United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2014 Decided May 9, 2014

No. 13-5064

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL 

LIBERTIES UNION FOUNDATION,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01157)

Arthur B. Spitzer argued the cause for appellants. With 

him on the briefs were Catherine Crump and David L. Sobel.

John S. Koppel, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With him on the brief were 

Stuart F. Delery, Assistant Attorney General, Ronald C. 

Machen Jr., U.S. Attorney, and Leonard Schaitman, Attorney.

Before: TATEL, BROWN, and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge TATEL.
2

Concurring opinion filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge BROWN.

TATEL, Circuit Judge: Three years ago, in American Civil 

Liberties Union v. U.S. Department of Justice, 655 F.3d 1 

(D.C. Cir. 2011) (ACLU I), this court held that the Freedom of 

Information Act required the Justice Department to disclose 

case names and docket numbers for prosecutions in which the 

government had obtained cellular phone tracking data without 

a warrant and the defendant had ultimately been convicted. 

The court left open the question whether the Department 

would also have to disclose docket information for similar

prosecutions in which the defendant had been acquitted or had 

the charges dismissed. Now squarely facing just that question, 

we conclude that given the substantial privacy interest 

individuals have in controlling information concerning 

criminal charges for which they were not convicted, the 

Department has properly withheld this information.

I.

In order to “open agency action to the light of public 

scrutiny,” Department of the Air Force v. Rose, 425 U.S. 352, 

361 (1976) (internal quotation marks omitted), FOIA requires 

federal agencies, “upon request, to make ‘promptly available 

to any person’ any ‘records’ so long as the request 

‘reasonably describes such records,’” Assassination Archives 

& Research Center v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) 

(quoting 5 U.S.C. § 552(a)(3)). This broad statutory mandate 

is subject to certain enumerated exemptions. See 5 U.S.C. 

§ 552(b)(1)–(9). At issue here is FOIA Exemption 7(C), 

which provides that an agency may withhold “records or 

information compiled for law enforcement purposes” if 

disclosure “could reasonably be expected to constitute an 

unwarranted invasion of personal privacy.” Id. § 552(b)(7).
3

Determining whether an invasion of privacy is “unwarranted” 

within the meaning of Exemption 7(C) requires, as the 

Supreme Court held in U.S. Department of Justice v. 

Reporters Committee for Freedom of the Press, 489 U.S. 749, 

776 (1989), “balanc[ing] the public interest in disclosure 

against the interest [in privacy] Congress intended the 

Exemption to protect.” 

In Reporters Committee, the Supreme Court considered

the applicability of Exemption 7(C) to a request for an alleged 

mob figure’s “rap sheet”—a document compiled by the FBI 

that “contain[ed] certain descriptive information, such as date 

of birth and physical characteristics, as well as a history of 

arrests, charges, convictions, and incarcerations.” Id. at 752. 

Holding that the disclosure of such rap sheets implicates a 

substantial privacy interest, id. at 771, the Court rejected the 

contention that any interest in avoiding disclosure 

“approaches zero” simply because “events summarized in a 

rap sheet have been previously disclosed to the public,” id. at 

762–63. The Court explained that an individual’s interest in 

privacy “encompass[es] the individual’s control of 

information concerning his or her person,” id. at 763, even 

though “the information may have been at one time public,”

id. at 767. Disclosure of a rap sheet, the Court found, was

particularly troubling because it would in one fell swoop 

bring to light many facts about a person that might otherwise 

be subject to little public scrutiny. See id. at 769–71; see also 

id. at 764 (emphasizing the “distinction, in terms of personal 

privacy, between scattered disclosure of the bits of 

information contained in a rap sheet and revelation of the rap 

sheet as a whole”). On the other side of the balance, the Court 

found the public interest in disclosure to be fairly limited

because a rap sheet would reveal little about “the 

Government’s activities.” Id. at 754. Thus, the Court held “as 

a categorical matter” that granting a “third party’s request for 
4

law enforcement records or information about a private 

citizen” that “seeks no ‘official information’ about a 

Government agency” would constitute an “‘unwarranted’” 

invasion of privacy. Id. at 780.

