests resulting from the disclosure of records compiled for law

enforcement purposes is somewhat broader than the standard applicable to personnel, medical, and

similar ﬁles. [489 U.S. 749, 757]

III

This case arises out of requests made b y a CBS news correspondent and the Reporters Committee for

Freedom of the Press (respondents) for information concerning the criminal records of four members

of the Medico family. The Pennsylvania Crime Commission had identiﬁed the family's compan y,

Medico Industries, as a legitimate business dominated b y organized crime ﬁgures. Moreover, the

company allegedly had obtained a number of defense contr acts as a result of an improper

arrangement with a corrupt Congressman.

The FOIA requests sought disclosure of an y arrests, indictments, acquittals, convictions, and sentences

of any of the four Medicos. Although the FBI originally denied the requests, it provided the requested

data concerning three of the Medicos after their deaths. In their complaint in the District Court,

respondents sought the r ap sheet for the fourth, Charles Medico (Medico), insofar as it contained

"matters of public record." App. 33.

The parties ﬁled cross-motions for summary judgment. Respondents urged that an y information

regarding "a record of bribery, embezzlement or other ﬁnancial crime" would potentially be a matter

of special public interest. Id., at 97. In answer to that argument, the Department advised respondents

and the District Court that it had no record of an y ﬁnancial crimes concerning Medico, but the

Department continued to refuse to conﬁrm or den y whether it had any information concerning

nonﬁnancial crimes. Thus, the issue was narrowed to Medico's nonﬁnancial-crime history insofar as it

is a matter of public record.

The District Court gr anted the Department's motion for summary judgment, relying on three separ ate

grounds. First, it concluded that 28 U.S.C. 534, the statute that authorizes the exchange of r ap-sheet

information with other oﬃcial agencies, also prohibits the release of such information to members of

the public, and therefore that Exemption 3 [489 U.S. 749, 758] was applicable. 10 Second, it decided

that ﬁles containing rap sheets were included within the category of "personnel and medical ﬁles and

similar ﬁles the disclosure of which would constitute an unwarr anted invasion of privacy," and

therefore that Exemption 6 was applicable. The term "similar ﬁles" applied because r ap-sheet information "is personal to the individual named therein." App. to Pet. for Cert. 56a. After balancing

Medico's privacy interest against the public interest in disclosure, the District Court concluded that the

invasion of privacy was "clearly unwarranted." 11 Finally, the court held that the r ap sheet was also

protected by Exemption [489 U.S. 749, 759] 7(C), but it ordered the Department to ﬁle a statement

containing the requested data in camer a to give it an opportunity to reconsider the issue if, after

reviewing that statement, such action seemed appropriate. After the Department made that ﬁling, the

District Court advised the parties that it would not reconsider the matter, but it did seal the in camer a

submission and make it part of the record on appeal.

The Court of Appeals reversed. 259 U.S. App. D.C. 426, 816 F.2d 730 (1987). It held that an individual's

privacy interest in criminal-history information that is a matter of public record was minimal at best.

Noting the absence of an y statutory standards by which to judge the public interest in disclosure, the

Court of Appeals concluded that it should be bound b y the state and local determinations that such

information should be made available to the general public. Accordingly, it held that Exemptions 6 and

7(C) were inapplicable. It also agreed with respondents that Exemption 3 did not apply because 28

U.S.C. 534 did not qualify as a statute "speciﬁcally" exempting r ap sheets from disclosure.

In response to rehearing petitions advising the court that, contr ary to its original understanding, most

States had adopted policies of refusing to provide members of the public with criminal-history

summaries, the Court of Appeals modiﬁed its holding. 265 U.S. App. D.C. 365, 831 F.2d 1124 (1987).

With regard to the public interest side of the balance, the court now recognized that it could not rely

upon state policies of disclosure. However, it adhered to its view that feder al judges are not in a

position to make "idiosyncratic" evaluations of the public interest in particular disclosures, see 259 U.S.

App. D.C., at 437, 816 F.2d, at 741; instead, it directed district courts to consider "the gener al disclosure

policies of the statute." 265 U.S. App. D.C., at 367, 831 F.2d, at 1126. With regard to the privacy interest

in nondisclosure of rap sheets, the court told the District Court "only to mak e a factual determination

in these kinds of [489 U.S. 749, 760] cases: Has a legitimate privacy interest of the subject in his r ap

sheets faded because they appear on the public record?" Id., at 368, 831 F.2d, at 1127. In accordance

with its initial opinion, it remanded the case to the District Court to determine whether the withheld

information is publicly available at its source, and if so, whether the Department might satisfy its

statutory obligation by referring respondents to the enforcement agency or agencies that had

provided the original information.

Although he had concurred in the Court of Appeals' original disposition, Judge Starr dissented,

expressing disagreement with the majority on three points. First, he rejected the argument that there

is no privacy interest in "cumulative, indexed, computerized" data simply because the underlying

information is on record at local courthouses or police stations:

"As I see it, computerized data banks of the sort involved here present issues consider ably more

diﬃcult than, and certainly very different from, a case involving the source records themselves. This

conclusion is buttressed by what I now know to be the host of state laws requiring that cumulative,

indexed criminal history information be k ept conﬁdential, as well as by general Congressional

indications of concern about the privacy implications of computerized data banks. See H. R. Rep. No.

1416, 93d Cong., 2d Sess. 3, 6-9 (1974), reprinted in Legislative History of the Privacy A ct of 1974,

Source Book on Privacy, 296, 299-302 (1974)." Id., at 369, 831 F.2d, at 1128.

Second, Judge Starr concluded that the statute required the District Court to mak e a separate

evaluation of the public interest in disclosure depending upon the kind of use that would be made of

the information and the identity of the subject: [489 U.S. 749, 761]

"Although there ma y be no public interest in disclosure of the FBI r ap sheet of one's otherwise

inconspicuously anonymous next-door neighbor, there ma y be a signiﬁcant public interest - one that

overcomes the substantial privacy interest at stak e - in the rap sheet of a public ﬁgure or an oﬃcial

holding high governmental oﬃce. F or guidance in ﬂeshing out that analysis, it seems sensible to me to

draw upon the substantial body of defamation law dealing with `public personages.'" Id., at 370, 831

F.2d, at 1129.

