Opinion for the Court filed by Circuit Judge WALD.
Dissenting opinion filed by Circuit Judge TAMM.
WALD, Circuit Judge:
This appeal involves a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, by the Washington Post Company ("Post") for information concerning possible conflicts of interest of scientific consultants employed by the National Cancer Institute (NCI). The Post seeks to compel disclosure, for each consultant, of (1) a list of his non-federal employment and (2) a list of organizations in which the consultant has financial interests related to his consulting duties. The government claims that the information is exempt from disclosure under Exemptions 4 and 6 to FOIA, 5 U.S.C. § 552(b)(4), (6). The district court, on cross-motions for summary judgment, held that the information was not "commercial or financial information" within the meaning of Exemption 4, but that the information could be withheld under Exemption 6 because disclosure would constitute a "clearly unwarranted invasion of personal privacy."
The district court relied heavily on the reasoning of Association for Women in Science v. Califano, 566 F.2d 339 (D.C.Cir.1977) (Women in Science), where we held that essentially identical information was privileged from discovery under the Federal Rules of Civil Procedure. We conclude, however, that its reliance on Women in Science was inappropriate because discovery of information under the Federal Rules and disclosure under FOIA Exemption 6 are independent questions involving different issues. We then perform the balancing of disclosure interests against privacy interests mandated by Exemption 6, and find that the conflict-of-interest information involved in this case is not exempt from disclosure. Finally, we hold that the requested list of consultants' financial interests is "financial" information within the meaning of Exemption 4 and remand for a factual determination of whether release of this information is likely to impair the government's ability to obtain similar information in the future.
NCI is a division of the National Institutes of Health (NIH), which is in turn administered by appellee Department of Health and Human Services (HHS).
Pursuant to Executive Order No. 11,222,
On February 14, 1980, the Post requested copies of the statements of employment and financial interests filed by members (except ex officio members) of NCI's advisory boards and committees. HHS refused the request, relying on FOIA Exemption 6, 5 U.S.C. § 552(b)(6), which exempts from disclosure:
The Post appealed the decision to the Assistant Secretary of HHS for Public Health and Surgeon General, who affirmed the refusal to disclose. Having exhausted its administrative remedies, the Post filed suit to compel disclosure on July 8, 1980.
After a status call, the district court ordered the parties to file cross-motions for summary judgment. The government, in its motion for summary judgment, again relied on Exemption 6 and added a claim that the requested data was confidential financial information within the meaning of Exemption 4, 5 U.S.C. § 552(b)(4), which permits withholding of:
The Post argued with respect to Exemption 6 that the public interest in disclosure of conflicts of interest outweighs the consultants' privacy interests.
The government agreed before decision to release the names of NCI consultants, their federal employment, the results of HHS's review of Form 474, and the name of the reviewing official.
The district court held that Exemption 4 did not apply because it was not designed to protect "personal financial information as distinguished from economic data relating to corporations or other business entities."
In this appeal, the Post argues that Women in Science is not controlling and that the balancing of interests required by Exemption 6 mandates disclosure. The government contests that proposition and also argues that the disputed information is both "financial" and "confidential," and hence is covered by Exemption 4.
II. EXEMPTION 6
A. The Limited Relevance of Discovery Rules for Exemption 6
It is well established that information that is exempt from disclosure to the general public under FOIA may nevertheless be subject to discovery.
As an initial matter, neither the text nor the legislative history of FOIA suggests that the existence of a discovery privilege should control the determination of whether withholding is warranted under Exemption 6. Exemption 6 does not refer explicitly to evidentiary privileges. In contrast, Exemption 4 exempts "commercial or financial information obtained from a party and privileged or confidential." 5 U.S.C. § 552(b)(4) (emphasis added). Similarly, Exemption 5 permits withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." Id. § 552(b)(5). That Congress expressly included evidentiary privileges in Exemptions 4 and 5 but not in Exemption 6 suggests that it did not intend privilege doctrine to control withholding of information under Exemption 6.
Moreover, even though Exemption 5 directly implicates discovery doctrine, the Supreme Court has stated that "discovery rules can only be applied under Exemption 5 by way of rough analogies." EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973). In part, this is because FOIA does not "permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant." Id. And this court recently rejected a claim that an intra-agency report which is privileged from discovery is therefore exempt from disclosure:
Exemption 6, then, requires an independent inquiry into whether withholding is proper. Accord Moore-McCormack Lines v. I. T. O. Corp., 508 F.2d 945 (4th Cir. 1974); cf. Baldrige v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (treating the availability of FOIA Exemption 3 and the existence of a discovery privilege as separate issues). We must still consider, however, how closely analogous the reasoning in Women in Science regarding the confidential report privilege is to the reasoning required to find a "clearly unwarranted invasion of personal privacy" under Exemption 6.
Although both Exemption 6 and the confidential report privilege involve balancing, there the similarity stops. Under Exemption 6, we must balance the interest of the general public in disclosure against the privacy rights of individuals. Under the confidential report privilege, we must balance the individual litigant's need for information against the government's need to obtain the information in the future.
Considering first the interests in disclosure, the particular need of the requester is irrelevant under FOIA,
Furthermore, in FOIA cases "the presumption in favor of disclosure is at its zenith." Grolier, Inc. v. FTC, 671 F.2d 553, 556 (D.C.Cir.1982) (per curiam) (Exemption 5), cert. granted, 51 U.S.L.W. 3353 (U.S. Nov. 9, 1982). Thus, even if Exemption 6 and the confidential report privilege involved the same interests, the balancing of those interests might come out differently under Exemption 6.
As for the interests supporting nondisclosure, factors that are relevant in discovery actions can be irrelevant under FOIA and vice-versa. A critical factor in our decision in Women in Science was our belief that disclosure might impair the government's ability to acquire similar information in the future. See 566 F.2d at 346. That factor carries no weight under Exemption 6, which focuses on individual privacy interests. Conversely, the privacy interests of persons who provide information to the government do not directly affect the government's confidential report privilege but are central to an Exemption 6 analysis. Furthermore, the availability of information from other sources weakens the case for discovery but, if anything, strengthens the case for FOIA disclosure by suggesting that disclosure will not seriously invade personal privacy.
In short, privilege against discovery and exemption under Exemption 6 are separate issues and require separate analysis. It may at first blush seem incongruous that information which plaintiffs in Women in Science could not obtain in 1977 despite specific need for it can now be disclosed to the general public under FOIA. However, even putting aside the effects of intervening legislation — notably the Ethics in Government Act of 1978, discussed below — on the rationale of Women in Science, any incongruity is a product of congressional intent as reflected in different statutes with different tests for disclosure. Perhaps the plaintiffs in Women in Science should have pursued the information they desired under FOIA,
B. The Exemption 6 Balancing of Interests
Exemption 6 permits withholding of "personnel and medical files and similar files" whose disclosure would be "a clearly unwarranted invasion of personal privacy." The analysis proceeds in two stages. First, we must determine whether the information on Form 474 is contained in personnel, medical, or "similar" files. If so, we must determine whether disclosure would constitute "a clearly unwarranted invasion of personal privacy."
