JOHN GLEESON, United States District Judge:
The United States Department of Defense and Department of the Army (referred to here as "the defendants") appeal from orders of the United States District Court for the Southern District of New York (Alvin K. Hellerstein, District Judge) directing them to release 21 photographs pursuant to the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552 (2006). The photographs depict abusive treatment of detainees by United States soldiers in Iraq and Afghanistan.
On appeal, the defendants contend that the exemption in § 552(b)(7)(F) for law enforcement records that could reasonably be expected to endanger "any individual" applies here because the release of the disputed photographs will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan. They further claim that, notwithstanding the redactions ordered by the district court of 20 of the 21 photographs, disclosure will result in unwarranted invasions of the personal privacy of the detainees they depict, justifying nondisclosure under § 552(b)(6) and (7)(C).
We hold that FOIA exemption 7(F) does not apply to this case. We further hold that the redactions ordered by the district court render the privacy exemptions unavailable
BACKGROUND
On October 7, 2003, the plaintiffs filed joint requests with the defendants and various other agencies pursuant to FOIA, 5 U.S.C. § 552 (2006), seeking records related to the treatment and death of prisoners held in United States custody abroad after September 11, 2001, and records related to the practice of "rendering" those prisoners to countries known to use torture. On June 2, 2004, having received no records in response to the requests, the plaintiffs filed the complaint in this case, alleging that the agencies had failed to comply with the law.
On August 16, 2004, to facilitate the search for relevant records, the plaintiffs provided a list of records they claimed were responsive to the FOIA requests. Among the records listed were 87 photographs and other images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison. The images from Abu Ghraib (the "Abu Ghraib photos") depicted United States soldiers engaging in abuse of many detainees. The soldiers forced detainees, often unclothed, to pose in dehumanizing, sexually suggestive ways.
The defendants initially invoked only FOIA exemptions 6 and 7(C) as their ground for withholding the Abu Ghraib photos. Those provisions authorize withholding where disclosure would constitute an "unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6), (7)(C). The defendants contended in their motion for summary judgment that these personal privacy exemptions warranted the withholding of the Abu Ghraib photos in order to protect the privacy interests of the detainees depicted in them. The plaintiffs argued in their cross-motion that redactions could eliminate any unwarranted invasions of privacy.
More than two months after oral argument of the cross-motions, the defendants added another justification for withholding the Abu Ghraib photos: exemption 7(F). That exemption authorizes withholding of records "compiled for law enforcement purposes" where disclosure "could reasonably be expected to endanger the life or physical safety of any individual." § 552(b)(7)(F). According to the defendants, release of the Abu Ghraib photos could reasonably be expected to endanger the life or physical safety of United States troops, other Coalition forces, and civilians in Iraq and Afghanistan.
On September 29, 2005 the district court rejected the defendants' arguments and ordered the disclosure of the Abu Ghraib photos. See ACLU v. Dep't of Def., 389 F.Supp.2d 547, 579 (S.D.N.Y.2005) (the "Abu Ghraib order"). It determined that redaction of "all identifying characteristics of the persons in the photographs" would prevent an invasion of privacy interests. Id. at 571. To the extent that an invasion of privacy might occur in spite of the redactions, the court found that such an invasion would not be "unwarranted" since the public interest involved "far outweighs any speculative invasion of personal privacy." Id. at 572-73.
The district court also rejected the defendants' eleventh-hour "supplemental" argument related to exemption 7(F). Without deciding whether the exemption's protection of "any individual" extended as far as the defendants claimed, the court concluded that in any event, "the core values that Exemption 7(F) was designed to protect are not implicated by the release of the [Abu Ghraib] photographs, but . . . the core values of FOIA are very much implicated." Id. at 578. The district
The defendants appealed the Abu Ghraib order, but in March 2006, while the appeal was pending, many of the Abu Ghraib photos were published on the internet by a third party. The appeal was thereafter withdrawn.
After the appeal was withdrawn, the plaintiffs sought clarification regarding other detainee abuse images, and the defendants confirmed that they were withholding an additional 29 images, again based on exemptions 6, 7(C) and 7(F). Whereas the Abu Ghraib photos were taken at that one location, the 29 photographs were taken in at least seven different locations in Afghanistan and Iraq, and involved a greater number of detainees and U.S. military personnel. And while many of the Abu Ghraib photos depicted unclothed detainees forced to pose in degrading and sexually explicit ways, the detainees in the 29 photographs were clothed and generally not forced to pose. The photographs were part of seven investigative files of the Army's Criminal Investigations Command ("Army CID"), and were provided to Army CID in connection with allegations of mistreatment of detainees. In three of the investigations, Army CID found probable cause to believe detainee abuse had occurred related to the photographs at issue here. Soldiers under scrutiny in two of the investigations have been punished under the Uniform Code of Military Justice.
On April 10, 2006, the district court established an expedited procedure for determining whether the 29 images could properly be withheld.
The defendants' appeal of the June 2006 orders is now before us. There is no cross-appeal, and thus neither the order permitting the withholding of eight photographs nor the order directing redactions of the photographs to be disclosed is before us. We refer here to the 21 photographs in dispute as the "Army photos."
DISCUSSION
A. Governing Legal Standards
The Freedom of Information Act requires that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless
FOIA's purpose is to encourage public disclosure of information in the possession of federal agencies so that the people may "know what their government is up to." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation and emphasis omitted). "Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." Id. at 773, 109 S.Ct. 1468. The release of information of this sort vindicates FOIA's basic purpose: "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (describing FOIA as "a structural necessity in a real democracy").