Finally , he questioned the feasibility of requiring the Department to determine the availability of the

requested material at its source, and expressed concern that the majority's approach departed from

the original purpose of the FOIA and threatened to convert the F ederal Government into a

clearinghouse for personal information that had been collected about millions of persons under a

variety of different situations:

"We are now informed that man y federal agencies collect items of information on individuals that are

ostensibly matters of public record. F or example, Veterans A dministr ation and Social Security records

include birth certiﬁcates, marriage licenses, and divorce decrees (which ma y recite ﬁndings of fault);

the Department of Housing and Urban Development maintains data on millions of home mortgages

that are presumably `public records' at county clerks' oﬃces. . . . Under the majority's approach, in the

absence of state conﬁdentiality laws, there would appear to be a virtual per se rule requiring all such

information to be released. The federal government is thereby transformed in one fell swoop into the

clearinghouse for highly personal information, releasing records on an y person, to any requester, for

any purpose. This Congress did not intend." Id., at 371, 831 F.2d, at 1130 (emphasis in original). [489

U.S. 749, 762] The Court of Appeals denied rehearing en banc, with four judges dissenting. App. to Pet. for Cert. 64a-

66a. Because of the potential effect of the Court of Appeals' opinion on values of personal privacy, we

granted certior ari. 485 U.S. 1005 (1988). We now reverse. 12

Exemption 7(C) requires us to balance the privacy interest in maintaining, as the Government puts it,

the "practical obscurity" of the r ap sheets against the public interest in their release.

The preliminary question is whether Medico's interest in the nondisclosure of an y rap sheet the FBI

might have on him is the sort of "personal privacy" interest that Congress intended Exemption 7(C) to

protect. 13 As we have pointed out before, "[t]he cases sometimes char acterized as protecting `privacy'

have in fact involved at least two different kinds of interests. One is the individual interest in avoiding

disclosure of personal matters, and another is the interest in independence in making certain kinds of

important decisions." Whalen v. Roe, 429 U.S. 589, 598 -600 (1977) (footnotes omitted). Here, the former

interest, "in avoiding disclosure of personal matters," is implicated. Because events summarized in a

rap sheet have been previously disclosed to the public, respondents contend that Medico's privacy

interest in avoiding disclosure of a feder al compilation of these events [489 U.S. 749, 763] approaches

zero. We reject respondents' cr amped notion of personal privacy .

To begin with, both the common law and the liter al understandings of privacy encompass the

individual's control of information concerning his or her person. In an organized society , there are few

facts that are not at one time or another divulged to another. 14 Thus the extent of the protection

accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly

private fact and the extent to which the passage of time rendered it private. 15 According to W ebster's

initial deﬁnition, information ma y be classiﬁed as "private" if it is "intended for or restricted to [489

U.S. 749, 764] the use of a particular person or group or class of persons: not freely available to the

public." 16 Recognition of this attribute of a privacy interest supports the distinction, in terms of

personal privacy, between scattered disclosure of the bits of information contained in a r ap sheet and

revelation of the rap sheet as a whole. The very fact that feder al funds have been spent to prepare,

index, and maintain these criminal-history ﬁles demonstr ates that the individual items of information

in the summaries would not otherwise be "freely available" either to the oﬃcials who have access to

the underlying ﬁles or to the general public. Indeed, if the summaries were "freely available," there

would be no reason to invoke the FOIA to obtain access to the information they contain. Gr anted, in

many contexts the fact that information is not freely available is no reason to exempt that information

from a statute gener ally requiring its dissemination. But the issue here is whether the compilation of

otherwise hard-to-obtain information alters the privacy interest implicated b y disclosure of that

information. Plainly there is a vast difference between the public records that might be found after a

diligent search of courthouse ﬁles, county archives, and local police stations throughout the country

and a computerized summary located in a single clearinghouse of information.

This conclusion is supported by the web of federal statutory and regulatory provisions that limits the

disclosure of [489 U.S. 749, 765] rap-sheet information. That is, Congress has authorized r ap-sheet

dissemination to banks, local licensing oﬃcials, the securities industry , the nuclear-power industry,

and other law enforcement agencies. See supr a, at 752-753. Further, the FBI has permitted such

disclosure to the subject of the rap sheet and, more generally, to assist in the apprehension of wanted

persons or fugitives. See supr a, at 752. Finally, the FBI's exchange of r ap-sheet information "is subject

to cancellation if dissemination is made outside the receiving departments or related agencies." 28

U.S.C. 534(b). This careful and limited pattern of authorized r ap-sheet disclosure ﬁts the dictionary

deﬁnition of privacy as involving a restriction of information "to the use of a particular person or

group or class of persons." Moreover, although perhaps not speciﬁc enough to constitute a statutory

exemption under FOIA Exemption 3, 5 U.S.C. 552(b)(3), 17 these statutes and regulations, taken as a

whole, evidence a congressional intent to protect the privacy of r ap-sheet subjects, and a concomitant

recognition of the power of compilations to affect personal privacy that outstrips the combined power

of the bits of information contained within.

Other portions of the FOIA itself bolster the conclusion that disclosure of records regarding private

citizens, identiﬁable by name, is not what the fr amers of the FOIA had in mind. Speciﬁcally , the FOIA

provides that "[t]o the extent required to prevent a clearly unwarr anted invasion of personal privacy,

an agency may delete identifying details when it mak es available or publishes an opinion, statement of

policy, interpretation, or staff manual or instruction." 5 U.S.C. 552(a)(2). A dditionally, the FOIA assures

that "[a]ny reasonably segregable portion of a record shall be provided to an y person requesting such

record after deletion of the portions which are exempt under [ (b)]." 5 U.S.C. 552 [489 U.S. 749, 766] (b)

(1982 ed., Supp. V). These provisions, for deletion of identifying references and disclosure of

segregable portions of records with exempt information deleted, reﬂect a congressional

understanding that disclosure of records containing personal details about private citizens can

infringe signiﬁcant privacy interests. 18

Also supporting our conclusion that a strong privacy interest inheres in the nondisclosure of compiled

computerized information is the Privacy Act of 1974, codiﬁed at 5 U.S.C. 552a (1982 ed. and Supp. V).