The first stage is fairly minimal and is easily satisfied in this case. All information which "applies to a particular individual" is covered by Exemption 6, regardless of the type of file in which it is contained. United States Department of State v. Washington Post Co., 456 U.S. 595, ___, 102 S.Ct. 1957, 1961, 72 L.Ed.2d 358 (1982). This ensures that FOIA's protection of personal privacy is not affected by the happenstance of the type of agency record in which personal information is stored. Id. at ___, 102 S.Ct. at 1961. Each Form 474 is filled out by a particular consultant and thus meets the threshold criterion for coverage under Exemption 6.
In the second stage — determining whether disclosure is clearly unwarranted — we must balance the public interest in disclosure against the privacy interests of the consultants. Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). In performing this balance, we must keep in mind Congress's "dominant objective" to provide full disclosure of agency records. Id. at 361, 96 S.Ct. at 1599; see Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982); S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965) ("S.Rep."). Congress, however, also created nine "carefully structured" exemptions to FOIA "to protect specific confidentiality and privacy interests. But unless the requested material falls within one of these nine statutory exemptions, FOIA requires that ... [it] be made available on demand to any member of the general public." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 220-21, 98 S.Ct. 2311, 2316, 57 L.Ed.2d 159 (1978) (footnote omitted). Moreover, these exemptions are to be "narrowly construed." Rose, 425 U.S. at 361, 96 S.Ct. at 1599; see Washington Post Co. v. United States Department of State, 685 F.2d 698, 700 (D.C.Cir.1982); S.Rep. at 3 (FOIA establishes a "general philosophy of full disclosure unless information is exempted under clearly delineated statutory language") (emphasis added).
1. Privacy Interests
Turning to Form 474, we first consider whether disclosure would create an invasion of privacy at all and, if so, how serious an invasion. Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974).
The disputed portions of Form 474 require consultants to list their non-federal employment and any organizations in which the consultant, his spouse, minor children, partners, or organizations with which he is connected have financial interests that relate to his consulting duties. Notably, Form 474 requests only cursory information. For employment, consultants need only list their employer, the "kind of organization (e.g., Manufacturing, research, insurance)" it is, and the title or kind of position they hold.
Considering the employment information first, we believe that disclosure would be only a minimal invasion of privacy. As the Supreme Court recently noted, "employment history ... is not normally regarded as highly personal." United States Department of State v. Washington Post, 456 U.S. at ___, 102 S.Ct. at 1960; see Board of Trade v. Commodity Futures Trading Commission, 627 F.2d 392, 399 (D.C.Cir.1980) (occupations of sources of information "may [raise] some slight privacy interest"). In addition, although its brief discusses the privacy interest in Form 474's financial information, the government does not even attempt to explain why the information on consultants' non-federal employment raises privacy concerns.
The government also fails to demonstrate a substantial privacy interest in the limited
We conclude that release of the list in Form 474 of organizations in which consultants have financial interests, while constituting a greater invasion of privacy than release of the list of their non-federal employment, still does not amount to a serious invasion. It merits emphasis that consultants not only need not disclose dollar amounts, but must disclose only financial interests that relate to their consulting duties. While public knowledge of affiliation with some organizations may, in some circumstances, lead to embarrassment or harm,
Several pieces of evidence support this view. First, in response to a questionnaire mailed to NIH consultants by the plaintiffs in Women in Science, only 10% of respondents (7/69) stated that they would object to serving or having served on an advisory committee if a "complete list of your professional affiliations and financial holdings such as you provided to NIH" were made public.
Second, Executive Order 11,222 does not require that consultants' statements be held confidential — it at most permits the government to promise confidentiality.
Third, the consultants are given only a limited promise of confidentiality — the information can be disclosed "for good cause." That vague phrase could mean, for all the consultants know, that conflicts of interest will generally be made public. Yet the government has not suggested that this undefined and potentially broad exception to confidentiality has discouraged scientists from accepting consulting positions.
To be sure, the consultants' expectations of privacy were heightened by the government's pledge of confidentiality. Other things being equal, release of information provided under a pledge of confidentiality involves a greater invasion of privacy than release of information provided without such a pledge. On the other hand, to allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate. On balance, we believe that a government pledge of confidentiality, made in good faith and consistently honored, should generally be given weight on the privacy side of the scale in accord with its effect on expectations of privacy. Cf. Ditlow v. Shultz, 517 F.2d 166, 172 (D.C.Cir.1975) (footnote omitted) ("the absence of a governmental assurance of confidentiality ... would seem to undercut the privacy expectations protected by exemption 6"). However, such a pledge should not be given determinative weight where the public interest in disclosure is high and the privacy interest in the information would otherwise be low. See Ackerly v. Ley, 420 F.2d 1336, 1340 n.3 (D.C.Cir.1969) ("pledge of confidentiality ... can not, in and of [itself], override the Act"); Robles v. EPA, 484 F.2d 843, 846 (4th Cir.1973) (similar).
2. Disclosure Interests
In contrast to the limited privacy interests, the public has a singularly strong interest in disclosure of consultants' conflicts of interest. Scientific consultants determine, in large part, who receives roughly $1 billion per year in cancer research funds. While the peer review system provides the government with needed expert advice, it also has undeniable potential for occasional abuse. Unscrupulous consultants could promote the projects of organizations with which they are connected, recommend disapproval of the projects of competitors, or, to curry favor for their own proposals, recommend projects favored by other consultants.
The possibility of such conflicts is more than mere speculation. HHS's program of in-house review is itself evidence that conflicts of interest are a potential problem. Also, there have been recent allegations of and investigations into conflicts of interest on the part of NCI peer reviewers. See National Cancer Institute Contract and Procurement Procedures, 1981: Hearing Before the Senate Comm. on Labor and Human Resources, 97th Cong., 1st Sess. (June 2, 1981) ("NCI Hearing"). For example, a 1978 investigation by HEW (the predecessor agency to HHS) into the relationship between NCI and a particular contract grantee, while it found no violation of federal conflict-of-interest standards, noted the "close relationship" between NCI officials and the grantee, and expressed concern that NCI consultants "serve in several roles which ... are difficult to compartmentalize ... [and which] create an appearance of a conflict which could affect scientific judgment."
One hopes, of course, that HHS's in-house review is rigorous enough to catch any abuses. But the purpose of FOIA is to permit the public to decide for itself whether government action is proper. Congress was all too aware of the "[i]nnumerable times" that agencies had withheld information under prior law "only to cover up embarrassing mistakes or irregularities." S.Rep. at 3. FOIA was designed to prevent such incidents and establish instead "[t]he right of the individual to be able to find out how his government is operating." H.R.Rep., supra note 23, at 6, 1966 U.S.Code Cong. & Ad.News at 2423.
In sum, when the strong interest in disclosure of potential abuses of official position is balanced against the consultants' relatively slight privacy interest in the limited information required by Form 474, we have no trouble concluding that disclosure is not "clearly unwarranted."