A district court "has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." § 552(a)(4)(B). As FOIA applies government-wide and no one agency administers it, no agency is entitled to deference in interpreting its provisions. Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C.Cir.2001) (citing cases). Further, FOIA expressly provides for de novo review of agency decisions to withhold records and places the burden of persuasion on the agency. Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468; see also § 552(a)(4)(B) ("[T]he court shall determine the matter de novo . . . and the 22 burden is on the agency to sustain its action."). Doubts, therefore, are to be resolved in favor of disclosure. FLRA, 958 F.2d at 508; accord, e.g., Local 3. Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988).
As mentioned above, the district court's review of the defendants' invocation of FOIA's exemptions was de novo. Our review of the district court's decisions, which were made on cross-motions for summary judgment, is de novo as well. See, e.g., Wood v. FBI, 432 F.3d 78, 82 (2d Cir.2005) ("This Court reviews de novo a district court's grant of summary judgment in a FOIA case.").
B. FOIA Exemption 7(F)
The argument defendants raised as an afterthought below is their lead argument on this appeal. They contend that FOIA exemption 7(F), 5 U.S.C. § 552(b)(7)(F) (2006), justifies withholding the Army photos and that the district court erred in concluding otherwise. Exemption 7(F) allows an agency to withhold "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 endanger the life or physical safety of any individual."
The first contention is undisputed. The second and third are disputed, but neither was actually decided by the district court. Without deciding whether the defendants had satisfied their burden of showing that the Army photos "could reasonably be expected to" result in acts of violence by insurgents, the district court acknowledged "a risk" of such violence. 389 F.Supp.2d at 578. It then balanced that risk against the "core values" of FOIA and the benefits of disclosure, concluding that disclosure was warranted. The district court explicitly declined to resolve the parties' dispute regarding the proper construction of the phase "any individual" in exemption 7(F). Id.
We resolve the latter dispute here, and our resolution disposes of the exemption 7(F) issue
We disagree. The phrase "any individual" in exemption 7(F) may be flexible, but is not vacuous. Considering, as we must, the words in the statute, the structure of FOIA and its exemption provisions, the chronology of amendments to those provisions, and the requirement that FOIA exemptions be narrowly construed, we cannot read the phrase to include individuals identified solely as members of a group so large that risks which are clearly speculative for any particular individuals become reasonably foreseeable for the group.
1. The Phrase "Any Individual"
Exemption 7(F) justifies withholding any law enforcement records that "could reasonably be expected to endanger the life or physical safety of any individual." 5 U.S.C. § 552(b)(7)(F). Do the defendants satisfy their burden of establishing the exemption's applicability if they do not point to any one individual and establish that he or she could reasonably be expected to be endangered, but instead point to a group composed of millions of people and establish that it could reasonably be expected that someone in that group will be endangered?
The plain language of the phrase "endanger the life or physical safety of any individual" connotes a degree of specificity above and beyond that conveyed by alternative phrases such as "endanger life or physical safety." It is true that the statute does not read "any named individual," and we thus understand it to include individuals identified in some way other than by name—such as, for example, being identified as family members or coworkers of a named individual, or some similarly
The defendants emphasize that Congress used the word "any" to modify "individual," and contend that the broad scope of the word "any" relieves them of the burden of identifying, even roughly, an individual. We are mindful that the Supreme Court has "stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). But at least one thing is clear from the Court's decisions interpreting the meaning of the word "any" in federal statutes: "Any" does not always deserve the expansive application the defendants urge here. Rather, a court must construe the term carefully, in light of the statute as a whole as interpreted by accepted principles of construction, and, where applicable, the statutory framework that preceded its enactment.
In Small v. United States, for example, the Court examined 18 U.S.C. 922(g)(1), which makes it illegal for a person who has been convicted of a felony "in any court" to possess a firearm. 544 U.S. 385, 387, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). In considering whether a felony conviction in a foreign court brings a gun-toting defendant within the ambit of the law, the Court did not begin (and thereby end) its analysis with a simplistic "`any' means `any.'" To the contrary, it began by observing that "[t]he word `any' considered alone cannot answer this question." Id. at 388, 125 S.Ct. 1752. Although it "demands a broad interpretation, we must look beyond that word itself." Id. (citation omitted). "In ordinary life, a speaker who says, `I'll see any film,' may or may not mean to include films shown in another city. In law, a legislature that uses the statutory phrase `any person' may or may not mean to include `persons' outside the jurisdiction of the state." Id. (internal quotation omitted). Since the other language in the statute did not suggest an intent to reach foreign convictions, there was no legislative history suggesting such an intent, and the presumption against extraterritorial application of statutes instructed courts to decline to find such intent in analogous cases, id. at 388-89, 125 S.Ct. 1752, the Supreme Court held that "any court" did not mean "any court," but rather "any domestic court," and foreign convictions could therefore not serve as a predicate to liability under the statute. Id. at 391-93, 125 S.Ct. 1752.
The Supreme Court has rejected a broad interpretation of the word "any" in other contexts as well where such interpretation is inconsistent with the statutory context and legislative purpose. The Age Discrimination in Employment Act ("ADEA") forbids an employer's discrimination against "any individual" over 40 years of age "because of such individual's age." 29 U.S.C. § 623 (2006). In Gen. Dynamics Land Sys., Inc. v. Cline, the question was whether a health benefit policy favoring only workers at least 50 years of age violated the ADEA rights of the employees who were over 40 but not yet 50. 540 U.S. 581, 584-85, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004). In other words, did the ADEA's protection of "any individual" over 40 from age discrimination protect the younger group of over-40 workers
To be sure, sometimes the word "any" in a statute deserves an expansive application. However, consistent with the cases discussed above, the Supreme Court has made it clear that such a result must never be the result of a wooden, uncritical capitulation to the word itself. Rather, it occurs where the surrounding statutory language and other relevant legislative context support it. In United States v. Gonzales, 520 U.S. 1, 11, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997), for example, the Court held that the requirement in 18 U.S.C. § 924(c)(1) that sentences imposed under the statute be consecutive to "any other term of imprisonment" could not properly be limited to federal terms of imprisonment. But it did so only after determining that "other language in [the statute] reinforces our conclusion." Gonzales, 520 U.S. at 10, 117 S.Ct. 1032. Finding "no intimation" in the statute as a whole that Congress meant otherwise, and taking into account the fact that the statute was amended in 1984 to repudiate judicial constructions that narrowed its scope, the Court adopted an expansive interpretation of "any other term of imprisonment." Id. at 9-10, 117 S.Ct. 1032.