The Privacy Act was passed largely out of concern over "the impact of computer data banks on

individual privacy ." H. R. Rep. No. 93-1416, p. 7 (1974). The Privacy A ct provides generally that "[n]o

agency shall disclose an y record which is contained in a system of records . . . except pursuant to a

written request by, or with the prior written consent of, the individual to whom the record pertains." 5

U.S.C. 552a(b) (1982 ed., Supp. V). Although the Privacy A ct contains a variety of exceptions [489 U.S. 749, 767] to this rule, including an exemption for information required to be disclosed under the

FOIA, see 5 U.S.C. 552a(b) (2), Congress' basic policy concern regarding the implications of

computerized data banks for personal privacy is certainly relevant in our consideration of the privacy

interest affected by dissemination of r ap sheets from the FBI computer.

Given this level of feder al concern over centralized data bases, the fact that most States den y the

general public access to their criminal-history summaries should not be surprising. As we have

pointed out, see supr a, at 753, and n. 2, in 47 States nonconviction data from criminal-history

summaries are not available at all, and even conviction data are " generally unavailable to the public."

See n. 2, supr a. State policies, of course, do not determine the meaning of a feder al statute, but they

provide evidence that the law enforcement profession generally assumes - as has the Department of

Justice - that individual subjects have a signiﬁcant privacy interest in their criminal histories. It is

reasonable to presume that Congress legislated with an understanding of this professional point of

view.

In addition to the common-law and dictionary understandings, the basic difference between scattered

bits of criminal history and a feder al compilation, federal statutory provisions, and state policies, our

cases have also recognized the privacy interest inherent in the nondisclosure of certain information

even where the information ma y have been at one time public. Most apposite for present purposes is

our decision in Department of Air F orce v. Rose, 425 U.S. 352 (1976). New Y ork University law students

sought Air Force Academy Honor and Ethics Code case summaries for a law review project on military

discipline. The A cademy had already publicly posted these summaries on 40 squadron bulletin boards,

usually with identifying names redacted (names were posted for cadets who were found guilty and

who left the Academy), and with instructions that cadets should read [489 U.S. 749, 768] the

summaries only if necessary . Although the opinion dealt with Exemption 6's exception for "personnel

and medical ﬁles and similar ﬁles the disclosure of which would constitute a clearly unwarr anted

invasion of personal privacy," and our opinion today deals with Exemption 7(C), much of our

discussion in Rose is applicable here. W e explained that the FOIA permits release of a segregable

portion of a record with other portions deleted, and that in camer a inspection was proper to

determine whether parts of a record could be released while keeping other parts secret. See id., at 373-

377; 5 U.S.C. 552(b) and (a)(4)(B) (1982 ed. and Supp. V). We emphasized the FOIA's segregability and in

camera provisions in order to explain that the case summaries, with identifying names redacted, were

generally disclosable. W e then offered guidance to lower courts in determining whether disclosure of

all or part of such case summaries would constitute a "clearly unwarr anted invasion of personal

privacy" under Exemption 6:

"Respondents sought only such disclosure as was consistent with [the A cademy tradition of k eeping

identities conﬁdential within the A cademy]. Their request for access to summaries `with personal

references or other identifying information deleted,' respected the conﬁdentiality interests embodied

in Exemption 6. As the Court of Appeals recognized, however, what constitutes identifying information

regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the

vantage of those who would have been familiar, as fellow cadets or A cademy staff, with other aspects

of his career at the Academy. Despite the summaries' distribution within the A cademy, many of this

group with earlier access to summaries ma y never have identiﬁed a particular cadet, or ma y have

wholly forgotten his encounter with Academy discipline. And the risk to the privacy interests of a

former cadet, particularly one who has remained in the military , posed by his [489 U.S. 749, 769]

identiﬁcation b y otherwise unknowing former colleagues or instructors cannot be rejected as trivial.

We nevertheless conclude that consider ation of the policies underlying the Freedom of Information

Act, to open public business to public view when no `clearly unwarr anted' invasion of privacy will

result, requires aﬃrmance of the holding of the Court of Appeals . . . that although `no one can

guarantee that all those who are "in the know" will hold their tongues, particularly years later when

time ma y have eroded the fabric of cadet lo yalty,' it suﬃced to protect privacy at this stage in these

proceedings b y enjoining the District Court . . . that if in its opinion deletion of personal references and

other identifying information `is not suﬃcient to safeguard privacy , then the summaries should not be

disclosed to [respondents].'" 425 U.S., at 380 -381.

See also id., at 387-388 (BLACKMUN, J., dissenting); id., at 389-390 (REHNQUIS T, J., dissenting). In this

passage we doubly stressed the importance of the privacy interest implicated b y disclosure of the case

summaries. First: We praised the A cademy's tr adition of protecting personal privacy through

redaction of names from the case summaries. But even with names redacted, subjects of such

summaries can often be identiﬁed through other, disclosed information. So, second: Even though the

summaries, with only names redacted, had once been public, we recognized the potential invasion of

privacy through later recognition of identifying details, and approved the Court of Appeals' rule

permitting the District Court to delete "other identifying information " in order to safeguard this

privacy interest. If a cadet has a privacy interest in past discipline that was once public but ma y have

been "wholly forgotten," the ordinary citizen surely has a similar interest in the aspects of his or her

criminal history that may have been wholly forgotten.

We have also recognized the privacy interest in k eeping personal facts away from the public eye. In

Whalen v. Roe, [489 U.S. 749, 770] 429 U.S. 589 (1977), we held that "the State of New Y ork may record,

in a centr alized computer ﬁle, the names and addresses of all persons who have obtained, pursuant to

a doctor's prescription, certain drugs for which there is both a lawful and an unlawful mark et." Id., at

591. In holding only that the Federal Constitution does not prohibit such a compilation, we recognized

that such a centr alized computer ﬁle posed a "threat to privacy": "We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal

information in computerized data banks or other massive government ﬁles. The collection of taxes,

the distribution of welfare and social security beneﬁts, the supervision of public health, the direction

of our Armed F orces, and the enforcement of the criminal laws all require the orderly preservation of

great quantities of information, much of which is personal in char acter and potentially embarrassing

or harmful if disclosed. The right to collect and use such data for public purposes is typically

accompanied by a concomitant statutory or regulatory duty to avoid unwarr anted disclosures.