III. EXEMPTION 4
Exemption 4 authorizes withholding of "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552
A. Applicability of Exemption 4 to Personal Financial Information
We do not see, nor has the government explained, how the list of non-federal employment on Form 474 can be "commercial or financial information." As for the list of financial interests, it was certainly "obtained from a person," but the parties dispute whether it is "financial" information within the meaning of Exemption 4. The district court held that it was not because the Exemption "does not cover personal financial information as distinguished from economic data relating to corporations or other business entities."
The statutory language is not, on its face, restricted to commercial as opposed to personal financial information. The reference to trade secrets and commercial information suggests that business information was Congress's primary concern. On the other hand, to limit "financial information" to "commercial financial information" would all but read "and financial" out of the statute. On balance, we believe that the plain language of Exemption 4 covers all financial information, despite the apparent commercial focus of the Exemption.
The legislative history also suggests that Exemption 4 covers personal financial information. The House and Senate reports are silent on the meaning of "commercial or financial"; apparently because they refer to an earlier version of the statute that covered all privileged or confidential information. See Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 789-90 (1967); Board of Trade, 627 F.2d at 403 nn. 76-77. But the Senate, at least, expressly contemplated that personal information would be covered by Exemption 4. The Senate Judiciary Committee altered an earlier draft covering information "obtained from the public" to read "obtained from any person," and explained the change as follows:
S.Rep. at 2 (emphasis added).
Our cases are in accord. In Rural Housing Alliance v. United States Department of Agriculture, 498 F.2d 73, 78 (D.C.Cir.1974), we held:
Subsequent Exemption 4 cases have not undercut this holding. The district court relied on National Parks II, 547 F.2d at 685, where we questioned in dictum whether "personal privacy rights [are] a relevant concern under the fourth exemption." But in that case, all parties agreed that the information was "financial." Id. at 677. At issue was whether personal privacy rights were a factor in deciding whether the admittedly financial information was also "confidential." Thus, the district court's reliance on National Parks II was misplaced.
It remains to consider whether a list of organizations in which one has financial interests, without dollar amounts, is "financial" information. Lacking guidance in the legislative history, we must give the term "financial" its "ordinary meaning." Board of Trade, 627 F.2d at 403 (footnote omitted). In our view, the list of organizations required by Form 474 is within the common understanding of the term "financial." Indeed, we cannot think of any description of that information that would not use the word "financial" or a synonym.
B. The Meaning of "Confidential" Under Exemption 4
The remaining issue is whether the list of financial interests is "privileged or confidential." The government has not asserted that Form 474 is "privileged" within the meaning of Exemption 4.
1. The Limited Relevance of Discovery Rules
As with Exemption 6, we must first consider the relevance of our decision in Women in Science finding Form 474 to be privileged against discovery. Our analysis in Part II.A of the relevance of discovery rules to Exemption 6 applies in large part to the confidentiality aspect of Exemption 4 as well.
Once again, the existence of a discovery privilege does not preclude the courts from making an independent decision on whether withholding is permitted by FOIA. Rather, the question is whether the reasoning of Women in Science is so closely analogous to Exemption 4 reasoning as to be controlling as a practical matter. The answer is certainly no. First, the confidential report privilege at issue in Women in Science required a balancing of litigants' need for information against government interests served by confidentiality. In contrast, Exemption 4 contemplates an objective, largely non-balancing analysis of whether information is confidential. Also, to the extent that Exemption 4 requires balancing, the interests favoring disclosure — as under Exemption 6 — are different for discovery and FOIA. In this case, because of the particular privilege involved in Women in Science, the interests favoring nondisclosure admittedly overlap to a degree. However, this need not be true for other privileges, and even in this case, the partial overlap does not make Women in Science controlling.
We also caution, in case the issue is raised on remand, against an automatic assumption that because Form 474 was held to be privileged under Rule 26(b)(1), it is also privileged under Exemption 4. Neither this nor any other circuit, to our knowledge, has considered the meaning of "privileged" under Exemption 4.
We expect, under Exemption 4 as under Exemption 5, that discovery rules will provide only rough analogies, and that a particular privilege should be incorporated only after careful consideration of the language and legislative history of Exemption 4, its relationship to other exemptions, and the general disclosure mandate of FOIA. We express no view on the outcome of that analysis for the confidential report privilege relied on in Women in Science.
2. The Test for Confidentiality
Under the standard test in this circuit, commercial or financial information is "confidential" under Exemption 4 if disclosure is likely "(1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (National Parks I) (footnote omitted).
In this case, the government concedes that disclosure will not cause competitive harm,
As an initial matter, it might be thought that since consultants must complete Form 474, the government's ability to obtain information cannot be impaired. National Parks I supports this view. We stated:
Id. at 770 (emphasis in original). In contrast, in Women in Science, we noted that:
566 F.2d at 346 (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974)).
In our view, whether disclosure is mandatory is certainly a factor in deciding whether the government's access to information is likely to be impaired. If the government can enforce the disclosure obligation, and if the resultant disclosure is likely to be accurate, that may be sufficient to prevent any impairment. In this case, the government can readily enforce the disclosure duty. But, if only because Form 474 leaves room for interpretation of which financial interests "relate directly or indirectly to your
Turning finally to the likelihood of impairment, the government relies primarily on our statement in Women in Science, 566 F.2d at 346, that disclosure of the information on Form 474 "very likely would impair the Government's ability to acquire this information in the future." We, on the other hand, do not believe that this conclusion, drawn in the context of another case and based on the record in that case, is dispositive or even very helpful. In Women in Science, the district court, in the course of a one-page order, made an unexplained factual determination that disclosure "would impair the government's ability to acquire this information in the future,"
Even more important, in Women in Science, neither we nor the district court stated the extent to which the government's ability to obtain information would be impaired. A minor impairment cannot overcome the disclosure mandate of FOIA. Rather, the question must be whether the impairment is significant enough to justify withholding the information. Cf. Pacific Architects & Engineers Inc. v. Renegotiation Board, 505 F.2d 383, 385 (D.C.Cir.1974), where we remanded an Exemption 4 claim for a detailed factual inquiry into, among other things, "the extent to which disclosure ... will impair the government's ability to obtain necessary information of this type in the future."
This inquiry necessarily involves a rough balancing of the extent of impairment and the importance of the information against the public interest in disclosure. We do not decide today the details of the balancing process.
Apart from relying on the finding of impairment in Women in Science, the government produced no evidence except a conclusory affidavit by the HHS director of personnel policy. Thus, the government has not yet established its Exemption 4 claim. On the other hand, we cannot say that it will be unable to do so. The district court, of course, made no finding on the extent or even the fact of impairment. We therefore remand to give the government an opportunity to provide the detailed factual justification for withholding under Exemption 4 required by Pacific Architects & Engineers.
Release of the information on Form 474 will not constitute a clearly unwarranted invasion of personal privacy under Exemption 6. Whether the list of financial interests is confidential under Exemption 4 is a matter for factual determination on remand. The decision of the district court is reversed as to Exemption 6 and reversed and remanded as to Exemption 4.
TAMM, Circuit Judge, dissenting:
Few areas of the corpus of federal law have given rise to the need for a greater
The National Cancer Institute, a division of the National Institutes of Health, was established by the Congress to facilitate the Nation's struggle with cancer.