Thus, the defendants' argument that "any individual" in exemption 7(F) must, due solely to the brute force of the word "any," be interpreted to extend its protection to all persons, whether or not they can be identified, no matter how remote they are from the law enforcement investigation in which the disputed records were compiled, and no matter how small the risk to any particular individual, is incorrect. We must examine not only the word "any" but also the language of the remainder of the provision, the structure of FOIA's exemptions, and the context and history leading to its adoption.
We begin with the specific context in which the disputed language is used. It bears emphasis that we construe the Freedom of Information Act. "The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature." Palmer, 16 U.S. (3 Wheat.) at 631. The law was enacted to make agency records available to the public "except as specifically stated" in one of the enumerated exemptions. § 552(d) (emphasis added). As mentioned above, though important interests are served by
This rule of construction is of central importance here. The defendants' construction of "any individual" as not requiring the government to name or even roughly identify any individual, besides gesturing to the populations of two nations and two international expeditionary forces and showing that it could reasonably be expected that at least one person within them will be endangered, is not a narrow one. The reading of "any individual" as requiring a FOIA defendant to identify an individual with reasonable specificity is a narrower construction, and to be preferred on that ground alone. In Small, an analogy to the presumption against extraterritorial application of statutes led the Court to construe "any court" not to include foreign courts. 544 U.S. at 388-89, 125 S.Ct. 1752. In General Dynamics, the ADEA's statement of purpose and findings counseled against a broad construction of the statute's anti-discrimination provision. 540 U.S. at 590-91, 124 S.Ct. 1236. Similarly, here the principle that FOIA exemptions are to be construed narrowly cabins the permissible construction of the phrase "any individual." A construction that requires the agency to identify with reasonable specificity the person or persons who could reasonably be expected to be endangered accords with that principle. The defendants' unbounded interpretation does not.
That interpretation is also inconsistent with the remainder of the text of the statute. To construe the word "any" to relieve the government of the burden of identifying an individual who could reasonably be expected to be endangered would be to read "individual" out of the exemption. In effect, it would convert the phrase "endanger the life or physical safety of any individual" into "endanger life or physical safety." Indeed, it is telling that one of the cases the defendants cite misquotes exemption 7(F) in just this way, leading it to conclude that diffuse harms to unknown and unspecified individuals are covered by the exemption. See Brady-Lunny v. Massey, 185 F.Supp.2d 928, 932 (C.D.Ill.2002) ("Under 5 U.S.C. § 552(b)(7)(F), the Government is exempt from disclosing information about any individual that `could reasonably be expected to endanger life or physical safety.'"). As we construe statutes to avoid surplusage, see Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144, 152 (2d Cir.2006) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant[.]" (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001))), we cannot ignore the role that the word "individual" plays in exemption 7(F).
While all harms in the end are suffered by individuals, there is a crucial difference between a showing that disclosure "could reasonably be expected to endanger life or physical safety" and exemption 7(F)'s requirement that disclosure "could reasonably be expected to endanger the life or physical safety of any individual." With large enough populations, remote and speculative risks become radically more likely to manifest in at least one person. No one person can reasonably be expected to die in a car accident, but it is certain that someone somewhere in the world will die in a car accident every day. See World Health Org., World Report on Road Traffic Injury Prevention 4 (2004), available at http://www.who.org/violence-injury—
This case shows the significance of Congress's decision to require a showing of danger to an individual. With good reason, the defendants do not identify a single person and say that the release of the Army photos could reasonably be expected to endanger that person's life or physical safety; the threat to any one person is far too speculative. What the defendants argue, and what we assume for the purposes of this opinion, is the far different proposition that it could reasonably be expected that out of a population the size of two nations and two international expeditionary forces combined, someone somewhere will be endangered as a result of the release of the Army photos. Thus, we do not consider a case where the defendants have shown exemption 7(F)'s required reasonable expectation of endangerment with respect to one or more individuals, but one where the defendants attempt to cobble together that required reasonable expectation of endangerment by aggregating miniscule and speculative individual risks over a vast group of individuals.
We hold that in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual. We need not shape the precise contours of the exemption today, as it is not a close question whether the government has identified any relevant individual with reasonable specificity. It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan. The structure of FOIA and the applicable legislative history, both of which contemplate a far narrower role for exemption 7(F) than that envisioned by the defendants, amply confirm our holding.
2. The Structure of FOIA and its Exemptions
Our conclusion as to the breadth of exemption 7(F) is supported by the structure of FOIA's exemptions. The context of the exemption severely undercuts the defendants' claim that Congress tucked such a far-reaching and nebulous
To say that exemption 7(F) does not contemplate withholding records on the basis of diffuse threats of death or physical injury, threats which are individually speculative but which can reasonably be expected with respect to large populations, is not to denigrate such threats, which of course are characteristic of the national security sphere. Indeed, the defendants acknowledge the disclosure issue currently before us as a matter of national security. (See, e.g., Appellants' Br. 25 (seeking substantial deference by the Court to the "predictive judgments on issues of national security" of Brigadier General Carter F. Ham and General Richard B. Myers).) FOIA, however, provides a separate exemption specifically tailored to the national security context, which is a powerful reason not to construe exemption 7(F) as broadly as the defendants urge.