Recognizing that in some circumstances that duty arguably has its roots in the Constitution,

nevertheless New York's statutory scheme, and its implementing administr ative procedures, evidence

a proper concern with, and protection of, the individual's interest in privacy ." Id., at 605 (footnote

omitted); see also id., at 607 (BRENNAN, J., concurring) ("The central storage and easy accessibility of

computerized data vastly increase the potential for abuse of that information . . .").

In sum, the fact that "an event is not wholly `private' does not mean that an individual has no

interests in limiting disclosure or dissemination of the information." Rehnquist, Is an Expanded Right

of Privacy Consistent with F air and Effective Law Enforcement?, Nelson Timoth y Stephens Lectures,

University of Kansas Law School, pt. 1, p. 13 (Sept. 26-27, [489 U.S. 749, 771] 1974). The privacy

interest in a rap sheet is substantial. The substantial char acter of that interest is affected by the fact

that in today's society the computer can accumulate and store information that would otherwise have

surely been forgotten long before a person attains age 80, when the FBI's r ap sheets are discarded.

Exemption 7(C), by its terms, permits an agency to withhold a document only when revelation "could

reasonably be expected to constitute an unwarr anted invasion of personal privacy." We must next

address what factors might warr ant an invasion of the interest described in Part IV , supra.

Our previous decisions establish that whether an invasion of privacy is warr anted cannot turn on the

purposes for which the request for information is made. Except for cases in which the objection to

disclosure is based on a claim of privilege and the person requesting disclosure is the party protected

by the privilege, the identity of the requesting party has no bearing on the merits of his or her FOIA

request. Thus, although the subject of a presentence report can waive a privilege that might defeat a

third party's access to that report, United States Department of Justice v . Julian, 486 U.S. 1, 13 -14

(1988), and although the FBI's policy of granting the subject of a rap sheet access to his own criminal

history is consistent with its policy of den ying access to all other members of the gener al public, see

supra, at 752, the rights of the two press respondents in this case are no different from those that

might be asserted b y any other third party , such as a neighbor or prospective emplo yer. As we have

repeatedly stated, Congress "clearly intended" the FOIA "to give an y member of the public as much

right to disclosure as one with a special interest [in a particular document]." NLRB v . Sears, Roebuck &

Co., 421 U.S. 132, 149 (1975); see NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221 (1978); FBI v.

Abramson, 456 U.S. 615 (1982). As Professor [489 U.S. 749, 772] Davis explained: "The A ct's sole

concern is with what must be made public or not made public." 19

Thus whether disclosure of a private document under Exemption 7(C) is warr anted must turn on the

nature of the requested document and its relationship to "the basic purpose of the Freedom of

Information Act `to open agency action to the light of public scrutin y.'" Department of Air F orce v.

Rose, 425 U.S., at 372 , rather than on the particular purpose for which the document is being

requested. In our leading case on the FOIA, we declared that the A ct was designed to create a broad

right of access to "oﬃcial information." EPA v. Mink, 410 U.S. 73, 80 (1973). 20 In his dissent in that

case, Justice Douglas char acterized the philosophy of the statute by quoting this comment b y Henry

Steele Commager:

"`The generation that made the nation thought secrecy in government one of the instruments of Old

World tyr anny and committed itself to the principle that a democr acy cannot function unless the

people are permitted [489 U.S. 749, 773] to know what their government is up to.'" Id., at 105 (quoting

from The New York Review of Books, Oct. 5, 1972, p. 7) (emphasis added).

This basic policy of "full agency disclosure unless information is exempted under clearly delineated

statutory language,'" Department of Air F orce v. Rose, 425 U.S., at 360 -361 (quoting S. Rep. No. 813,

89th Cong., 1st Sess., 3 (1965)), indeed focuses on the citizens' right to be informed about "what their

government is up to." Oﬃcial information that sheds light on an agency's performance of its statutory

duties falls squarely within that statutory purpose. That purpose, however, is not fostered b y

disclosure of information about private citizens that is accumulated in various governmental ﬁles but

that reveals little or nothing about an agency's own conduct. In this case - and presumably in the

typical case in which one private citizen is seeking information about another - the requester does not

intend to discover anything about the conduct of the agency that has possession of the requested

records. Indeed, response to this request would not shed an y light on the conduct of any Government

agency or oﬃcial.

The point is illustrated by our decision in Rose, supr a. As discussed earlier, we held that the FOIA

required the United States Air F orce to honor a request for in camer a submission of disciplinary-

hearing summaries maintained in the A cademy's Honors and Ethics Code reading ﬁles. The

summaries obviously contained information that would explain how the disciplinary procedures

actually functioned and therefore were an appropriate subject of a FOIA request. All parties, however,

agreed that the ﬁles should be redacted b y deleting information that would identify the particular

cadets to whom the summaries related. The deletions were unquestionably appropriate because the names of the particular cadets were irrelevant to the inquiry into the way the Air Force Academy

administered its Honor Code; leaving the identifying material in the summaries would therefore have

been a "clearly unwarr anted" [489 U.S. 749, 774] invasion of individual privacy . If, instead of seeking

information about the Academy's own conduct, the requests had ask ed for speciﬁc ﬁles to obtain

information about the persons to whom those ﬁles related, the public interest that supported the

decision in Rose would have been inapplicable. In fact, we explicitly recognized that "the basic

purpose of the [FOIA is] to open agency action to the light of public scrutin y." Id., at 372.

