UNITED STATES DEPARTMENT OF JUSTICE, ET AL., PETITIONERS V.
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ET AL.

   No. 87-1379

   In the Supreme Court of the United States

4 October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Reply Brief for the Petitioners

   The Freedom of Information Act (FOIA), 5 U.S.C. (& Supp. IV) 552,
provides a broad mandate to "open agency action to the light of public
scrutiny" (Department of the Air Force v. Rose, 425 U.S. 352, 372
(1976)).  Yet its drafters recognized that allowing ready access to
the federal government's vast accumulations of individualized data
would invade personal interests that fall within the broad concepts of
"privacy." Congress addressed that problem by providing an exemption
that it described as protecting interests "equally important" as the
basic policies of FOIA.  /1/ And, unlike its approach to other FOIA
exemptions, Congress directed that privacy interests be protected not
by outright exemption of defined categories of information, but by
case-by-case balancing of the privacy and public interests involved.

   Respondents attempt to truncate the balancing process by narrowly
defining the range of "privacy" interests to be considered and by
invoking a virtual per se rule that one has no "legitimate" interest
in the practical obscurity of widely scattered and frequently
unindexed "public records." And, although respondents appear to agree
with much of our criticism of the court of appeals' approach to the
"public interest" side of the balance, they again seek to avoid a real
weighing of interests by insisting that any information regarding the
backgrounds of government contractors readily outweighs the privacy
interests at stake.  In both respects, respondents' analysis fails to
give full effect to the privacy protections Congress intended.

   1. a. Although the term "privacy" is applied to a variety of legal
interests, including common law rights and constitutional rights, the
question before the Court in this case is a matter of statutory
construction:  What range of interests did Congress intend the courts
to consider in determining whether a given disclosure would be an
"unwarranted (or clearly unwarranted) invasion of personal privacy" (5
U.S.C. (& Supp. IV) 552(b)(6) and (7)(C))?  Respondents attempt to
restrict the range of such privacy interests.  For example, they
dismiss the "mere" possibility that the release of particular
information may be embarrassing or even harmful to individuals,
characterizing the "subjective" desire for privacy as unworthy of
consideration (Resp. Br. 9-12, 27-28).  Respondents insist that
privacy interests in nondisclosure can be considered only when they
relate to a "legitimate, objectively reasonable expectation" of
secrecy (id. at 9).  In accordance with that formulation, respondents
invoke the law of torts or constitutional theories of privacy to show
that individuals have no "right" of privacy with respect to their
criminal history records (Resp. Br. 13-14, 18, 21-23, 29, 32;  see
also American Newspaper Publishers Association et al. (ANPA) Br. 13).

   Respondents' denial of a privacy "right" in this context is true in
a sense but irrelevant to a proper FOIA analysis.  We have never
argued that the subjects of FBI criminal history records have a
"right" to prevent the dissemination of such information.  /2/ Indeed,
the FBI disseminates that information for a number of statutorily
authorized purposes.  Nor could an individual with a criminal record
invoke a tort-based "right" to prevent the press from publishing any
records that it obtained.  Cox Broadcasting Corp. v. Cohn, 420 U.S.
469 (1975).  The lack of enforceable "rights," however, in no way
negates the existence of strong privacy interests regarding such
information, and respondents err in supposing that only privacy
interests that give rise to such rights should be considered under
FOIA.

   The fallaciousness of respondents' position is demonstrated by
examples of matters that the courts have held to raise important
"privacy" concerns under FOIA.  The court in Baez v. United States
Dep't of Justice, 647 F.2d 1328 (D.C. Cir. 1980), upholding an
Exemption 7(C) claim, noted that "(t)here can be no clearer example of
an unwarranted invasion of personal privacy than to release to the
public that another individual was the subject of an FBI
investigation" (id. at 1338 (quoting defense affidavit);  see also
Fund for Constitutional Gov't v. National Archives & Records Serv.,
656 F.2d 856, 864-865 (D.C. Cir. 1981)).  That correct result is
inconsistent with respondents' focus on privacy "rights," for the
subjects of FBI investigations have no "underlying right" to prevent
government disclosure of such facts (which may be necessary to aid in
apprehension or for other important law enforcement purposes), nor do
they have any "legitimate expectation" of secrecy in such matters.
See Paul v. Davis, supra;  see also Pet. Br. 22 n.6.