The case now before us arose after the American Civil 

Liberties Union learned that federal law enforcement agencies 

were, without first securing a warrant, obtaining data from 

cellular phone companies that could be used to track phone 

users’ whereabouts. The ACLU filed FOIA requests with the 

Drug Enforcement Administration and the Executive Office 

for United States Attorneys, seeking, among other things, 

records related to: “The case name, docket number, and court 

of all criminal prosecutions, current or past, of individuals 

who were tracked using mobile location data, where the 

government did not first secure a warrant based on probable 

cause for such data.” To compel production of these records, 

the ACLU then sued the Department of Justice.

In response, the Department identified a large number of 

prosecutions—the total count is currently 229—in which a 

judge had, since September 2001, granted the government’s 

application to obtain cell phone location data without making 

a probable cause determination. The Department refused to 

turn this list of cases over to the ACLU, claiming that the 

information fell within FOIA Exemption 7(C).

The parties each moved for summary judgment. The 

district court, then Judge Robertson, concluded that each of 

the individuals who had been prosecuted in these cases had a 

privacy interest in preventing disclosure of the requested 

information. The court went on to draw a distinction that 

neither party had directly advanced, according “a greater 

privacy interest to persons who were acquitted, or whose 

cases were dismissed or sealed (and remain under seal), and a 
5

considerably lesser privacy interest to persons who were 

convicted, or who entered public guilty pleas.” American 

Civil Liberties Union v. U.S. Department of Justice, 698 F.

Supp. 2d 163, 166 (D.D.C. 2010). Determining that “the 

public has a substantial interest in the subject of cell phone 

tracking” that would be advanced by the requested disclosure, 

the court held that “the public interest in ‘what the 

government is up to’ outweighs the privacy interests of

persons who have been convicted of crimes or have entered 

public guilty pleas; but . . . the privacy interests of persons 

who have been acquitted, or whose cases have been sealed 

and remain under seal, or whose charges have been dismissed, 

outweigh the public interest in disclosure of their names and 

case numbers.” Id. The district court therefore directed the 

Department to disclose the requested information regarding

prosecutions in which the government had secured a 

conviction but permitted it to withhold the information 

regarding the remaining cases.

Both sides appealed, and this court affirmed in part. We

began our analysis by noting that, although the ACLU sought 

only the case name, court, and docket number of these 

prosecutions, courts “evaluating the privacy impact of the 

release of information . . . have taken into consideration 

potential derivative uses of that information.” ACLU I, 655 

F.3d at 7. The derivative uses to be made with the requested 

docket information were fairly substantial: with “little work,” 

someone could “look up the underlying case files in the public 

records of the courts,” id., and could even attempt to contact 

the defendants, or their attorneys, directly, id. at 11–12. 

Nevertheless, we concluded that, with respect to those 

defendants who had ultimately been convicted, disclosure 

“would compromise more than a de minimis privacy interest, 

[but] it would not compromise much more.” Id. at 12. We 

emphasized that, unlike in Reporters Committee, the 
6

requested information pertained only to a single, relatively 

recent prosecution, the details of which were already “readily 

available to the public” and not at all “‘practical[ly] 

obscure[].’” Id. at 9 (quoting Reporters Committee, 489 U.S. 

at 762) (alteration in original). As for the public interest, we 

determined that disclosure would have the significant benefit 

of “shedding light on the scope and effectiveness of cell 

phone tracking as a law enforcement tool,” helping to “inform 

[the] ongoing public policy discussion” regarding the 

propriety of warrantless cell phone tracking. Id. at 13. “[I]n 

light of the strength of [this] public interest . . . and the 

relative weakness of the privacy interests at stake,” we held 

that the district court had correctly rejected the Department’s

contention that production of this docket information would 

represent an “‘unwarranted’ invasion of privacy under 

Exemption 7(C).” Id. at 16.