Respondents argue that there is a twofold public interest in learning about Medico's past arrests or

convictions: He allegedly had improper dealings with a corrupt Congressman, and he is an oﬃcer of a

corpor ation with defense contr acts. But if Medico has, in fact, been arrested or convicted of certain

crimes, that information would neither aggr avate nor mitigate his allegedly improper relationship

with the Congressman; more speciﬁcally, it would tell us nothing directly about the char acter of the

Congressman's behavior. Nor would it tell us an ything about the conduct of the Department of Defense

(DOD) in awarding one or more contr acts to the Medico Company. Arguably a FOIA request to the DOD

for records relating to those contr acts, or for documents describing the agency's procedures, if an y, for

determining whether oﬃcers of a prospective contr actor have criminal records, would constitute an

appropriate request for "oﬃcial information." Conceivably Medico's r ap sheet would provide details to

include in a news story, but, in itself, this is not the kind of public interest for which Congress enacted

the FOIA. In other words, although there is undoubtedly some public interest in an yone's criminal

history, especially if the history is in some wa y related to the subject's dealing with a public oﬃcial or

agency, the FOIA 's central purpose is to ensure that the Government's activities be opened to the sharp

eye of public scrutin y, not that information about private citizens that happens to be in the warehouse

of the Government be so disclosed. Thus, it should come as no surprise that in none of our cases

construing the FOIA have we found it appropriate [489 U.S. 749, 775] to order a Government agency

to honor a FOIA request for information about a particular private citizen. 21

What we have said should mak e clear that the public interest in the release of an y rap sheet on Medico

that ma y exist is not the type of interest protected b y the FOIA. Medico may or may not be one of the

24 million persons for whom the FBI has a r ap sheet. If respondents are entitled to have the FBI tell

them what it knows about Medico's criminal history , any other member of the public is entitled to the

same disclosure - whether for writing a news story , for deciding whether to employ Medico, to rent a

house to him, to extend credit to him, or simply to conﬁrm or den y a suspicion. There is,

unquestionably, some public interest in providing interested citizens with answers to their questions

about Medico. But that interest falls outside the ambit of the public interest that the FOIA was enacted

to serve.

Finally, we note that Congress has provided that the standard fees for production of documents under

the FOIA shall be waived or reduced "if disclosure of the information is in the public interest because

it is likely to contribute signiﬁcantly to public understanding of the oper ations or activities of the

government and is not primarily in the commercial interest of the requester." 5 U.S.C. 552(a)(4)(A)(iii)

(1982 ed., Supp. V). Although such a provision obviously implies that there will be requests that do not

meet such a "public interest" standard, we think it relevant to toda y's inquiry regarding the public

interest in release of rap sheets on private citizens that Congress once again expressed the core

purpose of the FOIA as "contribut[ing] signiﬁcantly to public understanding of the oper ations or

activities of the government." [489 U.S. 749, 776]

Both the general requirement that a court "shall determine the matter de novo" and the speciﬁc

reference to an "unwarr anted" invasion of privacy in Exemption 7(C) indicate that a court must

balance the public interest in disclosure against the interest Congress intended the Exemption to

protect. Although both sides agree that such a balance must be undertak en, how such a balance should

be done is in dispute. The Court of Appeals majority expressed concern about assigning feder al judges

the task of striking a proper case-by-case, or ad hoc, balance between individual privacy interests and

the public interest in the disclosure of criminal-history information without providing those judges

standards to assist in performing that task. Our cases provide support for the proposition that

categorical decisions may be appropriate and individual circumstances disregarded when a case ﬁts

into a genus in which the balance char acteristically tips in one direction. The point is well illustr ated

by both the majority and dissenting opinions in NLRB v . Robbins Tire & Rubber Co., 437 U.S. 214 (1978).

In Robbins, the majority held that Exemption 7(A), which protects from disclosure law enforcement

records or information that "could reasonably be expected to interfere with enforcement

proceedings," applied to statements of witnesses whom the National Labor Relations Board (NLRB or

Board) intended to call at an unfair-labor-practice hearing. Although we noted that the language of

Exemptions 7(B), (C), and (D) seems to contemplate a case-b y-case showing "that the factors made

relevant by the statute are present in each distinct situation," id., at 223; see id., at 234, we concluded

that Exemption 7(A) "appears to contemplate that certain generic determinations might be made." Id.,

at 224. Thus, our ruling encompassed the entire category of NLRB witness statements, and a

concurring opinion pointed out that the category embr aced enforcement proceedings by other

agencies [489 U.S. 749, 777] as well. See id., at 243 (STEVENS, J., concurring). In his partial dissent,

Justice Powell endorsed the Court's " generic" approach to the issue, id., at 244; he agreed that "the

congressional requirement of a speciﬁc showing of harm does not prevent determinations of lik ely

harm with respect to prehearing release of particular categories of documents." Id., at 249. In his view ,

however, the exempt category should have been limited to statements of witnesses who were currently employed by the respondent. T o be sure, the majority opinion in Robbins noted that the

phrases "`a person,'" "`an unwarr anted invasion,'" and "`a conﬁdential source,'" in Exemptions 7(B),

(C), and (D), respectively, seem to imply a need for an individualized showing in every case (whereas

the plural "`enforcement proceedings'" in Exemption 7(A) implies a categorical determination). See id.,

at 223-224. But since only an Exemption 7(A) question was presented in Robbins, we conclude toda y,

upon closer inspection of Exemption 7(C), that for an appropriate class of law enforcement records or

information a categorical balance ma y be undertaken there as well. 22 [489 U.S. 749, 778]

First: A separate discussion in Robbins applies properly to Exemption 7(C) as well as to Exemption

7(A). Respondent had argued that "because FOIA expressly provides for disclosure of segregable

portions of records and for in camer a review of documents, and because the statute places the burden

of justifying nondisclosure on the Government, 5 U.S.C. 552(a)(4)(B), (b) (1976 ed.), the A ct necessarily

contemplates that the Board must speciﬁcally demonstrate in each case that disclosure of the

particular witness' statement would interfere with a pending enforcement proceeding." 437 U.S., at

224 . We rejected this argument, holding instead that these provisions could equally well apply to

categorical balancing. This holding - that the provisions regarding segregability , in camera inspections,

and burden of proof do not b y themselves mandate case-b y-case balancing - is a general one that

applies to all exemptions.

Second: Although Robbins noted that Exemption 7(C) speaks of "an unwarr anted invasion of personal

privacy" (emphasis added), we do not think that the Exemption's use of the singular mandates ad hoc

balancing. The Exemption in full provides: "This section does not apply to matters that are - records or

information compiled for law enforcement purposes, but only to the extent that the production of

such law enforcement records or information . . . could reasonably be expected to constitute an

unwarranted invasion of personal [489 U.S. 749, 779] privacy." Just as one can ask whether a

particular r ap sheet is a "law enforcement record" that meets the requirements of this Exemption, so

too can one ask whether r ap sheets in general (or at least on private citizens) are "law enforcement

records" that meet the stated criteria. If it is alwa ys true that the damage to a private citizen's privacy

interest from a rap sheet's production outweighs the FOIA-based public value of such disclosure, then

it is perfectly appropriate to conclude as a categorical matter that "production of such [r ap sheets]

could reasonably be expected to constitute an unwarranted invasion of personal privacy." In sum,

Robbins' focus on the singular "an" in the phrase "an unwarr anted invasion of personal privacy" is not

a suﬃcient reason to hold that Exemption 7(C) requires ad hoc balancing.

