Legal Opinion: GMP-0089

Index: 7.360

Subject: FOIA Appeal: Names and Addresses on Complaints Re PFCRA

June 19, 1992

Kenneth Joel Haber, Esq.

Law Office of Kenneth Joel Haber, P.C.

17033 Briardale Road

Rockville, Maryland 20855

Dear Mr. Haber:

This is in response to your April 16, 1992 Freedom of

Information Act (FOIA) appeal. You appeal the March 18, 1992

denial by Anna-Marie Kilmade Gatons, Director, Executive

Secretariat. Ms. Gatons withheld under Exemptions 6 and 7(C) the

names and addresses on complaints mailed to potential defendants

in Program Fraud Civil Remedies Act (PFCRA) matters. Ms. Gatons

indicated that, pursuant to 24 C.F.R. 28.21, the names of

potential defendants in PFCRA actions could not be released under

the FOIA until complaints and answers were filed with the Office

of Administrative Law Judges, thus making the information part of

the public record. Premature release of this information would

violate the individual\'s personal privacy under FOIA Exemptions 6

and 7(C). Moreover, release of the information in advance of a

public record could subject the individuals involved to unfair

inferences and intrusions. Therefore, I have determined to

affirm the initial denial.

Exemption 6 of the FOIA protects information in medical and

personnel files and \"similar files\" the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy.

The Supreme Court in Department of State v. Washington Post,

456 U.S. 595 (1982), gave \"similar files\" a broad meaning under

Exemption 6 to cover detailed Government records and files

concerning an individual, when such files can be identified as

applying to that individual. The Court made clear that any

identifiable information which \"applies to a particular

individual,\" meets the threshold requirement for Exemption 6

protection. Id. at 602.

Any stated purpose for release of personal privacy

information must also satisfy the new public interest

determination of United States Department of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S. 749 (1989)

(hereinafter \"Reporters Committee\"). Reporters Committee

established a new framework for analyzing public interest

determinations as applicable to Exemptions 6 and 7(C). Under

Reporters Committee, the court held that only the furtherance of

FOIA\'s core purpose of informing citizens about \"what their

Government is up to\" can warrant the release of information

containing individual privacy interests. Reporters Committee,

489 U.S. at 772-73.

2

In regard to your appeal, I have concluded that disclosure

of the identities of potential defendants facing possible Agency

administrative action for alleged violations of Federal law, and

prior to the filing of a formal charge before an ALJ, would

constitute a clearly unwarranted invasion of personal privacy.

Moreover, the Government has a strong interest in assuring due

process to potential defendants and precluding premature or

unwarranted disclosures regarding an individual\'s alleged

improper conduct or activities. Stern v. FBI, 737 F.2d 84, 91-92

(D.C. Cir. 1984); see also Dunkelberger v. Department of Justice,

906 F.2d 779, 781 (D.C. Cir. 1990).

While I can appreciate your interest in offering your legal

services to potential defendants, your stated purpose to use the

information in direct mail advertising is not a sufficient public

purpose to outweigh the personal privacy exemption.1 Courts

have traditionally held no public benefit in the release of

privacy information for commercial purposes. Minnis v. U.S.

Department of Agriculture, 737 F.2d 784, 786 (9th Cir. 1984),

cert. denied, 105 S. Ct. 2112 (1985); HMG Marketing Associates v.

Freeman, 523 F. Supp. 11, 14 (S.D. N.Y. 1980). Therefore, I have

determined to affirm the initial denial. I have also determined

that, pursuant to 24 C.F.R. 15.21, the public interest in

assuring the personal privacy of individuals militates against

release of the withheld information.

1Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988),

does not involve whether there is an overriding public interest

in disclosure under the FOIA for the Government to release names

of potential defendants for direct-mail advertising by lawyers

for pecuniary gain. The Supreme Court, in Shapero, held that

States could not, consistent with the First and Fourteenth

Amendments, categorically prohibit lawyers from soliciting

business for pecuniary gain by sending nondeceptive letters to

potential clients known to face legal problems. The

Constitutional protection for direct-mail legal advertising,

however, does not provide a basis for requiring Government

disclosure of the names of potential defendants for such mail

solicitation.

3

Please be advised that you have the right to judicial review

of this determination under 5 U.S.C. 552(a)(4).

Very sincerely yours,

C.H. Albright, Jr.

Principal Deputy General Counsel

cc: Yvette Magruder

Phillip Kesaris