To assist the Director of the NCI in selecting and monitoring the recipients of federal funds, a variety of boards and committees exist that are staffed by experts in scientific fields. The most important of these boards, the National Cancer Advisory Board, is specifically empowered by Congress to "review applications for grants for research projects relating to cancer and to recommend to the Director [of the NCI] ... those applications which show promise of making valuable contributions to human knowledge with respect to the cause or prevention of cancer ...." 42 U.S.C. § 286b(b)(3) (Supp. III 1979). In like manner other committees sit, frequently on an ad hoc basis, to make recommendations regarding the manner in which the NCI funds should be allocated.
The power of the NCI advisory boards and committees is readily apparent. Although, as a technical matter, these groups make only "recommendations" to the Director with regard to grant applications, in practice these recommendations are the final word on fund allocation. As this court has earlier had occasion to note, these boards and committees "are composed of distinguished members of the medical and scientific communities whose function is to exercise `peer review' over pending grant applications." Association for Women in Science v. Califano, 566 F.2d 339, 341 (D.C.Cir.1977). I would also note that the compensation for the services rendered by the advisory board and committee members is comparatively nominal. Although individuals serving in such "special" government service do receive a per diem sum currently set at the pro rata GS-18 daily rate,
However one styles the functions of the NCI committees and boards, their collective power of resource allocation is great. The federal government, not unaware of the
To facilitate the submission of this statement, the Department of Health, Education and Welfare produced Form 474, entitled "Confidential Statement of Employment and Financial Interests." Appellant's Appendix (A.A.) at 21-22. As a precondition of employment, each member of an NCI advisory board or committee is required to complete Form 474. The critical section of that form is its Part II, which demands that each appointee to a special position list (1) all other federal government employment; (2) all non-federal employment; and (3) all "organizations in which you, your spouse, minor child, partner, or an organization with which you are connected have financial interests which relate directly or indirectly to your consultancy duties." Id. at 22. Officials of the federal government in turn review each completed Form 474, and, in Part III of that document, those officials are directed to conclude whether any conflict of interest appears to exist. Id.
Appointees to special government positions are specifically advised by a statement contained on Form 474 that the information submitted will be held in confidence and will not be subject to disclosure unless "good cause" is shown.
On February 14, 1980, appellant Washington Post Company requested that HHS provide access to the Form 474 completed by each member of an NCI advisory board
Having exhausted available administrative remedies, appellant filed suit in the district court to compel release of the disclosure forms. Although the government agreed to supply appellant with certain elements of the information requested, appellee adhered to its position of refusing to grant access to most of the material.
II. THE PARTIES' ARGUMENTS AND THE RULING IN THE DISTRICT COURT
A. The Parties' Positions
The government resists release of the disclosure forms through reliance on two of the FOIA's exemptions. HHS's principal argument is that Exemption 6, which permits the nondisclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,"
In response, appellant contends initially that the forms at issue are not "personnel ... [or] ... similar files" and thus are not entitled to any protection whatsoever under Exemption 6. In the alternative, appellant submits that the invasion of privacy involved is not, under all the circumstances, "clearly unwarranted"; accordingly, disclosure is required given the indisputable public interest in monitoring the award of $1 billion of federal funds. Appellant further contends in this regard that employees of the federal government, even special, part-time ones, have only a limited privacy interest in their investments and forms of outside employment.
Appellant demurs both to the categorization of the information contained on Form 474 as "commercial or financial" for the purposes of Exemption 4 and to the characterization of that information as "confidential" under the tests established by this court for the determination of such status. With regard to the first point, appellant contends that the information contained on Form 474 may not be deemed "financial" since that appellation has been limited to information that has a commercial nexus to the business or trade interests of the submitter. As for the "confidential" nature of the information, appellant contends that even complete disclosure of the Form 474 data would not in any way impair the government's ability to collect similar material in the future. Rather, appellant submits, the benefit conferred by the appointment to the NCI advisory boards would supply sufficient inducement to comply fully with the disclosure mandates of the government even with complete disclosure to the public of the Form 474 data.
B. The District Judge's Ruling
In granting the government's motion for summary judgment, the district judge relied exclusively on the personal privacy protection contained in Exemption 6. Exemption 4 was inapposite, he concluded, because its primary emphasis is on the protection of information used by an individual or corporation in a commercial enterprise; the most recent decisions of this court indicated, he suggested, that Exemption 4 was not intended to apply to purely "personal financial information."
Although he found the question of the applicability of Exemption 6 to the disclosure forms a close one, the district judge ruled that release of the data would constitute a clearly unwarranted invasion of privacy and upheld the government's position. Apparently assuming that the information contained in the Forms 474 constituted "personnel ... [or] ... similar files" for the purposes of Exemption 6, the trial judge correctly observed that the dispositive question in conducting the balancing required under that exemption is whether the severity of the privacy invasion outweighs the public interest in disclosure. Auguring in favor of release was the interest in public scrutiny of the Form 474 data as a means of discovering conflicts of interest among the members of the NCI advisory boards and committees. Favoring the individual's privacy interest, however, were (1) the fact the material had been obtained under a pledge of confidentiality, (2) the fact that personalized financial information has generally been held entitled to Exemption 6 protection, and (3) the pragmatic recognition that disclosure of the data might well discourage qualified appointees from accepting NCI advisory positions.
Although the district judge suggested that his resolution of the matter might have
There were, the trial court concluded, broad similarities between the balancing done in Women in Science and that required in the FOIA context. In both Women in Science and the case at bar, information was sought to determine whether federal grants were being awarded in a manner violative of conflict of interest standards. Similarly, in both cases those seeking the data could point to strong public purposes favoring disclosure; in Women in Science this purpose was the interest in full discovery to facilitate accurate rulings in litigation, while in the instant case it is the overriding policy of full disclosure underlying the FOIA. The only possible difference between the two cases, the district court concluded, was in the nature of the interests that were to be balanced against the public interest in disclosure. In Women in Science the counter-balancing interest was the government's interest in ensuring the confidentiality of information submitted to it, while in the present case the interest to be balanced against the public's right to know must, under the applicable precedents, be the individual's interest in privacy. The district court overcame this absence of absolute congruence by concluding that the individuals' interests in privacy were so closely tied to the government's interest in the maintenance of confidentiality "that they may be regarded as identical for purposes of practical analysis." Washington Post Co. v. HHS, M.O. at 3-4 n.9, A.A. at 35-36. The district judge accordingly concluded that the two cases were substantially on all fours and upheld the agency's refusal to release the information.
A. The Applicability of Exemption 6
Inasmuch as the government's primary, and the district court's exclusive, emphasis centered on the applicability of Exemption 6 to the disclosure forms, I turn first to a consideration of that provision.
Cases in this court
Until quite recently it was thought in this circuit that the threshold question whether the government records sought by a requester were "personnel," "medical," or "similar" files implicated a model of analysis comparable to that employed in determining whether disclosure of the information was under all of the circumstances "clearly unwarranted." In Board of Trade of Chicago v. Commodity Futures Trading Commission, 627 F.2d 392 (D.C.Cir.1980), for example, this court observed that there is an "essential interrelationship" between the question whether information meets the threshold test of inclusion under Exemption 6 as "personnel" or "similar" files and whether that information is properly subject to disclosure in light of the privacy exemption. Id. at 397. We there observed that both questions revolved around the common nucleus of legitimate, substantial privacy interests; both turned, we felt, in the first instance on whether disclosure of the information would compromise significant and reasonably founded privacy expectations.