Significantly, however, we did not affirm the district 

court’s holding that information regarding acquittals, 

dismissals, or sealed cases could be withheld. We did observe

that the distinction the district court had drawn “makes some 

intuitive sense, as both parties agree that the disclosure of 

information regarding [such cases] raises greater privacy 

concerns than the disclosure of information regarding public 

convictions or public pleas.” Id. at 17. But, we continued, 

“whether that is enough of a distinction to justify withholding 

under Exemption 7(C) is a harder question.” Id. Because it 

was unclear from the record whether there were any cases that 

fell within this category, we opted to forgo resolving the

issue, instead vacating this portion of the district court’s 

decision and “remand[ing] the case for th[e] court to 

determine whether any of the docket numbers refer to cases in 

which the defendants were acquitted, or to cases that were 

dismissed or sealed.” Id.
7

Following our remand, the Department identified 214 

prosecutions that had resulted in convictions or public guilty 

pleas and released the docket information for these cases. This 

left a total of fifteen prosecutions that were responsive to the 

ACLU’s request and had ended in dismissals or acquittals, or 

had been sealed. Because the ACLU did not challenge the 

Department’s authority to withhold the information regarding 

sealed cases, only six remain at issue—four of which were

resolved by dismissal and two that ended in acquittal. 

American Civil Liberties Union v. U.S. Department of Justice, 

923 F. Supp. 2d 310, 313 (D.D.C. 2013). Having established 

that these six cases in fact existed, Judge Amy Berman

Jackson, to whom the case was assigned after Judge 

Robertson’s retirement, again granted the Department’s

motion for summary judgment. Id. at 314.

The ACLU appeals, thus presenting us with the “harder 

question” we were previously able to avoid. ACLU I, 655 

F.3d at 17. Our review is de novo. “In the FOIA context this 

requires that we ascertain whether the agency has sustained its 

burden of demonstrating that the documents requested are . . . 

exempt from disclosure under the FOIA.” Id. at 5 (internal 

quotation marks omitted).

II.

As in our previous decision, we begin by assessing the 

privacy interest at stake. The Department argues that 

“prosecuted-but-not-convicted individuals are . . . in a similar 

position to persons investigated or arrested but not 

prosecuted,” and that this court has “accord[ed] a strong 

privacy interest to such individuals.” Appellee’s Br. 19. The

ACLU argues that the privacy interests of defendants whose 

prosecutions resulted in dismissals or acquittals are only 

“marginally greater” than those of defendants who were 
8

convicted—which, as we held in our prior decision, are nearly 

de minimis. Appellants’ Br. 20. Each party overstates its case.

It is true, as the Department observes, that we have 

regularly concluded that individuals have a “strong interest” 

in avoiding disclosure of their involvement in “alleged 

criminal activity.” Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. 

Cir. 1990) (internal quotation marks omitted); accord, e.g.,

People for the Ethical Treatment of Animals v. National 

Institute of Health, No. 12-5183, slip op. at 9 (D.C. Cir. Mar.

14, 2014); Fund for Constitutional Government v. National 

Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 

1981). Those decisions, however, dealt with individuals who 

were either the subject of or involved in government 

investigations of criminal activity but never charged with a 

crime. See ACLU I, 655 F.3d at 7 n.8. Such individuals’ 

privacy interests are strong in part because disclosure would 

“reveal[] to the public that the individual had been the subject 

of an . . . investigation.” Baez v. U.S. Department of Justice, 

647 F.2d 1328, 1338 (D.C. Cir. 1980) (emphasis added); 

accord, e.g., Branch v. FBI, 658 F. Supp. 204, 209 (D.D.C. 