   Thus, respondents' extensive discussions of cases involving the
tort law of privacy concerning public records (e.g., Resp. Br. 21-23,
29, 33) are largely beside the point.  Whether one focuses on the
First Amendment, as in Cox Broadcasting, or on tort principles as
such, those cases involve altogether different considerations,
particularly the freedom of persons to speak of public record facts
that they have learned.  That such cases have found the subjects'
interest in privacy outweighed by the great value our jurisprudence
places on matters of "pure expression" (Cox, 420 U.S. at 495) does not
mean that the privacy interests have no weight of their own.  /3/ On
the contrary, the willingness of at least some courts and commentators
to let such privacy interests override even the right of free
expression (see Pet. Br. 21-22 & n.5) indicates the importance of
those interests.

   Nor does the balance that is struck in tort law or First Amendment
cases dictate the outcome of the very different balance when persons
seek to obtain information, rather than publish information they have
already obtained.  There is no general constitutional right of access
to information held by the government.  See generally Houchins v.
KQED, Inc., 438 U.S. 1 (1978).  The interest of persons in access to
government information is, moreover, different from -- and weaker than
-- that in publishing whatever information they obtain.  See
Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 20 (1986)
(Stevens, J., dissenting).  The Court recognized that difference in
Cox Broadcasting, indicating that, although the States cannot penalize
the publication of public record information once obtained, the
decision whether to release such information is a distinct policy
question to be addressed by "political institutions" (420 U.S. at
496).  Here, Congress has determined that release should not take
place if it "could reasonably be expected to constitute an unwarranted
invasion of personal privacy" (5 U.S.C. (Supp. IV) 552(b)(7)(C)).

   The legislative history of Exemption 6 evinces a broad purpose to
exclude from mandatory disclosure "those kinds of files the disclosure
of which might harm the individual." H.R. Rep. 1497, 89th Cong., 2d
Sess. 11 (1966), FOIA Source Book 32 (emphasis added).  Thus, contrary
to respondents' contentions, the potential of information to harm or
embarrass the individual subject is at the heart of the "privacy"
concerns expressed by Congress.  /4/ Although the interest of the
individual in controlling the dissemination of information about
himself may be outweighed in particular instances by a public interest
in disclosure, there is no support for respondents' position that a
court should not even consider that individual interest unless it
rises to the level of a constitutional or tort-based "right." /5/

   b. A second flaw that pervades respondents' arguments is their
focus on underlying records of arrests, indictments, and convictions,
rather than on the compilations at issue here, which raise distinct
privacy concerns that respondents ignore.  For example, respondents
discuss at length the "public" nature of the various steps of the
criminal justice process, arguing the importance of exposing those
events to public view and decrying the possibility of "secret"
criminal proceedings (Resp. Br. 13-20).  Such arguments are
misdirected, for we have never argued that an arrest -- much less an
indictment or conviction -- is a "'private occurrence.'" /6/ It is an
altogether different question, however, whether unlimited public
access to a federal government file that collects millions of arrest
and conviction records from thousands of scattered and often obscure
sources implicates "personal privacy."

   Respondents deny that the large-scale compilation of criminal
history records can make any difference for FOIA purposes (Resp. Br.
26).  The simple notion that "(t)he focus of FOIA is on information"
(ibid.), however, does not answer this complex question.  Although
this Court held in FBI v. Abramson, 456 U.S. 615 (1982), that records
remain "law enforcement" records for Exemption 7 purposes even when
they are incorporated into other kinds of records, it distinguished
the case of internal agency records, which can lose their exempt
status under Exemption 5, 5 U.S.C. 552(b)(5), by inclusion in final
agency decisions (456 U.S. at 630).  In each instance, the result is
dictated by the purposes behind the particular exemption invoked
(ibid.).  Thus, the question here is whether the purpose of Exemptions
6 and 7(C) call for the courts to take account of or to ignore the
distinct nature of large-scale compilations of data on individuals.

   Congress was specifically aware of the "privacy" concerns that were
frequently voiced about government data banks, including criminal
history data banks.  See Pet. Br. 24-30.  Before the 1974 FOIA
amendments, Congress and others focused a great deal of attention on
those issues -- consistently under the rubric of "privacy" (ibid.).
Respondents miss the point of these developments (Resp. Br. 34-39).
Of course, the consideration of various legislative proposals
regarding criminal history records does not in itself show that
Congress intended to bar disclosure under FOIA;  but it does reflect
an understanding of the range of interests comprised within the term
"privacy," as Congress used it in Exemption 7(C).