FOIA's exemption 1, 5 U.S.C. § 552(b)(1), exempts from disclosure records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order."
Although Executive Order 13,292 is not a law, FOIA incorporates its safeguards into exemption 1. § 552(b)(1)(B). Indeed, earlier versions of these prohibitions were included in Executive Order 11,652 (a precursor to Executive Order 13,292) when Congress initially incorporated such safeguards into exemption 1 in 1974, Pub.L. No. 93-502, 88 Stat. 1561 (1974). See Exec. Order No. 11,652, § 4, 37 Fed.Reg. 5209 (Mar. 8, 1972) ("In no case shall information be classified in order to conceal inefficiency or administrative error, [or] to prevent embarrassment to a person or Department. . . .").
The existence of separate standards for information threatening harm to national security severely undercuts the defendants' asserted construction of exemption 7(F). It would be anomalous if an agency that could not meet the requirements for classification of national security material could, by characterizing the material as having been compiled for law enforcement purposes, evade the strictures and safeguards of classification and find shelter in exemption 7(F) simply by asserting that disclosure could reasonably be expected to endanger someone unidentified somewhere in the world.
The limitation of exemption 7(F) to law enforcement records does not diminish that inconsistency. First, the ease with which the government can find refuge for its records on the ground that they were compiled for "law enforcement purposes" can hardly be overstated. See John Doe Agency, 493 U.S. at 162-64, 110 S.Ct. 471 (Scalia, J., dissenting) (describing the ability to transfer records to an investigation file as "a hole one can drive a truck through"). Second, assuming the utmost good faith of the government, the disparate treatment that would be accorded law
Thus, the structure of FOIA's exemption provision, with its separate exemptions and different standards for national security matters and for law enforcement matters, counsels in favor of the narrower construction of 7(F) that we adopt here.
3. The Legislative History of Exemption 7(F)
An examination of the legislative history and background surrounding the adoption of the current form of exemption 7(F) confirms that the exemption simply does not function as a far broader alternative to the national security classification system. Congress has always envisioned exemption 7(F) as a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence.
FOIA was enacted as an antidote to the perceived "loopholes" in Section 3 of the Administrative Procedure Act ("APA"), which allowed agencies "to deny legitimate information to the public." S.Rep. No. 89-813 (1965), reprinted in Subcomm. on Admin. Practice & Procedure, S. Comm. on the Judiciary, 93rd Cong., Freedom of Information Act Source Book 36, 38 (Comm. Print 1974) [hereinafter FOIA Source Book]. Section 3, the APA's disclosure statute, allowed agencies to withhold information "requiring secrecy in the public interest" or "for good cause." APA § 3, Pub.L. No. 79-404, 60 Stat. 237, 238 (1946), reprinted in FOIA Source Book, supra, at 39-40. Congress feared that this open-ended language may have allowed agencies to withhold information "only to cover up embarrassing mistakes or irregularities." S.Rep. No. 89-813, reprinted in FOIA Source Book, supra, at 38; see also H.R.Rep. No. 89-1497 (1966), reprinted in FOIA Source Book, supra, at 22, 33 ("[T]he law which was designed to provide public information about Government activities has become the Government's major shield of secrecy.").
In stating the purpose of FOIA, which was passed as an amendment to Section 3 of the APA, the Senate Judiciary Committee stated:
S.Rep. No. 89-813, reprinted in FOIA Source Book, supra, at 38; see also H.R.Rep. No. 89-1497, reprinted in FOIA Source Book, supra, at 33 ("A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a political truism needs repeating.").
Congress recognized, however, that certain information should not be disclosed to the public, so it set forth nine exemptions to FOIA.
FOIA got off to a slow start. A series of oversight hearings conducted in 1971 and 1972 by a subcommittee of the House Committee on Government Operations identified several major problem areas in the administration of the statute. They included bureaucratic delays in response time, fee schedule abuses, over-involvement of political appointees in the decision-making process and a poor attitude among top administration officials toward the "open access" spirit of FOIA. H.R.Rep. No. 92-1419, at 8 (1972), reprinted in Subcomm. on Gov. Info. & Individual Rights, H. Comm. on Gov. Operations, 94th Cong. & Subcomm. on Admin. Practice & Procedure, S. Comm. on the Judiciary, 94th Cong., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book 8, 15 (Comm. Print 1975)[hereinafter 1974 Amendment Source Book]. As a result, the committee concluded that "[i]n too
Additional oversight hearings in 1973 before subcommittees of the Senate Committee on the Judiciary produced similar findings, and the committee concluded that "the primary obstacles to the Act's faithful implementation by the executive branch have been procedural rather than substantive." See S.Rep. No. 93-854 (1974), reprinted in 1974 Amendment Source Book, supra, at 153. The resulting amendments, enacted over the veto of President Ford, tightened and clarified some of FOIA's key procedural requirements. Among the changes were required indices reflecting agency action, standardized search and copy fees for FOIA plaintiffs, time frames for agency action, allowance for recovery of reasonable attorney fees and costs by FOIA plaintiffs, required annual reporting on the administration of FOIA, and an expanded definition of what constitutes an "agency." See id. at 160-87.
The 1974 amendments also altered the exemptions in several significant respects.