1987). The privacy interest in preventing disclosure is

diminished, however, if the fact of someone’s involvement in 

alleged criminal activity is already a matter of public record—

as will be the case when a defendant was indicted. See

Reporters Committee, 489 U.S. at 763; ACLU I, 655 F.3d at 7 

& n.8. Thus, we disagree with the Department that those who 

have been acquitted or had their cases dismissed and whose 

involvement in alleged criminal activity has already been

publicly revealed are in the same situation as those who were 

never charged in the first place.

We likewise disagree with the ACLU that the privacy 

interests of defendants who were indicted but not convicted 

are essentially indistinguishable from those of defendants who 
9

were convicted. To be sure, many of the factors we 

considered important in concluding that convicted defendants 

have a relatively weak privacy interest are equally applicable 

to those individuals whose interests we now consider here. In 

particular, just as was true with respect to convicted

defendants, the requested docket information regarding 

defendants who were charged but not convicted would 

“disclose only information that has already been the subject of 

a public proceeding,” is “available in public records,” ACLU

I, 655 F.3d at 8, and is likely readily accessible by the public 

through “computerized government services like PACER” or 

even a simple “Google search for that person’s name,” id. at 

10. Indeed, as we have observed, this prior public exposure is

precisely what distinguishes the individuals whose interests 

we consider in this case from those who have been 

investigated but not charged. But the fact that information 

about these individuals’ cases is a matter of public record

simply makes their privacy interests “fade,” not disappear 

altogether. ACLU I, 655 F.3d at 9 (internal quotation marks 

omitted); see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 

494–95 (1975) (“[T]he interests in privacy fade when the 

information involved already appears on the public record.”); 

see Reporters Committee, 489 U.S. at 767 (“[O]ur cases have 

. . . recognized the privacy interest inherent in the 

nondisclosure of certain information even where the 

information may have been at one time public.”). Consistent 

with our decision in ACLU I, we reject the dissent’s surrender 

of any reasonable expectation of privacy to the Internet—a 

surrender that would appear to result from a failure to 

distinguish between the mere ability to access information and 

the likelihood of actual public focus on that information. See 

Dissenting Op. at 4–6; cf. United States v. Jones, 132 S. Ct. 

945, 964 (2012) (Alito, J., concurring) (concluding that 

individuals generally have a reasonable expectation in being 

free of long-term GPS surveillance notwithstanding the ready 
10

availability of this technology); id. at 957 (Sotomayor, J., 

concurring) (suggesting that “it may be necessary to 

reconsider the premise that an individual has no reasonable 

expectation of privacy in information voluntarily disclosed to 

third parties,” as that “approach is ill suited to the digital 

age”). And if individuals not convicted have a substantially 

greater privacy interest than convicted individuals to start 

with, then even after both interests are discounted due to prior 

public revelation, the former interest will remain substantially 

greater than the latter. 

In our view, defendants whose prosecutions ended in 

acquittal or dismissal have a much stronger privacy interest in 

controlling information concerning those prosecutions than 

defendants who were ultimately convicted. The presumption 

of innocence stands as one of the most fundamental principles 

of our system of criminal justice: defendants are considered 

innocent unless and until the prosecution proves their guilt 

beyond a reasonable doubt. See Coffin v. United States, 156 

U.S. 432, 453 (1895) (“The principle that there is a 

presumption of innocence in favor of the accused is the 

undoubted law, axiomatic and elementary, and its 

enforcement lies at the foundation of the administration of our 

criminal law.”). Individuals who are charged with a crime and 

ultimately prevail of course remain entitled to a version of this

presumption. In the eyes of the law, they are not guilty. Cf.

Herrera v. Collins, 506 U.S. 390, 399–400 (1993) (following 

conviction, “the presumption of innocence disappears,” and 

“[t]hus, in the eyes of the law, petitioner does not come before 

the Court as one who is ‘innocent’”). Unfortunately, public 

perceptions can be quite different. Aware of the heavy burden 

of proof that the government must satisfy in a criminal 

prosecution, many may well assume that individuals charged 

with a crime likely committed that crime regardless of how 

the case was ultimately resolved. “We all know,” ACLU 
11

counsel candidly observed at oral argument, “there are some 

guilty people who are not convicted.” Oral Arg. Rec. 27:03–

:08. Or as former Secretary of Labor Raymond Donovan 

wondered after being acquitted of larceny and fraud, “Which 

office do I go to to get my reputation back?” Selwyn Raab, 

Donovan Cleared of Fraud Charges by Jury in Bronx, N.Y. 

