NARA preliminary analysis of privacy issues
NARA preliminary analysis of privacy issues
I. The exemption from disclosure on privacy grounds
A. The Nazi War Crimes Disclosure Act amends the Freedom of Information Act (FOIA) to require disclosure of classified "Nazi war criminal records," with certain exceptions:
- Section 3(b)(2)(A) of the Act allows an agency head to exempt from release "specific information, that would . . . constitute a clearly unwarranted invasion of personal privacy." In keeping with the fact that the Nazi War Crimes Disclosure Act, like the FOIA itself, is a disclosure statute, not a withholding statute, the exemptions are not mandatory.
- The term "clearly unwarranted invasion of personal privacy" is also used in the Freedom of Information Act Exemption 6, 5 U.S.C. § 552(b)(6). We can look to FOIA's extensive case law for an interpretation of what the term means and how to apply it to "specific information" in Nazi war criminal records.
B. Elements of FOIA Exemption 6 (personal privacy):
- Even to be considered for potential withholding, the information must be identifiable with a specific individual, not a large group of individuals or an organization.
- Once that threshold requirement is met, the question is whether the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." That answer depends upon the outcome of a balancing of the public's right to disclosure against the individual's right to privacy.
- First, is there a privacy interest to be protected? If there is no identifiable privacy interest to begin with, then no further analysis is needed: the information is disclosed.
- In what circumstances might there be no privacy interest? Although there are almost always exceptions, the general rules are: no privacy interest in information in the public domain; no privacy for dead people or for organizations, companies or corporations; no privacy expectation for federal employees in information regarding their employment status or duties.
- If a privacy interest exists, then you must identify the public interest, if any, in disclosure and weigh it against the privacy interest. If there is no public interest in disclosure, or if the privacy interest outweighs the public interest, then the invasion of privacy would be unwarranted and the information should be withheld.
- If the public interest outweighs the privacy interest, then the invasion of privacy would be warranted and the information should be disclosed.
- What constitutes "public interest"? For purposes of FOIA, the public's interest is in information that sheds light on an agency's performance of its statutory duties--i.e., it shows "what the government is up to." To be considered in the balancing test, the information asserted to be in the public interest must reveal something about the operations and activities of the federal government.
C. "Public interest" considerations raised by the Nazi War Crimes Disclosure Act:
- The Act expressly provides that in applying the other exemptions from release--those relating to national security concerns [Sec. 3(b)(2)(B)-(J)]--there is a "presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records." Sec. 3(b)(3)(A). Assertion of the national security exemptions also requires an agency head to make the determination that release of the exempted information "would be harmful to a specific interest identified in the exemption." Sec. 3(b)(3)(A).
- Although this presumption is not expressly applicable to the privacy exemption, such a presumption is implicit in the FOIA itself and the privacy exemption's balancing test requires that the public interest be factored into any determination to apply the exemption. Moreover, in conducting the balancing test, the courts have instructed that the "clearly unwarranted" language in the exemption weights the scales in favor of disclosure.
- The Supreme Court has emphasized that a core public interest embodied in the FOIA itself is "to hold the governors accountable to the governed," to inform the public of violations of the public trust. The legislative history of the Nazi War Crimes Disclosure Act and the National Security Advisor's tasking memorandum of February 22, 1999, make clear that this core purpose is integral to implementation of the Act. For example, Senator Leahy noted in his statement in support of the Act the need for "full disclosure by federal agencies about what our government knew, and when, about Nazi atrocities and the criminals who committed those atrocities."
Finally, it is important to remember that even if a privacy interest in withholding is found to outweigh a public interest in disclosure, FOIA requires release of all reasonably segregable non-exempt information in a record.
As processing of records proceeds, NARA will provide agencies with examples of records that will help in making these privacy determinations.
II. List to be provided by Office of Special Investigations, DOJ - privacy issues
- The Justice Department's Office of Special Investigations (OSI) will be providing agencies with a list of approximately 60,000 names that can be used to search for responsive records. The bases for the list will be (1) the names of SS officers and (2) individuals named by the United Nations War Crimes Commission. Although both of these lists are open and available to the public, the OSI-compiled list will likely be supplemented by names of individuals who may not have been publicly associated with criminal activity but whose names could help lead to records encompassed by the Act.
- Accordingly, the OSI-compiled list should be characterized in a way that avoids having the government unfairly stigmatize persons who have never been charged with or publicly accused of a crime. One approach would be to designate the list as a "key word list for conducting searches" or similar title that avoids an implication of wrongdoing on the part of each and every individual who is on the list.
III. Potential Privacy Act issues
NARA has identified at least two areas in which implementation of the
Nazi War Crimes Disclosure Act could be impacted by the provisions of the Privacy Act:
(1) The Office of Special Investigations has asked that agencies, once
they have located responsive records, pass the records to OSI for its review and
determination whether the records fit within the Nazi War Crimes Disclosure Act's
exclusion from disclosure for records "related to or supporting any active or
inactive investigation, inquiry, or prosecution" by OSI. In anticipation that at
least some responsive records may be located in Privacy Act systems of records, agencies
should check their Privacy Act routine uses to see whether a disclosure of those records
to OSI would fit within an existing published routine use. Another way to deal with such a
disclosure would be for OSI to make a written request to the agencies that comports with
the requirements of the Privacy Act's subsection (b)(7) (allowing an agency to
disclose Privacy Act-protected records for a specified law enforcement purpose). Yet
another approach could be for agencies to publish a specialized routine use for purposes
of implementing the Nazi War Crimes Disclosure Act, as discussed immediately below.
- (2) Agencies that wish to withhold information in responsive records under one of the exemptions in the Nazi War Crimes Disclosure Act at Section 3(b)(2) will need concurrence by the Interagency Working Group before an exemption is invoked and information is withheld. In order to get the IWG's concurrence, agencies will need to provide those records to the IWG for its review. It is likely that at least some of these records will come from Privacy Act systems of records. It is unlikely, however, that agencies have an already-published routine use that would allow such a disclosure from the agencies to the IWG. Therefore, agencies should consider publishing a new routine use to cover such a disclosure. Such a new routine use could also be written in such a way to permit the disclosure discussed above in point (1).
Agencies are strongly advised to consult with their General Counsel's Offices, and with the Office of Management and Budget and the Department of Justice, on strategies to deal with the potential Privacy Act problems noted in the foregoing two points.
Finally, agencies will be turning over their declassified records to NARA to be made available to the public under the Nazi War Crimes Disclosure Act. NARA believes that disclosure of such records to NARA by the agencies is permitted under subsection (b)(6) of the Privacy Act.
Office of General Counsel May 1999
National Archives at College Park