Second, the 1974 amendments responded to concerns that the opportunity to exempt law enforcement "files" created an incentive among agencies "to commingle various information into one enormous investigatory file and then claim it is too difficult to sift through" to determine whether any of its contents are responsive to a valid FOIA request. 120 Cong. Rec. S19,806-23 (daily ed. Nov. 21, 1974) (Statement of Sen. Hart), reprinted in 1974 Amendment Source Book, supra, at 451 ("This `contamination technique' has been widely used by agencies to thwart access to publicly valuable information in their files."). So Congress replaced the word "files" in exemption 7 with the word "records," and ordered agencies to examine individual records containing exempt information and to disclose "any reasonably segregable portion" of those records upon request. § 552(b) (1974); see Robbins, 437 U.S. at 229-30, 98 S.Ct. 2311 (noting that substituting the word "records" for "files" helped avoid "impermissible `commingling' by an agency's placing in an investigatory file material that did not legitimately have to be kept confidential").
Finally, the 1974 amendments replaced the broad language of exemption 7, which had covered all investigatory files except to the extent they were already made available by law, with six specific subprovisions. The amended exemption required agencies to demonstrate that each withheld investigatory record fit into one of the six subprovisions. Most significantly for the purposes of this case, the subprovisions authorized the withholding of records that would (1) disclose the identity of a confidential source (or, with respect to criminal law enforcement or national security records, disclose confidential information provided solely by such a source), § 552(b)(7)(D) (1974); or (2) endanger the life or physical safety of "law enforcement personnel," § 552(b)(7)(F) (1974).
The 1974 amendments were intended to reinvigorate FOIA. By eliminating the ability of an agency to place entire law enforcement files out of the public's reach, and then narrowing the withholding authority to the six specified categories of records, they accomplished that goal. But in doing so, the amendments created some problems. Records identifying a confidential source could be withheld, as could records that would endanger law enforcement personnel. But what about records that could endanger the families of such persons, or persons assisting law enforcement who are neither confidential sources nor government employees? Attorney General Edward H. Levi identified these problems in a 1975 memorandum regarding the amendments to the executive branch departments and agencies. The memorandum set forth guidelines for the implementation of the amended FOIA, and stated as follows with respect to exemption 7(F):
Edward H. Levi, Attorney General's Memorandum on the 1974 Amendments to the Freedom of Information Act pt. I-B (1975), available at http://www.usdoj.gov/ oip/74agmemo.htm.
Those words proved to be prophetic. As the war on drugs and organized crime escalated in the early 1980s, those areas of law enforcement activity "constitute[d] a special problem under FOIA." 132 Cong. Rec. S14,040 (daily ed. Sept. 27, 1986) (statement of Sen. Hatch), and the fact that exemption 7(F)'s protections were limited to "law enforcement personnel" was central to this special problem. As the Deputy Attorney General stated in support of proposed amendments:
131 Cong. Rec. S253 (daily ed. Jan. 3, 1985) (statement of Carol E. Dinkins, Deputy Attorney General).
Consistent with this legislative history, the 1986 amendments to exemption 7 reflect the lawmakers' desire to limit the ability of drug traffickers and other lawbreakers to use FOIA to enhance their organized criminal activity. Among the enacted changes was the substitution of the words "could reasonably be expected to" for "would" in exemptions 7(A), 7(C),
Finally, exemption 7(F)'s authorization to withhold records to protect "law enforcement personnel" was expanded to allow withholding where release of the records in question "could reasonably be expected to endanger the life or physical safety of any individual." § 552(b)(7)(F). The amendment fixed the "special problem" FOIA had created for law enforcement by removing the "absurd" limitation on the exemption.
The defendants contend on this appeal that the 1986 amendment to exemption 7(F) altered it fundamentally, transforming it from a shield against specific risks incident to law enforcement investigations into a diffuse and nebulous authority for keeping inflammatory information secret (though, curiously, only inflammatory information in law enforcement files). As an initial matter, we note that the government had a different view at the time. Deputy Attorney General Dinkins's statement in support of the 1986 amendments described them as modifying the exemption only "slightly," in order to address the specific law enforcement concerns discussed above. 131 Cong. Rec. S248. The same view is expressed in the legislative history. See, e.g., 132 Cong. Rec. H9462 (daily ed. Oct. 8, 1986) (statement of Rep. English) (the 1986 amendments make "only modest changes to the FOIA" and only "slight[ly]" expand exemption 7(F)).
More importantly, the defendants' argument for an expansive interpretation of the phrase "any individual" misapprehends the special problem the 1986 amendment was
4. Subsequent Application of Exemption 7(F)
Most courts that have upheld the government's reliance on exemption 7(F) have done so where the challenged nondisclosure sought to protect government agents, witnesses, informants, and others who have participated in law enforcement investigations or proceedings. See Maydak v. U.S. Dep't of Justice, 362 F.Supp.2d 316, 321 n. 4 (D.D.C.2005) ("In general, [exemption 7(F)] has been interpreted to apply to names and identifying information of law enforcement officers, witnesses, confidential informants and other third persons who may be unknown to the requester." (citing cases)).
The defendants rely most heavily on Living Rivers, in which the government sought to withhold inundation maps of the area below the Hoover and Glen Canyon Dams. 272 F.Supp.2d at 1314. The Bureau of Reclamation had created the maps to help the government evaluate the effects of a possible dam failure, and to protect the people living downstream from the consequences of such a failure. Id. at 1315-16. Since the maps revealed information about specific populated areas, critical infrastructures, and power plant sites that would be affected by dam failure, the government argued that disclosure of the maps could allow terrorists to endanger people who live downstream from the dams. Id. The court allowed the government
Like the other opinions cited by the defendants, Living Rivers fails to give serious consideration to the scope of exemption 7(F); to what the government must do to meet its burden of establishing danger to "any individual"; and to the lack of fit between an expansive reading of exemption 7(F) and FOIA's treatment of national security information.