A recent decision of the Supreme Court has, however, made all too clear that our determination of the standard properly applied in determining whether the threshold test of Exemption 6 coverage is met was erroneous. In United States Department of State v. Washington Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982), the Court branded our "intimate details" test an improper measure of when government records are "similar files." The Court agreed with the federal petitioners in that case and concluded that the "intimate details" test neither was mandated by Exemption 6 nor was an appropriate yardstick for determining the documents properly subjected to the "clearly unwarranted" balancing inquiry. Id. at 1959, 1961. Rather, the Court's scrutiny of the statutory language and the relevant history convinced it that "the phrase `similar files' was to have a broad, rather than a narrow, meaning." Id. at 1960. Accordingly, the Court held that all government records containing information that applies to or identifies a particular individual satisfy the threshold test of Exemption 6, regardless of the type of file in which the information is contained. Id. at 1961.
Applying the broad threshold test mandated by the Supreme Court, there can be, as the majority concedes, no doubt that the information sought by appellant is contained in "personnel ... [or] similar files" for the purposes of Exemption 6. It is clear that the Forms 474 contain information applicable and directly relating to the financial and employment affairs of individuals, and the majority's rejection of appellant's position on this issue is clearly correct.
I turn, then, to what is in this case the more difficult of the Exemption 6 inquiries — whether the disclosure of the forms would constitute a "clearly unwarranted invasion of personal privacy." The Supreme Court in Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976), has made clear that, in conducting the balancing required under Exemption 6, the court is to weigh the "individual's right of privacy against the preservation of the basic purpose of the Freedom of Information Act `to open agency action to the light of public scrutiny.'" As the district court correctly noted in its Memorandum in this case, the dispositive question in conducting this balancing is whether "the severity of the invasion of the personal privacy resulting from disclosure would outweigh the public interest in publication."
Appellant submits that the "paramount public interest in disclosure in order to instill public confidence in government" mandates disclosure of the financial and employment data at issue. Brief for Appellant at 21. I feel, however, that the district judge properly weighted this court's decision and remarks in Women in Science in upholding the government's refusal to release the information at issue. Although it is quite true that that case did not involve a balancing of interests employing the terminological conventions used in FOIA Exemption 6 cases, it is exalting form to heights unanticipated even by Rodin to suggest that our balancing there does not assist in the resolution of the case at bar.
Women in Science involved a balancing of the undisputed and quite significant need of private litigants for the information contained on the Forms 474 against the government's interest in the maintenance of confidentiality in those forms. As we there noted, the interests of the private litigants could hardly have been weightier; "[t]he existence of conflicts of interest ... is the linchpin of [the litigants'] argument, and it is difficult to imagine anything more probative of this issue than the Forms 474." 566 F.2d at 343. The government's interests, however, were held sufficient to ground the assertion of the "confidential reports" privilege against disclosure through civil discovery. The harm that was expected to result to the government from disclosure — including the fear that appointees to whom no commitment of confidentiality was given would be less than candid and the related realization that qualified candidates might well not apply in the absence of a promise of privileged classification — was held to outweigh the litigants' significant need for the materials. 566 F.2d at 346-47.
The similarities between the Women in Science situation and the one before us are, I feel, striking, even if the mechanism for the request of the information is distinct. I am able to discern no fewer than six factors that, in my opinion, militate against disclosure of the financial and employment material found on the Forms 474.
(1) The sensitive, personal nature of the information.
In its recent Washington Post decision, the Supreme Court observed that Congress' primary purpose in enacting Exemption 6 "was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." 102 S.Ct. at 1960. As Professor Kronman has recently had occasion to note in considering the scope of Exemption 6: "The first interest protected by the exemption (and judging from the legislative history of the act, the one its draftsmen had most clearly in mind) is the interest individuals have in concealing — or more neutrally, in retaining the power to selectively disclose — embarrassing facts about themselves."
The problem, of course, with these general statements of purpose — and, for that matter, with the hortatory observations of courts construing Exemption 6 quoted by the majority — is that they provide only limited guidance in determining whether, in any particular case, the disclosure requested
It is rather easy to formulate the question that must be answered in every Exemption 6 case: the court must determine whether the severity of the invasion of privacy outweighs the public interest in disclosure. While this question may be succinctly stated, it defies, I believe, an attempt at reduction to a neat, concise, and well-focused balance. Rather, the attempt to reduce the factors allegedly germane in the Exemption 6 context appears to me to be an untenable effort to transform the fluid idea of a "clearly unwarranted" invasion of privacy into a rigid ideology that might result in the disclosure of even indisputably personal information where a particular government party is unable to fit its round pegs into the square holes established by this court. Indeed, I can think of few areas in the corpus of federal law in which the time-proven axiom ex facto jus oritur — "out of facts spring the law" — is any more apposite.
The focus of this and every other court in an Exemption 6 case must be on the respective public and private interests at stake. See Washington Post, 102 S.Ct. at 1960. After carefully studying these interests, I am compelled to conclude that the district judge was eminently correct in upholding the government's claims that Exemption 6 grounded nondisclosure of the Forms 474. For many, if not most, individuals details of personal financial strategies are intensely personal matters. Few individuals publicize, at least voluntarily, the scope of their investments; rather, such matters are typically maintained with the greatest of privacy. Similarly, for a variety of motives, reasonable, law-abiding citizens may be reluctant to disclose their employers; indeed, it is not unreasonable to surmise that that might particularly be the case where the individuals perform ad hoc consulting functions, as undoubtedly do many of those who submit Form 474 to the NCI. Any one of us can easily imagine circumstances under which disclosure of the contours of our employment relationships or of the details of our personal investments — or those of our families — would prove highly embarrassing; precisely the same values and concerns obtain with regard to the data submitted on the Forms 474. As Professor Kronman's observations noted above make abundantly clear, these concerns of embarrassing revelations are at the heart of the personal privacy exemption to the FOIA.
Thus, I demur strongly to the majority's contention that the revelation of the employment and financial data in question would infringe only minor and insignificant privacy interests of the appointees. The implicit basis of this court's decision in Women in Science was the conclusion that the data at issue partook of a sensitive, personal nature that would lead reasonable individuals to desire that the information not be disclosed. We reached that conclusion in Women in Science notwithstanding the fact that a poll conducted by appellants in that case indicated that eighty per cent of the NCI appointees would not have objected to the disclosure. Both appellant in the case at bar and, with respect, the majority miss the point of this poll, the accuracy of which no one appears to dispute: to argue that because four-fifths of those polled would not object to disclosure suggests that the infringement of privacy interests would collectively be minor ignores totally the interests of the forgotten twenty per cent. It is beyond any cavil that Exemption 6 was drafted and enacted to protect against the disclosure of embarrassing information; that eighty per cent of the appointees apparently are not in a position to be embarrassed is, in my opinion, utterly irrelevant to the determination of whether
When one combines the fact that many of the appointees apparently would object to the disclosure of the Form 474 data with the fact that the government promised all of the appointees that the information would not be disclosed without "good cause," see infra pp. 278-279, the error committed by the majority in declining to recognize the applicability of Exemption 6 to the data is manifest. Thus, even if the majority is correct in straitjacketing the Exemption 6 inquiry to the public interests favoring disclosure ignoring those interests of the public militating against release, I cannot agree that disclosure of the information is proper. Although I could further articulate the depths of my disagreement with the majority's conclusions regarding the importance of the privacy interests implicated by the Form 474 data, I need not belabor the point: financial and employment information of the type at stake on the Forms 474 implicates important privacy interests that carry significant weight on the Exemption 6 scales.