   Respondents mischaracterize our discussion of the Privacy Act of
1974, 5 U.S.C. 552a, and its legislative history as an attempt to
equate Privacy Act exemptions with FOIA exemptions (Resp. Br. 36-39).
The Privacy Act is relevant specifically because its history reflects
a clear congressional understanding that the term "privacy" includes
the interest in limiting the dissemination of information collected in
large government data banks, even when that information has its origin
in "public" sources (see Pet. Br. 29-30;  Pet. App. 44a (Starr, J.,
dissenting)).  Respondents acknowledge that the Privacy Act's
provisions are "not limited to private facts" (Resp. Br. 38), but they
fail to grasp the significance of that proposition.  Just as the
Privacy Act is premised on a broader concept of "privacy" than
respondents would prefer, Exemption 7(C) of FOIA -- passed
contemporaneously with the Privacy Act -- is based on a similarly
broad concept of privacy and should be interpreted accordingly.

   In failing to focus on the distinct problems of large-scale
compilation of records, respondents also ignore or greatly
underestimate the serious practical difficulties faced by both the
government and the subjects of such files.  Respondents' only answers
to the well-documented and serious difficulties that the wide
dissemination of criminal history creates for the individual subjects
(Pet. Br. 33-34) are either to suggest speciously that considerations
of "fairness" are not at issue (Resp. Br. 19) /7/ or to tout the
"condemnation" of criminal violators -- including, apparently, the use
of bare arrest records by private employers and credit bureaus -- as a
positive virtue of their position (id. at 27, 30;  see also ANPA Br.
14-15).  Some degree of such harms may be inherent in the criminal
justice process, but the question here is whether FOIA was intended to
increase those harms by affording instant, nationwide availability to
records that would otherwise be obscure.  In light of Congress's
express intent to bar disclosure of information that "might harm the
individual" (H.R. Rep. 1497, supra, at 11, FOIA Source Book 32), it is
difficult indeed to see such disclosures as consistent with FOIA,
unless they serve the sort of public interests FOIA sought to advance.

   Moreover, the practical difficulties inherent in the maintenance of
large data banks, such as the FBI's rap sheet files, are not answered
by respondents' glib assertion that the FBI should simply make sure
that there are no inaccuracies in its criminal history records (Resp.
Br. 34 n.26).  The reality is that mistakes will occur, and that the
release of inaccurate information will be extremely harmful to the
individuals affected.  /8/ Respondents also do not face up to the
administrative dilemma that their narrow view of "privacy" would
create.  Under the court of appeals' holding, the existence of any
privacy interest in particular information would turn on whether, as a
matter of fact, that information is "publicly available" (Pet. App.
41a-42a).  However, for a variety of reasons -- varying local
practices, unreported expungements, or even lost records -- that fact
is often not known to the FBI when it receives an individual request.
Protection of even those privacy interests that the court of appeals
would acknowledge thus requires the agency to undertake new factual
inquiries.  Respondents' answer to this problem -- that the FBI should
"presume" public availability (Resp. Br. 39-40 n.31) - would simply
have the FBI ignore the privacy interests that Congress intended it to
safeguard.  /9/ The real answer to this dilemma is to recognize that
it is the consequence of respondents' erroneously cramped view of
"privacy." If, consistent with FOIA's legislative history, that term
is read to encompass the distinct problems associated with
compilations of obscure, scattered records, the FBI will be able to
make a practical assessment of the privacy interests at stake without
need for contrived presumptions of public availability.

   c. Respondents' position also is inconsistent with United States
Dep't of State v. Washington Post Co., 456 U.S. 595 (1982), in which
this Court rejected the argument -- made in a somewhat different form
-- that matters of "public record" are beyond the scope of the FOIA
privacy exemptions.  As noted above, respondents criticize our
invocation of broad definitions of "privacy" as entailing the interest
of individuals in controlling the dissemination of information about
themselves.  See Resp. Br. 27;  Pet. Br. 20-21.  Although respondents
themselves nowhere state a clear definition of "privacy," the
terminology they invoke is that of "intimate details," recalling the
threshold test they advanced, and this Court rejected, in Washington
Post.  Resp. Br. 10;  see also ANPA Br. 11-12, 14.  /10/

   Washington Post focused not on the balancing test but on the
"similar files" threshold of Exemption 6, which respondents and their
supporting amici read as excluding any information reflected in
"public records." The arguments made in support of that proposition,
however, were very similar to those made now.  In particular,
respondents in that case argued that the "public records" at issue
there were necessarily without "privacy" implications, urging that
such records "would not be eligible for withholding under Exemption 6
no matter how that term (i.e., similar files") is interpreted" (Brief
for the Respondent at 24-34, United States Dept. of State v.
Washington Post Co., supra)."