In any event, while Living Rivers applied a relaxed standard to the government's identification of an individual who could reasonably be expected to be endangered, even that court did not go as far as the defendants wish to here. The court in Living Rivers applied exemption 7(F) to protect a specific, identifiable set of individuals. Though the persons at risk in the event of dam failures were not individually named, they hardly represented "the public at large," as the defendants have argued. (See Appellants' Reply Br. 8.) To the contrary, they resided within the specific areas identified in the maps at issue. They may have been numerous, but unlike the population at issue here there is no suggestion in that case that they could not all have been specifically identified.
It is worth remarking that the defendants' interpretation of 7(F) is currently idiosyncratic. The robust public debate on the choice between law enforcement and other methods in formulating our national security policy has been devoid, to our knowledge, of any mention of law enforcement's broader shroud of secrecy under FOIA than non-law-enforcement national security operations-mention one would expect to find if the government's view of exemption 7(F) were the law. Cf. Michael Sherman, FOIA in the Aftermath of 9/11, 19 St. Thomas L.Rev. 281, 293 (2006) ("To date, Exemption 7F has not played a major role in post-9/11 FOIA case law.").
Instead, virtually every court having occasion to interpret exemption 7(F) has been called upon to determine whether the disclosure of law enforcement records could reasonably be expected to endanger the life or physical safety of any individuals who participated in some way in the investigation, be they law enforcement employees, informants, or witnesses, or others associated in some way with those persons. Significantly, the defendants themselves first invoked exemption 7(F) in precisely this way. Their initial resort to the exemption in the district court sought to protect only "the identities of citizens of Iraq or Afghanistan who may have cooperated with [Army] CID or other U.S. forces." (Third Declaration of Phillip J. McGuire, July 20, 2005, ¶ 13.) It was only two months after oral argument of the cross-motions for summary judgment that they dramatically expanded their application, converting a law enforcement matter into a national security issue.
C. FOIA Exemptions 6 and 7(C)
FOIA exemptions 6 and 7(C) protect against disclosure that implicates personal privacy interests. The government may withhold records in "personnel and medical files and similar files" only when their release "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (2006). However, when law enforcement records are involved, the government may withhold records that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C). Since the Army photos are considered law enforcement records for the purposes of exemption 7, and are also part of personnel files of the soldiers depicted in the photographs, they are eligible for withholding if the defendants satisfy the standards of either exemption.
Exemption 7(C) is more protective of privacy than exemption 6 because it does not require an invasion of privacy to be clearly unwarranted before withholding is allowed, and it may take effect not only when an invasion of privacy "would" occur, but when it could reasonably be expected to occur. See Favish, 541 U.S. at 165-66, 124 S.Ct. 1570. Because exemption 7(C) offers broader protection than exemption 6 — and a lower evidentiary standard for the defendants — a
1. The Detainees' Privacy Interest
In the FOIA context, the Supreme Court has recognized an individual privacy interest in "avoiding disclosure of personal matters." Reporters Committee, 489 U.S. at 762, 109 S.Ct. 1468 (internal quotation omitted). "[O]nce a more than de minimis privacy interest is implicated the competing interests at stake must be balanced in order to decide whether disclosure is permitted under FOIA." FLRA, 958 F.2d at 510. Disclosure of personal information "constitutes only a de minimis invasion of privacy" when identities are unknown. U.S. Dep't of State v. Ray, 502 U.S. 164, 176, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991).
Applying these principles to the privacy interests of the detainees depicted in the Abu Ghraib photos in reasoning it later applied to the Army photos, the district court determined that publication of the photos in a form in which "all identifying characteristics of the persons in the photographs have been redacted" would not cause a cognizable invasion of personal privacy. ACLU, 389 F.Supp.2d at 571. Where "individual recognition could not be prevented without redaction so extensive as to render the images meaningless," the court ordered those photographs to be withheld. Id. at 572. The court dismissed as speculative the risk that persons depicted in the photographs might recognize themselves or be recognized by members of the public in spite of the redactions. Id.
The district court also rejected arguments that release of the photographs would conflict with the Geneva Conventions' requirement that detaining powers protect any prisoner of war against insults and "public curiosity." Id. at 574. Instead, the court found that redaction is adequate to protect the detainees' identities and to preserve their honor. Id.
The defendants now argue that the redactions approved by the district court are inadequate to protect the privacy interests of the detainees. According to the defendants, when combined with information contained in the investigative reports associated with the detainee images, release of the photographs could make it possible to identify the detainees. The defendants also assert that there is a chance that the pictured detainees could identify themselves in any redacted photos released. The defendants emphasize that (a) "Congress and the courts have recognized that victims of crimes or mistreatment, such as the detainees in this case, should not be forced to relive their suffering and humiliation as a result of Government disclosures," (Appellants' Br. at 48); (b) the Supreme Court has recognized a strong privacy interest in "sensitive personal information," (id.); and (c) the Geneva Conventions obligate a detaining power to respect the dignity of detainees and avoid exposing them to "public curiosity," (id. at 51-52). For these reasons, the defendants assert that the release of images that could lead to the identification of the detainees
FOIA provides that "[t]o the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records [produced in response to other FOIA requests and made publicly available due to the likelihood of future requests]." § 552(a)(2). FOIA further states that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." § 552(b).
Accordingly, courts have found redaction of identifying information adequate to prevent infringement of the significant interests that FOIA's privacy exemptions were designed to protect. See Ray, 502 U.S. at 175-78, 112 S.Ct. 541 (finding that redaction was appropriate to safeguard personal privacy of Haitian nationals interviewed by State Department in connection with their involuntary repatriation); Rose, 425 U.S. at 354-58, 381, 96 S.Ct. 1592 (affirming redaction of personal references and other identifying information in Air Force Academy disciplinary records).