Third: In FTC v. Grolier Inc., 462 U.S. 19 (1983), we also supported categorical balancing. Respondent

sought FT C documents concerning an investigation of a subsidiary . At issue were seven documents

that would normally be exempt from disclosure under Exemption 5, which protects "inter-agency or

intra-agency memor andums or letters which would not be available b y law to a party other than an

agency in litigation with the agency." 5 U.S.C. 552(b)(5). The Court of Appeals held that four of the

documents "could not be withheld on the basis of the work-product rule unless the Commission could

show that `litigation related to the terminated action exists or potentially exists.'" 462 U.S., at 22 . We

reversed, concluding that even if in some instances civil-discovery rules would permit such disclosure,

"[s]uch materials are . . . not `routinely' or `normally' available to parties in litigation and hence are

exempt under Exemption 5." Id., at 27. W e added that "[t]his result, by establishing a discrete category

of exempt information, implements the congressional intent to provide `workable' rules. . . . Only b y

construing the Exemption to provide a categorical rule can the Act's purpose of expediting disclosure

by means of workable rules be furthered." Id., at 27-28 (emphasis added). [489 U.S. 749, 780]

Finally: The privacy interest in maintaining the pr actical obscurity of rap-sheet information will

always be high. When the subject of such a r ap sheet is a private citizen and when the information is

in the Government's control as a compilation, r ather than as a record of "what the Government is up

to," the privacy interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public

interest in disclosure is at its nadir. See Parts IV and V , supra. Such a disparity on the scales of justice

holds for a class of cases without regard to individual circumstances; the standard virtues of bright-

line rules are thus present, and the diﬃculties attendant to ad hoc adjudication ma y be avoided.

Accordingly , we hold as a categorical matter that a third party's request for law enforcement records

or information about a private citizen can reasonably be expected to invade that citizen 's privacy, and

that when the request seeks no "oﬃcial information " about a Government agency, but merely records

that the Government happens to be storing, the invasion of privacy is "unwarr anted." The judgment of

the Court of Appeals is reversed.

It is so ordered.

Footnotes

[ Footnote 1 ] See Fla. Stat. 943.053(3) (1987); Wis. Stat. 19.35 (1987-1988); and Okla. Stat., Tit. 51, 24A.8

(Supp. 1988).

[ Footnote 2 ] The brief ﬁled on behalf of Search Group, Inc., and other amici curiae contains the

following summary description of the dissemination policies in 47 States:

"Conviction data, although gener ally unavailable to the public, is often available to governmental non-

criminal justice agencies and even private emplo yers. In general, conviction data is far more available

outside the criminal justice system than is nonconviction data. B y contrast, in all 47 states

nonconviction data cannot be disclosed at all for non-criminal justice purposes, or ma y be disclosed only in narrowly deﬁned circumstances, for speciﬁed purposes." Brief for Search Group, Inc., et al. as

amici curiae 40 (footnotes omitted); see also Brief for Petitioner 27, n. 13.

A number of States, while requiring disclosure of police blotters and event-based information, deny

the public access to personal arrest data such as rap sheets. See Houston Chronicle Publishing Co. v.

Houston, 531 S. W. 2d 177 (Tex. Civ. App. 1975), aff 'd, 536 S. W. 2d 559 (Tex. 1976); Stephens v . Van

Arsdale, 227 Kan. 676, 608 P .2d 972 (1980).

[ Footnote 3 ] "The section was plagued with vague phr ases, such as that exempting from disclosure

`any function of the United States requiring secrecy in the public interest.' Moreover, even `matters of

oﬃcial record' were only to be made available to `persons properly and directly concerned' with the

information. And the section provided no remedy for wrongful withholding of information." EP A v.

Mink, 410 U.S. 73, 79 (1973).

[ Footnote 4 ] Department of Air F orce v. Rose, 425 U.S. 352, 360 (1976) (quoting S. Rep. No. 813, 89th

Cong., 1st Sess., 3 (1965)).

[ Footnote 5 ] Title 5 U.S.C. 552(a)(3) provides:

"Except with respect to the records made available under par agraphs (1) and (2) of this subsection,

each agency , upon any request for records which (A) reasonably describes such records and (B) is

made in accordance with published rules stating the time, place, fees (if an y), and procedures to be

followed, shall make the records promptly available to an y person."

[ Footnote 6 ] Section 552(a)(4)(B) provides:

"(B) On complaint, the district court . . . has jurisdiction to enjoin the agency from withholding agency

records and to order the production of an y agency records improperly withheld from the

complainant. In such a case the court shall determine the matter de novo, and ma y examine the

contents of such agency records in camera to determine whether such records or an y part thereof

shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the

burden is on the agency to sustain its action."

[ Footnote 7 ] Congress emplo yed similar language earlier in the statute to authorize an agency to

delete identifying details that might otherwise offend an individual's privacy:

"To the extent required to prevent a clearly unwarr anted invasion of personal privacy, an agency may

delete identifying details when it mak es available or publishes an opinion, statement of policy ,

interpretation, or staff manual or instruction." 552(a)(2).

[ Footnote 8 ] See 120 Cong. Rec. 33158-33159 and 34162-34163 (1974).

[ Footnote 9 ] See 132 Cong. Rec. 27189 and 31414-31415 (1986). Although the move from the "would

constitute" standard to the "could reasonably be expected to constitute" standard represents a

considered congressional effort "to ease consider ably a Federal law enforcement agency's burden in

invoking [Exemption 7]," id., at 31424, there is no indication that the shift was intended to eliminate de

novo review in favor of agency deference in Exemption 7(C) cases. Rather, although district courts still

oper ate under the gener al de novo review standard of 5 U.S.C. 552(a) (4)(B), in determining the impact

on personal privacy from disclosure of law enforcement records or information, the stricter standard

of whether such disclosure "would" constitute an unwarr anted invasion of such privacy gives way to

the more ﬂexible standard of whether such disclosure "could reasonably be expected to "constitute

such an invasion.