   This Court rejected those arguments and remanded the case for
consideration of "the effect of disclosure upon the privacy interests
of (the subjects)" (456 U.S. at 603).  Respondents now see in that
disposition no impediment to their argument that there can be no
privacy interest in "public record" information, but their view would
render this Court's remand in that case a pointless formality:  since
the only information sought in that case was matter of public record
"somewhere in the Nation," there would have been nothing for the lower
courts to balance if respondents' view of "privacy" interests were
correct.

   In seeking to avoid outright conflict with Washington Post,
respondents struggle -- as did the court of appeals -- to articulate
some limitation on their stance that there is no "legitimate" privacy
interest in matters of "public record," no matter how obscure as a
practical matter.  Respondents suggest that "(t)here may be matters
that are reflected in some public records that could properly be
withheld (under FOIA)" (Resp. Br. 25-26 n.16), but they fail to
specify any types of records that might qualify for such treatment or
to explain how such a result could be squared with their "legitimate
expectations" premise.  Respondents also invoke the court of appeals'
means of avoiding outright conflict with Washington Post, by
suggesting that a showing of "particular harm" might give rise to a
privacy interest (Resp. Br. 28).  Apart from the inadequacy of that
approach for reasons we have discussed (Pet. Br. 33 n.20), it is
inconsistent with respondents' insistence elsewhere that harm to the
individual is insufficient to create a "privacy" interest (Resp. Br.
11).

   In sum, both respondents' insistence on "legitimate expectations"
of privacy "rights" and the court of appeals' dismissal of the privacy
concerns posed by the dissemination of compilations of otherwise
public records as "insignificant" (Pet. App. 20a) represent attempts
to impose artificial limitations on the range of privacy interests to
be considered.  Both the legislative history of FOIA and this Court's
approach in previous Exemption 6 cases, however, show that the proper
approach is to take the full range of such interests into account, and
to consider the "public record" status of information -- along with
all other relevant factors -- in the judicious balancing of interests
that Congress mandated.

   2. Once the proper range of relevant privacy considerations is
identified, the analysis under FOIA's privacy exemptions turns to a
balancing of such considerations against the public interest in
disclosure.  See Rose, 425 U.S. at 373.  As we have noted (Pet. 22;
Pet. Br. 39), the court of appeals' most drastic departure from
existing FOIA law in the present case was its holding that a court's
assessment of the "public interest" for this purpose requires no
evaluation of the particular information being sought, but simply a
recognition of the overall disclosure policies of FOIA itself.  In
this Court, no one has attempted to defend the court of appeals'
approach to this issue.

   The parties and amici are not entirely in agreement, however, as to
the type of analysis that should be used in place of that of the court
of appeals.  Our own approach to this issue is founded on the policies
of FOIA itself:  in assessing whether a particular invasion of privacy
is "unwarranted," a court should consider whether disclosure is
supported by the essential policies of FOIA itself, of "open(ing)
agency action to the light of public scrutiny" (see Rose, 425 U.S. at
372).  This obviously requires specific consideration of the
particular information sought:  although disclosure of the FBI rap
sheet of "one's otherwise inconspicuously anonymous next-door
neighbor" (Pet. App. 45a (Starr, J., dissenting)) surely does not
advance FOIA's goals, disclosure of the rap sheet of a high-ranking
government official may do so, if it reflects crimes that call into
question the official's ability to perform public duties competently
and honestly.

   Respondents themselves do not appear to take issue with our basic
approach to the public interest side of the balance, geared to the
"core purposes" of FOIA.  In arguing for disclosure in the present
case, respondents argue that disclosure will serve the "basic purpose"
of FOIA (Resp. Br. 41, 45 (citing NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978)).  Although we disagree strenuously with
respondents' assessment of the extent to which the records at issue in
the present case touch on FOIA's core purposes, we and they are in
apparent agreement as to the essential test of the "public interest."
/12/

   Some amici, however, do attack our focus on FOIA's core purposes in
assessing the public interest in disclosure (e.g., NARFE Br. 11-13).
Yet, in their attempts to deny the existence of ascertainable "core
purposes" of FOIA, they only succeed in restating them.  The need to
obtain information "'to evaluate federal programs and formulate wise
policies'" (id. at 11, quoting Soucie v. David, 448 F.2d 1067, 1080
(D.C. Cir. 1971)), for example, is among the core purposes we have
articulated.  And, although the legislative history of FOIA indeed
invokes James Madison's words about the power of knowledge (see NARFE
Br. 11-12), the purpose of that knowledge -- i.e., to ensure that the
people can "be their own governors" -- shows again that FOIA is
directed chiefly to illuminating the workings of government to enable
citizens to make informed political choices.