In this case, the district court held in camera proceedings to ensure the adequacy of proposed redactions to the Army photos. During those proceedings the court learned of the context of each photograph, including matters related to how the government came to possess the images, the location of events depicted, and the units that military personnel were assigned to. After examining each of the 29 photographs, the court determined which were to be released and the extent of redaction necessary to shield the identities of individuals depicted. At no point while viewing the Army photos did the district court note the possibility that a detainee could be identified in spite of the redactions. Having inspected the photographs and the redactions ourselves, we have no doubt that the district court examined the Army photos with an aim to redact "all identifying characteristics of the persons in the photographs," ACLU, 389 F.Supp.2d at 571, and that it did so adequately.
The defendants have cited no FOIA case in which a court has found a privacy right to be at risk where identifying information has been adequately redacted. Even accepting their argument that it may be "possible" to identify the detainees in spite
The defendants' attention to the privacy rights of crime victims and to the concerns associated with personal information does not alter the above analysis. Factors that may give rise to a heightened privacy interest include the presence of sensitive personal information, dignity of crime victims, and the risk of harm to reputation. See Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894 (D.C.Cir.1995) (recognizing that the magnitude of a privacy interest turns on whether disclosure may result in unwarranted association with criminal activity or reputational harm). However, such a privacy right attaches when information that is sensitive may be linked to certain individuals, not when the individuals involved are unknown.
For example, in Favish, the Supreme Court applied exemption 7(C) to allow the withholding of photographs of the death-scene of Vincent Foster, former Deputy Counsel to the President, after reports that his death was the result of suicide. 541 U.S. at 169-71, 175, 124 S.Ct. 1570. Implicit in the Court's discussion of the privacy rights of members of Foster's family with respect to images of scenes of his death was that the images depict an individual whose identity was widely known to the public. The privacy right attached to Foster's family members "to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility." Id. at 166, 124 S.Ct. 1570. If Foster's identity were unknown, such a privacy interest would not arise.
In Ray, the Supreme Court recognized that disclosure of identities of Haitians who were repatriated after attempts to enter the United States could subject them or their families to "embarrassment in their social and community relationships," 502 U.S. at 176, 112 S.Ct. 541 (internal quotation omitted), but that redaction of names resulted in a diminished privacy interest, see id. ("Although disclosure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy becomes significant when the personal information is linked to particular interviewees.").
Even though we are not compelled to balance interests where there is no more than a de minimis privacy interest at stake, we note that contrary to the defendants' suggestion there is a significant public interest in the disclosure of these photographs. The defendants concede that these photographs yield evidence of governmental wrongdoing, but nonetheless argue that they add little additional value to the written summaries of the depicted events, which have already been made public. This contention disregards FOIA's central purpose of furthering governmental accountability, and the special importance the law accords to information revealing official misconduct. Robbins, 437 U.S. at 242, 98 S.Ct. 2311 ("The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." (internal citation omitted)). The defendants cite several cases in which public information rendered the incremental value of additional disclosure too slight to outweigh privacy interests,
2. The Geneva Conventions
The defendants argue that the Geneva Conventions, which protect prisoners of war and detained civilians "against insults and public curiosity," serve as further basis for a finding that FOIA's privacy provisions apply to prevent release of the Army photos. The Third Geneva Convention, covering lawful belligerents, provides that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity." Geneva Convention Relative to the Treatment of Prisoners of War art. 13, Aug. 12, 1949, 6 U.S.T. 3316 [hereinafter Third Geneva Convention]. The Fourth Geneva Convention, covering civilians, states:
Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 27, Aug. 12, 1949, 6 U.S.T. 3516 [hereinafter Fourth Geneva Convention]. Both of these treaties were designed to prevent the abuse of prisoners. Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it.
However, government officials have concluded that release of photographs like the ones in this case would clash with the Geneva Conventions by subjecting the detainees depicted in the photos to public curiosity. (See Declaration of Geoffrey S. Corn, March 25, 2005, ¶ 5 ("[R]elease of [the Abu Ghraib] photographs, even with obscured faces and genitals, would be inconsistent with the obligation of the United States to treat the individuals depicted humanely and would pose a great risk of subjecting these individuals to public insult and curiosity."); Declaration of Richard B. Jackson, April 25, 2006, ¶ 9 (release of the Army photos will subject detainees to public curiosity because "[e]ven if the identities of the subjects of the photographs are never established ... each individual beneficiary of these treaty protections will undoubtedly suffer the personal humiliation and indignity accordant with the knowledge that these photographs have been placed in the public domain").)
The defendants do not claim that the Geneva Conventions constitute specific statutory authorization to withhold these photographs under FOIA's exemption 3, § 552(b)(3), but rather that FOIA should be read to be consistent with the Geneva Conventions, see Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains...."). We note that "[r]espect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty," El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168-69, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), so long as it has been "consistently adhered to by the Executive Department of the Government," Sullivan v. Kidd, 254 U.S. 433, 442, 41 S.Ct. 158, 65 L.Ed. 344 (1921). The defendants'
As an initial matter, the government does not currently interpret the Geneva Conventions to prohibit dissemination of photographs or videos of detainees when those detainees are not identifiable. (See, e.g., Jennifer K. Elsea, Congressional Research Service Report for Congress: Lawfulness of Interrogation Techniques under the Geneva Conventions, at CRS-19 (2004)) ("[T]he Department of Defense interprets the [Third Geneva Convention] to protect POWs from being filmed or photographed in such a manner that viewers would be able to recognize the prisoner. Photos and videos depicting POWs with their faces covered or their identities otherwise disguised [do] not, in the view of the Department of Defense, violate GPW art. 13."). However, the defendants note that the government's current practice does not allow dissemination of photographs of detainees being abused, even if they are not identifiable. (Appellants' Br. 52-53; Appellants' Reply Br. 23-25.) The defendants argue that a photograph of abuse is so humiliating that its dissemination always opens the detainee to "public curiosity," even if the detainee cannot be identified. But this was not always the government's interpretation of the Geneva Conventions.