Moreover, we should not forget — as I believe the majority conveniently does — that the submitter of the Form 474 data does not provide information regarding only his own financial affairs. Rather, he is directed to provide a listing of all organizations the interests of which might relate to his consultancy duties, and in which his spouse, child, partner, or affiliated organization has an interest. That the invasion of privacy affects not simply the provider of the information, but his or her family as well, further militates, in my opinion, against disclosure.
(2) The pledge of confidentiality.
Courts faced with difficult issues arising under the FOIA have frequently ventilated the effect of a government commitment of confidentiality made to a submitter of information. On one hand, it is clear that a promise of confidential treatment is a "factor to be considered" in determining whether release of material is "clearly unwarranted." Robles v. EPA, 484 F.2d 843, 846 (4th Cir. 1973); see Ditlow v. Shultz, 517 F.2d 166, 172 & n.22 (D.C.Cir.1975). On the other hand, it is equally clear that such a promise cannot in and of itself override the disclosure mandate of the FOIA. Ackerly v. Ley, 420 F.2d 1336, 1339 n.3 (D.C.Cir.1969); see Legal Aid Society of Alameda County v. Shultz, 349 F.Supp. 771, 776 (N.D.Cal.1972) (Exemption 3 context). In each case the court must determine whether Exemption 6 was properly invoked in light of all the surrounding circumstances. Any other rule would permit the federal government's printing press to circumvent the clear disclosure directive of the Act.
Appellant notes that the commitment of confidentiality made in the instant case was not absolute; rather, the implementing regulations, and the Form 474 itself, made clear that the information submitted could be disclosed by the government for "good cause shown." 5 C.F.R. § 535.410 (1981); Form 474, A.A. at 21. This limited privilege of disclosure without doubt lessens somewhat the expectation of privacy that those who submitted the forms could reasonably maintain. Yet again, this court should, I believe, be mindful of the language and reasoning employed by the Women in Science court in gauging the effect of the identical commitment of confidence. There, we observed that the representations of the government are significant because "the public should be able to expect its government to honor obligations made to induce full and accurate information." Women in Science, 566 F.2d at 344 n.21; accord, National Parks and Conservation Association v. Morton, 498 F.2d 765, 768 (D.C.Cir.1974) (Exemption 4 context). Although the court is, of course, now considering the Form 474 information with regard to the applicability of Exemption 6, I am of the opinion that the commitment should be accorded similar deference in that context.
In determining the efficacy of a pledge of confidentiality in a given case, it will usually be necessary to examine all the surrounding
On the contrary, this situation is one in which the providers of the data might well have placed considerable reliance on the promise of confidentiality. The advisory board and committee members serve as part-time employees of the federal government and presumably could have declined the proffered opportunity to serve if the "conditions" of employment were altered. In a case such as this one, it would thus appear that a pledge of confidence should be given great weight. The Women in Science court stated that the matter succinctly and correctly: private citizens should be able to rely on the promises of their government.
(3) The limited compensation afforded the advisory board members.
As I have suggested above, the part-time nature of the advisory board members' affiliation with the federal government militates against disclosure of the Form 474 data. I would view this case in a dramatically different light if the submitters of the data in question worked in a full-time capacity for the government and therefore received greater compensation for their federal work. In contrast to appellant's suggestion that the advisory board members are accorded "an important benefit" in appointment to an NCI committee, I believe that few individuals would participate on the NCI boards were a selfish commitment to personal gain the primary motivation. Although I harbor no delusions regarding the vagaries of human character, the reports of the demise of altruism are, I believe, exaggerated.
(4) The internal review scheme.
Further militating against the release of the Form 474 data is the existence of the NCI's own internal review scheme for ferreting out conflicts of interest. Appellant complains that such an in-house review inadequately protects against the abuses that may result from selfish practices by the advisory committee members; outside, independent scrutiny is necessary, it argues, to provide an additional check on the baser impulses of those committee or board members.
Although I concede, at least arguendo, that additional levels of scrutiny might well illuminate apparent or actual conflicts of interest overlooked by government officials, I do not share appellant's doubt of the competence and integrity of the federal employees who examine the Form 474. The important question in the current context is not, of course, whether scrutiny by the Washington Post Company or by any citizen might shed additional light on self-serving practices engaged in by advisory board members. The critical inquiry is rather whether the marginal gain from such scrutiny outweighs the significant privacy interests that would be infringed by disclosure of the Form 474 data. The existence of the in-house review process provides an important and vital constraint on the activities of advisory board and committee members. I am not convinced, however, that additional outside scrutiny would contribute significantly to the attainment of the desideratum of deterring conflicts of interest.
(5) The incongruity of the release of the Form 474 data with the result in Women in Science.
While the judicial decisions of the past few years have made it amply clear that the law of civil discovery and the doctrines applied under the FOIA do not form a seamless web, the interplay of the two modes of information provision cannot be ignored. In our 1977 Women in Science decision, we concluded that a privilege that inured to the government's benefit in the civil discovery context barred disclosure of the data contained on the Forms 474 in question. 566 F.2d at 346-48. Appellant argues in the case at bar, however, that the same documents found privileged from disclosure in that case must now be released under the FOIA. The practical conundurm to which this line of argument leads is obvious: appellant in effect contends that, if the Women in Science plaintiffs had sought the information under the FOIA instead of through the rules of civil procedure, they would have succeeded in securing the data.
I decline to adopt this view, notwithstanding the nostalgia it induces for the time spent at law school considering the minutia of the common law writ system. It is quite clear that, if the FOIA mandates the provision of the Form 474 information, our Women in Science opinion is hardly worth the paper on which it is printed in the Federal Reporter.
The majority conveniently ignores the incongruity today's result creates with our earlier Women in Science holding; with the magic wand of rhetoric the court simply concludes that the fact that precisely the same data was ruled privileged from discovery is inapposite to the Exemption 6 analysis. To be sure, it is true that the questions of availability of information from the government are distinct where the mode of provision is on one hand civil discovery and on the other the FOIA. See Playboy Enterprises v. Department of Justice, 677 F.2d 931, 936 (D.C.Cir.1982). It is also true, however, that the FOIA neither expands nor contracts existing discovery privileges, see Chamber of Commerce of the United States v. Legal Aid Society of Alameda County, 423 U.S. 1309, 1310-11, 96 S.Ct. 5, 6, 46 L.Ed.2d 14 (Douglas, Circuit Justice, 1975). Moreover, the approach adopted by the majority encourages, in my opinion, parties in litigation against the government to bypass the stipulated discovery process in favor of the FOIA. The majority's systematic refusal even to concede that the fact that information was deemed privileged from discovery has a bearing on whether the same information is exempt under the FOIA is, in my opinion, gravely in error. In effect, the court's message to parties involved in litigation against the government is clear: where disclosure of information is sought and the question of privilege is a close one, disregard the carefully crafted discovery rules applicable to the government and use the more liberal FOIA rules.