   Contrary to NARFE's repeated assertions that a core purposes test
is "unworkable," Congress itself has articulated just such a test in
the provision of FOIA that waives or reduces fees "if disclosure of
the information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government" (5 U.S.C. (Supp. IV) 552(a)(4)(A)(iii)).
 That standard shows that, in Congress's view at least, there is
indeed a principled and workable means of assessing the public
interest in the release of particular information.  In denying the
usefulness of this approach, NARFE falls into the same trap as the
court of appeals by failing to recognize that a court can meaningfully
assess "the interest of the general public in release of the records
themselves" (Pet. App. 26a).

   Amici Public Citizen et al. argue that various "weighty objectives"
apart from the purposes of FOIA itself may be served by the disclosure
of information subject to the privacy exemptions (Pub. Citizen Br.
18-19).  It is unclear, however, why FOIA should be construed to
further those objectives, which by hypothesis were not a purpose of
FOIA's enactment, at the expense of the personal privacy concerns that
Congress expressly acknowledged and addressed in the statute.  The
awkwardness, standardlessness, and unpredictability of allowing
federal judges to invade personal privacy whenever they think any
countervailing objective is sufficiently "weighty" is what properly
led the court below to seek a less "idiosyncratic" approach (Pet. App.
21a-23a).  The court went too far in insisting that every approach to
this issue is necessarily standardless, but the court was hardly
unjustified in eschewing the approach that amici now advocate, in
which the "public interest" depends not on identifiable concerns of
FOIA itself but on the ingenuity of counsel in identifying an
objective that will strike the judge as worthy.  A focus on the
policies of FOIA itself solves this problem and provides a principled
structure for the public interest analysis (see Pet. Br. 45-47).

   3. As noted above, respondents themselves invoke the "basic
purpose" of FOIA, and they attempt to characterize the materials they
seek as information the disclosure of which is "needed to check
against corruption and to hold the governors accountable to the
governed" (Resp. Br. 41, 45 (quoting NLRB v. Robbins Tire & Rubber
Co., 437 U.S. at 242)).  These attempts fail, however, since
respondents can establish no logical connection between such vaunted
public interests and any information actually at issue in this case.

   Respondents repeatedly emphasize that the ultimate target of their
investigations was a matter that would raise a significant public
interest -- uncovering possible corruption by a Member of Congress.
That fact alone, however, falls far short of establishing that any and
all information respondents seek serves that public interest
sufficiently to warrant a significant invasion of privacy.  The
district court properly recognized that, in order for the release of
information to be warranted under Exemption 6 or 7(C), there must be
some logical connection between the information at issue and the
public interest (Pet. App. 57a).

   Respondents criticize the district court for drawing the conclusion
that the value to the public of any information actually at issue in
this case is insignificant.  They argue that the public should "decide
for itself" the significance of any information (Resp. Br. 42 (quoting
Washington Post Co. v. United States Dep't of HHS, 690 F.2d at 264)).
Respondents' argument, however, proves too much.  The case they cite
(unlike the present one) involved a situation where the information
sought plainly had a logical connection to a distinct public interest,
/13/ and the court merely pointed out that the goal of FOIA is to let
the public decide "for itself" whether the government was taking
proper steps in light of this information.  When the question is
whether there is any such logical connection at all, however, FOIA
obviously does not require that the public decide the relevance of
every item "for itself";  that would be to require disclosure to the
public as a step in the very balancing process mandated by the statute
to determine whether disclosure is warranted.  Congress has instead
entrusted the task of balancing the public and private interests at
stake to the agencies, subject to de novo review by the courts.  /14/

   In their attempt to substitute a per se rule for the careful
assessment of the public interest in disclosure mandated by the
statute, respondents assert that there was a significant public
interest in "(a)ny evidence" of a criminal record by any of the
principles of Medico Industries (Resp. Br. 47).  That unsupported
assertion sweeps far too broadly and would eviscerate the protections
of the FOIA privacy exemptions for large classes of persons.  To use a
hypothetical example, a 30-year-old arrest for disorderly conduct,
which did not lead to an arrest, would not bear on the fitness of a
firm controlled by the arrestee to perform government contracts.  For
the reasons discussed above, release of such information would
significantly invade that arrestee's privacy interests, and it is
plain that such an invasion of privacy would in no way be "warranted"
by any discernible public interest.  But respondents' approach to this
issue would require release of such information, and presumably of any
personal information involving any government contractor or any
government employee.  Such a ready finding of a public interest in
disclosure would mock Congress's determination to temper FOIA's
policies of disclosure with protection of "certain equally important
rights of privacy" (S. Rep. 813, 89th Cong., 1st Sess. 3 (1965), FOIA
Source Book 38).