Prior to this litigation, the United States has not consistently considered dissemination of photographic documentation of detainee mistreatment to violate the public curiosity provisions of the Geneva Conventions, at least not when the detainee is unidentifiable and the dissemination is not itself intended to humiliate. The 1929 Geneva Conventions, in force during World War II, provided prisoners of war the same protection from "public curiosity" that the Third and Fourth Geneva Conventions offer to prisoners of war and civilians. Compare Convention Relative to the Treatment of Prisoners of War art. 2, July 27, 1929, 47 Stat. 2021 ("[Prisoners of war] must at all times be humanely treated, and protected, particularly against acts of violence, insults and public curiosity.") with Third Geneva Convention, supra, art. 13 ("Prisoners of war must at all times be humanely treated.... Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."). At the end of the war, the United States government widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. (Declaration of Scott F. Horton, Apr. 27, 2005, ¶ 17.). These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable.
The government responds that the individuals in the World War II photographs were not in the military custody of the United States, and thus the United States was under no duty to protect them from public curiosity. Therefore, the argument continues, there is no inconsistency between the United States' actions in publicizing photographs documenting German and Japanese detainee abuse and its current position that publicizing photographs documenting its own abuse of detainees would violate the Geneva Conventions. On this clever interpretation, the United States at the end of World War II was properly facilitating "public curiosity," but Nazi Germany and Imperial Japan were obligated by the 1929 Geneva Conventions to defeat those efforts to document their
Further, the defendants' contention that documentation of detainee abuse constitutes public curiosity is impossible to square with the United States' role as the lead prosecuting party of Imperial Japanese General Sadao Araki and others before the International Military Tribunal for the Far East ("IMTFE"). In that case, the IMTFE found the Japanese government's censorship of photographs depicting mistreatment of prisoners of war to be evidence of the government's complicity in war crimes, including violations of the 1929 Geneva Conventions. See United States v. Sadao Araki (Int'l Mil. Trib. for the Far East Nov. 4-12, 1948), reprinted in 60 International Law Studies 437, 460-67, 472-76 (Howard S. Levie ed.1979). The United States' leading role in that prosecution would have been odd, to say the least, if the United States at the time took the position that the dissemination of photographs showing prisoners of war subject to mistreatment was itself a war crime.
In light of this contrary past practice, we do not defer to the government's current litigation position concerning the meaning of the "public curiosity" provisions of the Third and Fourth Geneva Conventions. See, e.g., Perkins v. Elg, 307 U.S. 325, 339-49, 59 S.Ct. 884, 83 L.Ed. 1320 (1939) (declining to defer to executive's interpretation of treaty in light of past practice of contrary interpretation of similar treaties). We hold that Article 13 of the Third Geneva Convention and Article 27 of the Fourth Geneva Convention do not prohibit dissemination of images of detainees being abused when the images are redacted so as to protect the identities of the detainees, at least in situations where, as here, the purpose of the dissemination is not itself to humiliate the detainees. (Cf. Appellants' Br. 53 (considering possibility of detainees being "subjected to mistreatment through the streets" while hooded).) This construction is consistent with the past practice of the United States. It is also the construction publicly adopted by the International Committee for the Red Cross ("ICRC"), which has "had a significant influence on the interpretation of Article 13," (Cummings Decl. 17). See Pics "Not Breaching Convention," News24.com (May 21, 2004), h ttp://www. news24.com/News24/World/Iraq/0,,2-10-1460-1530825,00.html (noting that ICRC spokesperson stated that photographs of detainee abuse could be released if faces and identifying features are obscured).
More importantly, this construction is consistent with the purpose of furthering humane treatment of captives, which animates Article 13 of the Third Geneva Convention and Article 27 of the Fourth Geneva Convention. See Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291 F.3d 145, 153 n. 7 (2d Cir.2002) ("A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose." (quoting Vienna Convention on the Law of Treaties art. 31.1, May 23, 1969, 1155 U.N.T. S. 331)); see also Int'l Comm. for the Red Cross, Commentary: Convention (II) Relative to the Treatment of Prisoners of War 140 (Jean S. Pictet ed.1960), available at http://www.icrc.org/ihl.nsf/COM/375-590017 ("The requirement that protected persons must at all times be humanely treated is the basic theme of the Geneva Conventions.") [hereinafter ICRC Commentary];
As the Third and Fourth Geneva Conventions do not prohibit disclosure of photographs of detainee abuse when, as here, the photographs are redacted and the disclosure is not itself intended as an act of humiliation, no need arises to alter the standard analysis under FOIA's exemption 6 and 7(C) in order to construe that statute to be consistent with those conventions. Therefore, the defendants' expressed desire to comply with the Geneva Conventions does not elevate the privacy interests in withholding the redacted Army photos above a de minimis level.
CONCLUSION
As stated above, the defendants have failed to identify an individual who could reasonably be expected to be endangered within the meaning of exemption 7(F). The district court's redactions are sufficient to render inapplicable exemptions 6 and 7(C), even in light of the Third and Fourth Geneva Conventions. Accordingly, we affirm.
FootNotes
5 U.S.C. § 552(b) (1967).
5 U.S.C. § 552(b) (1974); see also Pub.L. No. 93-502, § 2, 88 Stat. 1561, 1563-64 (1974) (amending FOIA exemptions).
5 U.S.C. § 552(b)(7) (1986).
Northwestern, 362 F.3d at 929. Northwestern, however, based its holding not on this hypothetical privacy analysis but on the patients' fear of recognition and retaliation in light of the highly charged political controversy regarding abortion; the possibility that many pregnant women would not understand the redactions to protect their privacy; and the high likelihood of actual recognition despite the redactions. Id. at 928-29. Northwestern is thus inapplicable here.
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