It is, of course, easy to criticize another's analytic approach in an area as complex as this one, and, like the majority, I will not attempt to delineate the precise relationship between the government's discovery privileges and the duties imposed by the FOIA. I would simply conclude that I for one am most hesitant to reach a result that would, in effect, eliminate the government's qualified privilege that we held in Women in Science attached to the Form 474 data.
(6) The "public harm" that might result from disclosure.
The primary thrust of appellant's attack on the district court's reasoning is that the judge improperly equated the government's interests in the flow of information and in attracting qualified candidates with the individual privacy interests of the Form 474 submitters. Appellant quite correctly notes that, in performing the Exemption 6 balancing, the government's interests are irrelevant; the balancing to be done is between the public's "need to know" and the relevant privacy interests at issue.
Perhaps the most troubling and difficult issue in the case at bar is the matter of the weight, if any, that should be accorded the fact that disclosure of the Form 474 data might well deter qualified applicants from accepting NCI advisory board positions and might inhibit the flow of accurate information to the government. As we noted in Women in Science, this is a matter of no small moment; even individuals with "nothing to hide" might be hesitant to accept an NCI position out of a fear that the details of their financial and work lives would provide the grist for a newspaper reporter's mill. As the district judge in the instant case sapiently observed, appellant's suggestion that only a few "undesirables" would resist the acceptance of an NCI position because of the general availability of the Form 474 data is as prescient as the argument that only the guilty would take the benefit of the testimonial privilege against self-incrimination. Washington Post Co. v. HHS, M.O. at 2, A.A. at 34.
At least one court has taken the position, however, that the "public harm" that might result from disclosure of information under the FOIA is an illegitimate concern where the scope of the personal privacy exemption is at issue.
Decisions of other federal courts suggest, however, that consideration of the public harm that might flow from disclosure of certain requested information is not illegitimate in all contexts. In Church of Scientology v. Department of the Army, 611 F.2d 738, 746 (9th Cir. 1979), the court observed that other courts had taken cognizance of "the potential harm from disclosure" in carrying out the Exemption 6 balancing. In Lamont v. Department of Justice, 475 F.Supp. 761, 782 (S.D.N.Y.1979), the court concluded that in conducting the Exemption 6 balancing it was appropriate to consider the public harm that would flow from disclosure of information held by the FBI regarding informants and surveillance. The district judge concluded in Lamont that a "public harm might accrue [from disclosure], as `it is doubtful that many would be willing to give information at all if they could not be assured of such privacy.'" Id. (quoting Flower v. FBI, 448 F.Supp. 567, 571-72 (W.D.Tex.1978)).
Although I do not wish to mandate the inclusion of a new element in the Exemption 6 balancing process, I think it wrong to foreclose completely consideration of the important public interest in securing talented, qualified appointees to staff the NCI advisory boards. In the Women in Science case, we in no uncertain terms made clear our collective fear that disclosure of the Form 474 data might impair the ability of the government to obtain qualified appointees and similar information in the future. It would accordingly seem most strange to
Accordingly, I would hold that the data at issue in this litigation is exempt from disclosure under Exemption 6.
B. The Applicability of Exemption 4.
The district court rejected the government's reliance on Exemption 4
In National Parks and Conservation Association v. Kleppe, 547 F.2d 673, 685-86 (D.C.Cir.1976) (National Parks II), we observed that Exemption 4 is not primarily concerned with the protection of personal privacy interests, a view to which I adhere. We did not in that case, however, express any conclusion regarding the extent to which personal commercial or financial information might be protected under Exemption 4 if the material was "obtained from a person" and "privileged or confidential."
Decisions in this circuit have consistently stated that, aside from trade secrets, Exemption 4 applies only to information that is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential.
As the court noted in Board of Trade, the absence of legislative history defining the scope of the term "financial" has led courts to give that word its ordinary meaning. 627 F.2d at 403. By any definition, information relating to the financial interests of an appointee or his family members that is required to be listed on a disclosure form is covered. Although the precise amount of each investment is not required to be listed on the Form 474, the nature of the interest, the name of the entity, and the name of the individual in whose name the investment is held must be provided. Such information, with or without the actual investment sums listed, is indisputedly financial. The distinction between the requirement that the appointee note the ownership of a certain amount of corporate stock and the requirement that the holding of such stock simply be listed is one without a difference for Exemption 4 purposes; the distinction lacks sufficient significance to suggest that the disclosure of stock ownership is not "financial" in character.
Moreover, it is clear that in a variety of contexts purely personal financial information has been held to be "financial" for Exemption 4 purposes.
I am not able, however, to hold that the listing of one's non-federal employment relationships is included within the ambit of the term "financial." Although it is true that the typical employment arrangement involves compensation, the mere listing of such relationships does not bear sufficient similarity to the pecuniary affairs of the individual to merit inclusion as "financial." Accordingly, the information submitted on the Forms 474 covering the appointee's non-federal employment should not be protected from disclosure by Exemption 4.
Considering only the information we have above held to be "financial" in character, I turn to the final, more difficult inquiry: whether the information is "privileged or confidential" for the purposes of Exemption 4. In the National Parks I case, we articulated the following test: financial matter is "confidential" if disclosure is likely either "(1) to impair the government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." 498 F.2d at 770 (footnote omitted). Inasmuch as there is no concern with the "competitive position" of the submitters of the Forms
The test for confidentiality under Exemption 4 is an objective one, and neither the submitter's preference for secrecy nor the government's assurances to that effect can be dispositive. See National Parks I, 498 F.2d at 766-67. As the information in question is "necessary" for implementation of the government's in-house review for conflicts of interest, our focus properly turns to the likely effect of possible disclosure on future submissions of the material. The National Parks I court suggested that where, as here, the submitter of the information is required to supply it to the government, the concerned agency is precluded from asserting that its future ability to obtain the information will be impaired. 498 F.2d at 770. More recently, however, courts have suggested that a statutory obligation to provide the information is simply a factor to be considered in determining whether any functional impairment will ensue, see, e.g., Green v. Department of Commerce, 468 F.Supp. 691, 692-93 (D.D.C.1979), and I adopt that conclusion.