   Respondents also stress the "newsworthy" nature of the events
surrounding Representative Flood and the Medicos (Resp. Br. 43-44).
As with their privacy discussion, however, here respondents confuse
the freedom to publish information with their interests in obtaining
it.  We would not dispute the proposition that the Medicos were
"newsworthy" in some sense, and, as noted above, respondents doubtless
enjoy a broad right to publish such information as they can obtain.
Those considerations do not, however, show that there is any
connection between the information they seek and the sort of public
interests served by FOIA.

   We cannot, of course, state here what information, if any, is to be
found in the records respondents seek.  /15/ But there is no reason to
think that the judges who have actually examined any withheld records
-- and rejected respondents' position -- have ignored the interests
that respondents propound.  A connection between the records and the
public interest would be most obvious if the subject himself were a
public official, but it is also conceivable that the requisite public
interest would be present if there were any records tending to show
that contracts were improperly awarded, that Medico Industries was
unqualified to receive government contracts, that contract performance
was inadequate, or that there was "corruption" of any sort surrounding
any government contracts.  If, however, a court reviewing the material
in camera -- as the district court did -- can satisfy itself that the
information at hand has no logical connection to any such public
interests, then it should not order the disclosure of information that
touches on important privacy concerns.  That is precisely what the
district court did in the present case (Pet. App. 57a-58a, in a
judgment confirmed by the only member of the court of appeals who
purported to engage in a balancing of interests (Pet. App. 49a).  This
Court too is fully capable of examining any withheld records in light
of respondents' arguments and reaching what we believe to be the
inevitable conclusion:  that there are no records in this case imbued
with a sufficient public interest to overcome the privacy interest of
Charles Medico.

   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1988

   /1/ See S. Rep. 813, 89th Cong., 1st Sess. 3 (1965), reprinted in
Subcomm. on Administrative Practice and Procedure, Senate Comm. on the
Judiciary, 93d Cong., 2d Sess., Freedom of Information Act Source
Book:  Legislative Materials, Cases, Articles 38 (Comm. Print 1974)
(hereinafter FOIA Source Book).  The uniquely important personal
interests served by Exemption 6, 5 U.S.C. 552(b)(6), and the even
broader Exemption 7(C), 5 U.S.C. (Supp. IV) 552(b)(7)(C), render inapt
respondents' insistence that the exemptions at issue here be "narrowly
construed" (Resp. Br. 27 (quoting United States Dep't of Justice v.
Julian, No. 86-1357 (May 16, 1988), slip op. 6)).  Moreover, as this
Court has also noted, all of the FOIA exemptions are integral parts of
the Act itself and serve distinct congressional policies.  See EPA v.
Mink, 410 U.S. 73, 80 (1973);  Baldrige v. Shapiro, 455 U.S. 345, 352
(1982).

   /2/ The court of appeals implied the existence of a
constitutionally based right of privacy in this area in Menard v.
Mitchell, 430 F.2d 486, 490-492 (D.C. Cir. 1970), but that implication
is effectively discredited by Paul v. Davis, 424 U.S. 693 (1976).

   /3/ Similarly, the academic writings that ANPA cites (ANPA Br.
12-15) questioning the advisability of recognizing a general "right"
to control information about oneself are beside the point, since they
focus on tort law, and not on access to information.  Moreover, the
author of the article on which ANPA principally relies acknowledged
that his stance on these issues is well out of the mainstream, and
bemoaned the "legislative trend" toward greater protection of personal
privacy.  See Posner, The Right of Privacy, 12 Ga. L. Rev. 393, 404,
406 (1978).