[ Footnote 10 ] "The duty to compile such records is set forth in 28 U.S.C. 534. That section provides that

the Attorney Gener al is to `acquire, collect, classify , and preserve identiﬁcation, criminal

identiﬁcation, crime and other records' and that he is to `exchange these records with, and for the

oﬃcial use of, authorized oﬃcials of the F ederal Government, the States, cities, and penal and other

institutions.' Signiﬁcantly , however, the section goes on to provide that `[t]he exchange of records

authorized by [the section] is subject to cancellation if dissemination is made outside the receiving

departments or related agencies.' Section 534(b).

"This Court is satisﬁed that pursuant to the above section, the information acquired and collected b y

the Attorney General may be released only to the agencies, organizations or states set forth in that

section, and ma y not be released to the gener al public. Thus, the information is `[s]peciﬁcally

exempted from disclosure by statute [28 U.S.C. 534]' which `requires that the matters be withheld

from the public in such a manner as to leave no discretion on the issue.' The Court therefore concludes

that if the defendants have collected and maintained a r ap sheet related to Charles Medico, that rap

sheet is exempt from disclosure pursuant to Exemption 3." App. to Pet. for Cert. 55a.

[ Footnote 11 ] "It seems highly unlik ely that information about offenses which ma y have occurred 30

or 40 years ago, as in the case of William Medico, would have an y relevance or public interest. The

same can be said for information relating to the arrest or conviction of persons for minor criminal

offenses or offenses which are completely unrelated to anything now under consideration by the

plaintiffs. That information is personal to the third party (Charles Medico), and it if [sic] exists, its

release would constitute `a clearly unwarr anted invasion of personal privacy.' The Court concludes

therefore that those documents and that information are exempt from disclosure pursuant to 5 U.S.C.

552(b)(6) and (7)(C)." Id., at 57a. [ Footnote 12 ] Because Exemption 7(C) covers this case, there is no occasion to address the application

of Exemption 6.

[ Footnote 13 ] The question of the statutory meaning of privacy under the FOIA is, of course, not the

same as the question whether a tort action might lie for invasion of privacy or the question whether

an individual's interest in privacy is protected b y the Constitution. See, e. g., Cox Broadcasting Corp. v .

Cohn, 420 U.S. 469 (1975) (Constitution prohibits State from penalizing publication of name of

deceased rape victim obtained from public records); Paul v . Davis, 424 U.S. 693, 712 -714 (1976) (no

constitutional privacy right affected by publication of name of arrested but untried shoplifter).

[ Footnote 14 ] See Karst, "The Files": Legal Controls Over the A ccuracy and A ccessibility of Stored

Personal Data, 31 Law & Contemp. Prob. 342, 343-344 (1966) ("Hardly an yone in our society can keep

altogether secret very man y facts about himself. Almost every such fact, however personal or

sensitive, is known to someone else. Meaningful discussion of privacy , therefore, requires the

recognition that ordinarily we deal not with an interest in total nondisclosure but with an interest in

selective disclosure").

[ Footnote 15 ] See W arren & Br andeis, The Right to Privacy , 4 Harv. L. Rev. 193, 198 (1890-1891) ("The

common law secures to each individual the right of determining, ordinarily , to what extent his

thoughts, sentiments, and emotions shall be communicated to others. . . . [E]ven if he has chosen to

give them expression, he generally retains the power to ﬁx the limits of the publicity which shall be

given them"). The common law recognized that one did not necessarily forfeit a privacy interest in

matters made part of the public record, albeit the privacy interest was diminished and another who

obtained the facts from the public record might be privileged to publish it. See Cox Broadcasting Corp.

v. Cohn, 420 U.S., at 494 -495 ("[T]he interests in privacy fade when the information involved already

appears on the public record") (emphasis supplied). See also Restatement (Second) of T orts 652D, pp.

385-386 (1977) ("[T]here is no liability for giving publicity to facts about the plaintiff's life that are

matters of public record, such as the date of his birth . . . . On the other hand, if the record is one not

open to public inspection, as in the case of income tax returns, it is not public and there is an invasion

of privacy when it is made so"); W. Keeton, D. Dobbs, R. K eeton, & D. Owens, Prosser & K eeton on Law

of Torts 117, p. 859 (5th ed. 1984) ("[M]erely because [a fact] can be found in a public recor[d] does not

mean that it should receive widespread publicity if it does not involve a matter of public concern ").

[ Footnote 16 ] See W ebster's Third New International Dictionary 1804 (1976). See also A. Breck enridge,

The Right to Privacy 1 (1970) ("Privacy, in my view, is the rightful claim of the individual to determine

the extent to which he wishes to share of himself with others. . . . It is also the individual's right to

control dissemination of information about himself "); A. Westin, Privacy and Freedom 7 (1967)

("Privacy is the claim of individuals . . . to determine for themselves when, how , and to what extent

information about them is communicated to others"); Project, Government Information and the Rights

of Citizens, 73 Mich. L. Rev. 971, 1225 (1974-1975) ("[T]he right of privacy is the right to control the ﬂow

of information concerning the details of one's individuality").

[ Footnote 17 ] The Court of Appeals reversed the District Court's holding in favor of petitioners on the

Exemption 3 issue, and petitioners do not renew their Exemption 3 argument before this Court. See

Pet. for Cert. 6, n. 1.