In order for the government to sustain its burden of demonstrating that information is confidential for Exemption 4 purposes, we have stated that "specific factual or evidentiary material" must be adduced. Pacific Architects and Engineers, Inc. v. Renegotiation Board, 505 F.2d 383, 385 (D.C.Cir.1974). We have observed on several occasions that "[c]onclusory and generalized allegations are ... unacceptable as a means of sustaining the burden of nondisclosure under the FOIA" in light of the adversarial difficulties posed by such statements and their inconsistency with the mandate of openness underlying the Act. National Parks II, 547 F.2d at 680; see Pacific Architects, 505 F.2d at 384-85; Cuneo v. Schlesinger, 484 F.2d 1086, 1092 (D.C.Cir.1973), cert. denied sub nom. Rosen v. Vaughn, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). In the normal case, then, a remand — such as that ordered today by the majority — might well be required to provide a full factual hearing on the confidentiality question, as we do not, on the record before us, have a particularly detailed parsing of that issue.
The existence of our Women in Science decision, however, renders this case most distinctly an unusual one. I may not timidly suggest that most FOIA Exemption 4 cases do not involve data about which a judicial finding that disclosure would impair the government's ability to obtain the information in the future has already been made. Precisely such a finding has been made, however, with regard to the information contained on the Forms 474. We stated in Women in Science that disclosure of the Form 474 information
566 F.2d at 346. The district judge in Women in Science drew a similar conclusion.
In light of these special facts, I do not believe it necessary to remand this cause for a full ventilation of the confidentiality issue. The district judge and three judges of this court ruled in Women in Science that disclosure of the Form 474 data would impair the government's ability to obtain that information in the future. Although not a strict matter of collateral estoppel, I
Accordingly, I would hold that the Form 474 information relating to the financial interests of NCI appointees and their families is exempt from disclosure under FOIA Exemption 4.
The collective effect of the factors weighing against disclosure of the Form 474 information creates an imposing offset to the public interest in disclosure. Although it is clear that the release of the data would be consistent with the FOIA goal of the promotion of honesty in government,
In declining to order the release of the financial and employment information sought by appellant, I am primarily mindful that, in formulating the sixth exemption to the FOIA, Congress was keenly aware of the need "to protect certain equally important rights of privacy...." S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). The Exemption 6 balancing is designed to reconcile the public's right to know and individual rights of privacy "by excluding [from disclosure] those kinds of files the disclosure of which might harm the individual." H.R.Rep.No.1497, 89th Cong., 2d Sess. 11, U.S.Code Cong. & Admin.News 1966, p. 2428 (1966). As Chief Justice Burger recently stated in considering the FOIA exemptions, "[T]he Act expressly recognizes ... that public disclosure is not always in the public interest...." Baldrige v. Shapiro, 455 U.S. 345, 352, 102 S.Ct. 1103, 1108, 71 L.Ed.2d 199 (1982).
The overriding question in this case is whether, by accepting special, part-time employment in an advisory capacity with the National Cancer Institute, the eminent scientists, scholars, and community leaders surrendered to the public domain their right to have their financial and work lives remain private matters. I believe that the committee members did not forgo all privileges of "private" citizenship by this limited entree into public life, nor were they, in contrast to appellant's arguments, transmogrified into "public personages" by virtue of the acceptance of part-time government service. Even under the FOIA the public's right to know must, at times, be subordinated to the individual's right to be left alone. This is one of those cases.
Sears and Mink were Exemption 5 cases; thus their strong language is technically dictum for Exemption 6. And in fact our early Exemption 6 cases contemplated inquiry — "unique for exemption 6" — into the specific need of the person requesting the information. Rural Housing Alliance v. United States Dep't of Agriculture, 498 F.2d 73, 77 (D.C.Cir.1974); see Getman v. NLRB, 450 F.2d 670, 677 n.24 (D.C.Cir.1971). More recently, however, we questioned whether a special rule for Exemption 6 was consistent with FOIA's broad purpose to enable "any person" to obtain information. Ditlow v. Shultz, 517 F.2d 166, 171 n.21 (D.C.Cir.1975). Until advised otherwise by the Supreme Court, we think it appropriate to accept Sears and Mink at face value, and thus not to inquire into the particular need of the requester. Accord Kurzon v. Department of Health & Human Servs., 649 F.2d 65, 68 (1st Cir. 1981). See generally Kronman, The Privacy Exemption to the Freedom of Information Act, 9 J. Legal Stud. 727, 743 n.60 (1980).
No cases, to our knowledge, have held that a list of financial interests without dollar amounts is exempt under Exemption 6. The government cites two district court cases in other circuits which merely held that information on dollar amounts should be disclosed with identifying names deleted. Florida Medical Ass'n v. Department of Health, Educ. & Welfare, 479 F.Supp. 1291, 1305 (M.D.Fla.1979) (Medicare reimbursements to physicians); Sonderegger v. United States Dep't of the Interior, 424 F.Supp. 847, 856 (D.Idaho 1976) (claims for federal disaster relief). We intimate no view on whether these decisions are correct.
Thus, Part III of the Executive Order seems to contemplate limited disclosure by all "special Government employees" to individual agencies, without a promise of confidentiality; while Part IV contemplates more extensive disclosure by high-level regular employees to the Civil Service Commission, with a promise of confidentiality. It may be that consultants, advisers, and other special government employees come within the Civil Service Commission's authority under § 402 of Part IV to require disclosure from "such employees ... as the Commission may designate." We so held in Women in Science, although we were "concern[ed] about the length to which one must go to reach this conclusion." 566 F.2d at 345. But while the Order may permit a pledge of confidentiality, it certainly does not require such a pledge.
It does not appear, nor would it be plausible, that Congress made a conscious policy choice that complete public disclosure is desirable for employees who work more than 60 days per year, but no public disclosure is desirable for employees who work 60 days or less, regardless of the employees' control over public funds or the likelihood that their work will involve conflicts of interest. Thus, we give greater weight to the Act's primary purpose to require public disclosure of conflicts of interest than to the narrow and unexplained exception for employees who work 60 days or less per year.
We have found only two district court cases holding information to be privileged under Exemption 4 and both involve the attorney-client privilege, which is explicitly mentioned in the legislative history of Exemption 4. Indian Law Resource Center v. Department of the Interior, 477 F.Supp. 144, 148 (D.D.C.1979) (alternative holding); Miller, Anderson, Nash, Yerke & Wiener v. United States Dep't of Energy, 499 F.Supp. 767, 771 (D.Or.1980) (alternative holding).
We reserved in National Parks I, have not since decided, and do not decide here the question "whether other governmental interests are embodied in this exemption." 498 F.2d at 770 n.17. In particular, we do not decide whether it is proper to take into account the government's need to attract qualified scientists, who might choose not to seek consulting positions in order to avoid public disclosure of Form 474's financial information. The government did not ask us in this case to consider including that specific interest in the National Parks I test. See Government's Brief at 13 n.10. But see Affidavit of Robert Eaglesome, supra note 8, ¶ 7 (expressing his view that "[w]ithout assurances of confidentiality ..., significant numbers of persons may not apply for the advisory board or committee positions").
Appellant's Appendix (A.A.) at 21.
S.REP. No. 813, 89th Cong., 1st Sess. 9 (1965) (emphasis added). In like fashion, the House Report stated that the exemption:
H.R.REP. No. 1497, 89th Cong., 2d Sess. 10, U.S.Code Cong. & Admin.News 1966, p. 2427 (1966) (footnote omitted) (emphasis added).