   /4/ Although respondents invoke the principle -- borrowed from
Fourth Amendment jurisprudence -- of one's "legitimate expectation of
privacy," they make only a brief and unsuccessful effort to relate
that principle to FOIA itself (Resp. Br. 11-12).  The cases
respondents cite do not support the proposition that the balancing of
interests under Exemptions 6 and 7(C) is limited to areas of such
"legitimate expectations";  on the contrary, these cases themselves
focus on whether the information at issue is of an "embarrassing"
nature.  See Washington Post Co. v. United States Dep't of HHS, 690
F.2d 252, 262 (D.C. Cir. 1982);  International Bhd. of Elec. Workers
v. United States Dep't of Housing & Urban Dev., 593 F. Supp. 542, 544
(D.D.C. 1984), aff'd, 763 F.2d 435 (D.C. Cir. 1985).  Moreover, the
commentary that respondents cite acknowledges that protection of
individuals from harm and embarrassment was the chief goal of Congress
in enacting Exemption 6.  See Kronman, The Privacy Exemption to the
Freedom of Information Act, 9 J. Legal Studies 727, 739 (1980).

   /5/ In arguing that a focus on the embarrassing nature of
information "proves too much" (Resp. Br. 28), respondents merely
illustrate how readily the proper balancing test can be applied.
Their examples of "embarrassing" facts that should not qualify for
withholding under Exemption 6 -- those of a government official who
has abused public funds, and of a citizen who has sold government
secrets -- implicate the exact sort of public interests in responsible
government that FOIA was meant to further.  The invasion of privacy is
real and deserves to be considered, but it is plainly "warranted."

   /6/ See Resp. Br. 17 (quoting W. Rehnquist, Is an Expanded Right of
Privacy Consistent with Fair and Effective Law Enforcement?, Nelson
Timothy Stephens Lectures, University of Kansas Law School, Pt. I, at
13 (Sept. 26-27, 1974)).  The lecture that respondents quote points
out, immediately after the passage quoted by respondents, that "to
conclude that an event is not wholly private does not mean that an
individual has no interest in limiting disclosure or dissemination of
information." See also Rehnquist, Is an Expanded Right of Privacy
Consistent with Fair and Effective Law Enforcement?, 23 Kan. L. Rev.
1, 9 (1974).

   /7/ Although respondents suggest that "education" will resolve any
problems of unwarranted actions based on arrest records (Resp. Br.
19-20), the extravagantly speculative inferences respondents
themselves draw from William Medico's arrest records (id. at 47-48)
belie their attempt to characterize the problem of unfairness in the
use of such records as unimportant.  The misuse or misunderstanding of
limited information is also reflected in ANPA's unsupported
characterization of Charles Medico as a "reputed organized crime
figure" (ANPA Br. 3).

   /8/ Both respondents and ANPA argue that the problem of
inaccuracies will be alleviated by public release of such records
(Resp. Br. 34 n.26;  ANPA Br. 16).  But public dissemination of such
information is the very harm to be avoided.  Respondents' argument, if
credited, could be used to justify any invasion of privacy, on the
ground that it would allow the public to monitor the government's
collection of inaccurate or embarrassing information.  The interest of
individuals in assuring accuracy is far better served by the Justice
Department's regulations, which allow an individual to obtain access
to his own rap sheet.  See 28 C.F.R. 20.34.

   /9/ Indeed, respondents' footnote 31 now appears to abandon the
limitation of their request to "matters of public record" (J.A. 33).
Respondents now show that they do not really want petitioners to
undertake outside research into the public availability of the records
-- outside research that FOIA does not mandate (see Pet. Br. 36-39) --
but instead want petitioners to avoid such research by presuming
public availability (and thereby negating the "public record"
limitation that respondents placed on their request).  Thus, although
we believe that withholding of the requested records in this case (if
any exist) is proper even if we assume that every record at issue is a
"matter of public record" somewhere, this Court should not be misled
by assertions of respondents and their amici (e.g., ANPA Br. 9-10)
that only "public" records will be affected by the decision in this
case.

   /10/ The similarities between the present case and Washington Post
include not only the issues but the parties as well.  The Washington
Post, an amicus in the present case, was the respondent in that case,
represented by the same law firm representing the present respondents.
 Respondent Reporters Committee appeared as amicus in the earlier
case, joined by ANPA.

   /11/ Respondents' current arguments parallel those advanced in
Washington Post in other respects.  Here, as there, respondents stress
the view that harm or embarrassment to the subjects of government
information should be ignored, and that the courts should instead
focus on "legitimate expectations" of privacy.  See Brief for
Respondents at 20-23, United States Dep't of State v. Washington Post
Co., supra.  The present arguments regarding the "public" nature of
criminal proceedings, moreover, are closely analogous to those made
with respect to citizenship proceedings in Washington Post (id. at
24-27, 31-33).  See also Brief Amici Curiae of the American Newspaper
Publishers Association, et al., at 3, United States Dep't of State v.
Washington Post Co., supra ("such uniquely public information (records
of citizenship) can never be withheld from the public in the name of
'privacy'").