[ Footnote 18 ] See S. Rep. No. 813, 89th Cong., 1st Sess., 7 (1965) ("The authority to delete identifying

details after written justiﬁcation is necessary in order to be able to balance the public's right to know

with the private citizen 's right to be secure in his personal affairs which have no bearing or effect on

the general public. F or example, it ma y be pertinent to know that unseasonably harsh weather has

caused an increase in public relief costs; but it is not necessary that the identity of an y person so

affected be made public"); H. R. Rep. No. 1497, 89th Cong., 2d Sess., 8 (1966) ("The public has a need to

know, for example, the details of an agency opinion or statement of policy on an income tax matter,

but there is no need to identify the individuals involved in a tax matter if the identiﬁcation has no

bearing or effect on the gener al public"). Both public relief and income tax assessments - lik e law

enforcement - are proper subjects of public concern. But just as the identity of the individuals given

public relief or involved in tax matters is irrelevant to the public's understanding of the Government's

operation, so too is the identity of individuals who are the subjects of r ap sheets irrelevant to the

public's understanding of the system of law enforcement. For rap sheets reveal only the dry ,

chronological, personal history of individuals who have had brushes with the law , and tell us nothing

about matters of substantive law enforcement policy that are properly the subject of public concern.

[ Footnote 19 ] Davis, The Information A ct: A Preliminary Analysis, 34 U. Chi. L. Rev . 761, 765 (1966-

1967), quoted in JUSTICE SCALIA's dissenting opinion in United States Department of Justice v . Julian,

486 U.S. 1, 17 (1988).

[ Footnote 20 ] Cf. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of

Information A ct, 9 J. Legal Studies 775, 777 (1980) ("The act's indexing and reading-room rules indicate

that the primary objective is the elimination of `secret law .' Under the FOIA an agency must disclose

its rules governing relationships with private parties and its demands on private conduct"); Kronman,

The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Studies 727, 733 (1980) ("The act's

ﬁrst and most obvious goal (reﬂected in its basic disclosure requirements) is to promote honesty and

reduce waste in government by exposing oﬃcial conduct to public scrutin y"); Comment, The Freedom

of Information Act's Privacy Exemption and the Privacy A ct of 1974, 11 Harv. Civ. Rights-Civ . Lib. L.

Rev. 596, 608 (1976) ("No statement was made in Congress that the A ct was designed for a broader purpose such as making the government's collection of data available to anyone who has any socially

useful purpose for it. F or example, it was never suggested that the FOIA would be a boon to academic

researchers, by eliminating their need to assemble on their own data which the government has

already collected").

[ Footnote 21 ] In fact, in at least three cases we have speciﬁcally rejected requests for information

about private citizens. See CIA v . Sims, 471 U.S. 159 (1985); FBI v. Abramson, 456 U.S. 615 (1982); United

States Department of State v . Washington Post Co., 456 U.S. 595 (1982).

[ Footnote 22 ] Our willingness to permit categorical balancing in Robbins itself was a departure from

earlier dicta. In NLRB v . Sears, Roebuck & Co., 421 U.S. 132, 162 -165 (1975), we decided not to decide an

Exemption 7 issue. In so doing, we responded to the NLRB Gener al Counsel's argument that "once a

certain type of document is determined to fall into the category of `investigatory ﬁles' the courts are

not to inquire whether the disclosure of the particular document in question would contr avene any of

the purposes of Exemption 7." Id., at 163 (emphases in original). In other words, the Gener al Counsel

argued for categorical balancing throughout Exemption 7. We rejected this argument: "The legislative

history clearly indicates that Congress disapproves of those cases, relied on b y the General Counsel, . . .

which relieve the Government of the obligation to show that disclosure of a particular investigatory

ﬁle would contr avene the purposes of Exemption 7." Id., at 164. The legislative history cited, S. Conf.

Rep. No. 93-1200 (1974), is in fact not clear on the question whether categorical balancing ma y be

appropriate in Exemption 7 or elsewhere. In 1986, moreover, Congress amended Exemption 7(C) to

give the Government greater ﬂexibility in responding to FOIA requests for law enforcement records or

information. [489 U.S. 749, 778] Whereas previously the Government was required to show that

disclosure of a law enforcement record "would" constitute an unwarranted invasion of personal

privacy, under amended Exemption 7(C) the Government need only establish that production "could

reasonably be expected" to cause such an invasion. The amendment was originally proposed b y the

Senate which intended to replace a focus on the effect of a particular disclosure "with a standard of

reasonableness . . . based on an objective test." S. Rep. No. 98-221, p. 24 (1983). This reasonableness

standard, focusing on whether disclosure of a particular type of document would tend to cause an

unwarranted invasion of privacy , amply supports a categorical approach to the balance of private and

public interests in Exemption 7(C).

JUSTICE BLA CKMUN, with whom JUS TICE BRENNAN joins, concurring in the judgment.

I concur in the result the Court reaches in this case, but I cannot follow the route the Court tak es to

reach that result. In other words, the Court's use of "categorical balancing" under Exemption 7(C), I

think, is not basically sound. Such a bright-line rule obviously has its appeal, but I wonder whether it

would not run aground on occasion, such as in a situation where a rap sheet discloses a congressional

candidate's conviction of tax fraud ﬁve years before. Surely, the FBI's disclosure of that information

could not "reasonably be expected" to constitute an invasion of personal privacy , much less an

unwarranted invasion, inasmuch as the candidate relinquished an y interest in preventing the

dissemination of this information when he chose to run for Congress. [489 U.S. 749, 781] In short, I do

not believe that Exemption 7(C)'s language and its legislative history , or the case law, support

interpreting that provision as exempting all r ap-sheet information from the FOIA's disclosure

requirements. See H. R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966); S. Rep. No. 813, 89th Cong., 1st

Sess., 3, 9 (1965); Department of Air F orce v. Rose, 425 U.S. 352, 372 (1976); Lesar v . United States Dept.

of Justice, 204 U.S. App. D.C. 200, 214, n. 80, 636 F.2d 472, 486, n. 80 (1980).

It might be possible to mount a substantial argument in favor of interpreting Exemption 3 and 28

U.S.C. 534 as exempting all r ap-sheet information from the FOIA, especially in the light of the presence

of the three post-FOIA, enactments the Court mentions, ante, at 753. But the feder al parties before this

Court have abandoned the Exemption 3 issue they presented to the Court of Appeals and lost, and it

perhaps would be inappropriate for us to pursue an inquiry along this line in the present case.

For these reasons, I would not adopt the Court's bright-line approach but would leave the door open

for the disclosure of r ap-sheet information in some circumstances. Nonetheless, even a more ﬂexible

balancing approach would still require reversing the Court of Appeals in this case. I, therefore, concur

in the judgment, but do not join the Court's opinion. [489 U.S. 749, 782]

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