   /12/ In one respect, however, respondents go further than we do in
disagreeing with the analysis of the public interest issue by the
court of appeals.  Respondents attempt to insert into the analysis
consideration of the "purpose" of the specific FOIA request (Resp. Br.
41;  cf. Pet. App. 23a-24a).  For reasons we have summarized (Pet. Br.
47 n.35), we do not think that factor has an appropriate place in
Exemption 6 or Exemption 7(C) balancing.  Instead, in our view, Judge
Leventhal got it right long ago when he (and the court) repudiated the
D.C. Circuit's initial false step on this issue (Getman v. NLRB, 450
F.2d 670, 675, 677 n.24 (1971)) and explained that "(a) general
balancing of the privacy loss from release to the public and the
public interest in disclosure to the public would carry out the
discernible intent of the Senate Report without conflicting with the
Act's broad purpose to enable 'any person' to request disclosure
without making a showing that he was 'properly and directly
concerned(') with the information." Ditlow v. Shultz, 517 F.2d 166,
172 n.21 (D.C. Cir. 1975) (citations omitted;  emphasis added).

   Because respondents claim no special interest in the requested
information other than their interest in disseminating it to the
general public, it is doubtful that anything in this case turns on the
difference between the Getman approach that respondents advocate and
the Ditlow approach that we advocate.  Nevertheless, the farfetched
claims of some amici call for brief response.  The claim of amici
Public Citizen et al. (Br. 21-22) that this issue was resolved in
Department of Justice v. Julian, supra, is wrong.  Julian fashioned a
narrow exception -- in the context of applying Exemption 5 to a
request by the subject of the records -- to the general principle that
a party's rights under FOIA "are neither increased nor decreased by
reason of the fact that it claims an interest in the (requested
records) greater than that shared by the average member of the public"
(NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975);  see
also EPA v. Mink, 410 U.S. at 86).  Public Citizen's position in this
case would require the Court to fashion a new and entirely different
exception to that general principle.  Likewise, the claim by the
National Association of Retired Federal Employees (NARFE) that in all
cases other than this one the courts have followed the Getman approach
(Br. 6) is not at all accurate.  Virtually the only reasoned
discussion of the issue to be found anywhere in the case law is in
Getman v. NLRB, supra;  Ditlow v. Shultz, supra;  Washington Post Co.
v. United States Dep't of HHS, 690 F.2d 252, 258, 259 n.17 (D.C. Cir.
1982);  and United States Dep't of the Air Force v. FLRA, 838 F.2d
229, 233 (7th Cir. 1988), petition for cert. pending, No. 88-354.
Apart from Getman, which has been repudiated within its own circuit,
all of those cases support our approach.

   /13/ That case involved financial disclosures made by consultants
employed by the National Cancer Institute, which had a strong and
direct connection to the public interest in ascertaining any conflicts
of interest by such persons.  See 690 F.2d at 264.

   /14/ In light of the availability of de novo review, the charge of
amicus ANPA that our analysis would "imbue the FBI with virtually
unlimited discretion" (ANPA Br. 18) is baseless.

   /15/ Contrary to the assertions of amicus Public Citizen, there is
nothing in the least "absurd" (Pub. Citizen Br. 23) about our
continued insistence that any confirmation that Charles Medico does or
does not have a criminal record would itself give away information
that the FOIA privacy exemptions seek to protect.  The court of
appeals did not, as Public Citizen claims, "explicitly confirm()" the
existence of a criminal record (ibid.), and any passages in the
court's opinion that might seem to imply that such a record exists
(see Pet. App. 16a, 22a) are merely unfortunate -- and not necessarily
accurate -- lapses from the court's duty to safeguard, pendente lite,
the very information whose public availability is at issue.
Furthermore, if anything is "absurd," it is the sort of public
disclosure in the course of the FOIA litigation itself that Public
Citizen apparently favors -- a listing of any rap sheet entries,
indicating type, age, and nature of the offense (Pub. Citizen Br. 24)
-- which would preemptively destroy the very privacy interest that is
at issue.  Indeed, the simple statement that an individual "has a
criminal record" is itself highly damaging information, which may be
all the more harmful because it is incomplete.