Times, May 26, 1987, at A1. Thus, if the right to privacy is, at 

its essence, “the right to be let alone,” Olmstead v. United 

States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), 

those who are acquitted or whose charges are dismissed have

an especially strong interest in being let alone. Although the 

fact that such defendants were accused of criminal conduct

may remain a matter of public record, they are entitled to 

move on with their lives without having the public reminded 

of their alleged but never proven transgressions.

This special interest in shielding those charged with but 

not convicted of a crime is reflected in state laws that limit the 

disclosure of criminal history summaries involving data other 

than convictions. See, e.g., Conn. Gen. Stat. § 54-142n 

(“Nonconviction information other than erased information 

may be disclosed only to: (1) Criminal justice agencies . . . ; 

(2) agencies and persons which require such information to 

implement a statute or executive order that expressly refers to 

criminal conduct; (3) agencies or persons authorized by a 

court order, statute or decisional law to receive criminal 

history record information.”); Haw. Rev. Stat. § 846-9 

(providing that “[d]issemination of nonconviction data shall 

be limited” to certain specified entities, but that “[t]hese 

dissemination limitations do not apply to conviction data”);

see also Reporters Committee, 489 U.S. at 754 n.2 (observing 

that “[i]n general, conviction data is far more available 

outside the criminal justice system than is nonconviction 

data,” and that in “47 states nonconviction data cannot be 

disclosed at all for non-criminal justice purposes, or may be 
12

disclosed only in narrowly defined circumstances” (internal 

quotation marks omitted)). It is also reflected in statutes and 

court decisions providing for the sealing of cases in which the 

defendant was never convicted. See, e.g., N.Y. Crim. Proc. 

Law § 160.50 (“Upon the termination of a criminal action or 

proceeding against a person in favor of such person . . . , 

unless . . . the court . . . determines that the interests of justice 

require otherwise . . . , the record of such action or proceeding 

shall be sealed . . . .”); Ohio Rev. Code § 2953.52 (“Any 

person, who is found not guilty of an offense by a jury or a 

court or who is the defendant named in a dismissed 

complaint, indictment, or information, may apply to the court 

for an order to seal the person’s official records in the case.”); 

see also John P. Sellers, III, Sealed with an Acquittal: When 

Not Guilty Means Never Having to Say You Were Tried, 32 

Cap. U. L. Rev. 1 (2003) (describing Ohio courts’ expansive 

use of this power). Perhaps most important for our purposes, 

it is an interest whose relative significance is reflected in our 

prior decision in this case, in which we observed that the

privacy interests of defendants who have been convicted “are 

weaker than for individuals who have been acquitted or 

whose cases have been dismissed.” ACLU I, 655 F.3d at 7; 

see also id. at 8 (emphasizing that, unlike in Reporters 

Committee, the requested disclosure would “disclose only 

information concerning a conviction or plea; it would not 

disclose mere charges or arrests”). Indeed, even our dissenting 

colleague appears to acknowledge the relative strength of this 

interest. See Dissenting Op. at 2 (stating that the privacy 

interests here are “marginally greater than they were in ACLU 

I”).

Release of the docket information the ACLU seeks would 

substantially infringe this privacy interest. It would create the

risk—perhaps small, see ACLU I, 655 F.3d at 10–11, but 

nonetheless real—that renewed attention would be paid to the 
13

individuals who were the subject of these prosecutions. While 

this attention would have been warranted at the time of 

indictment, now that these defendants have been acquitted or 

had the relevant charges dismissed they have a significant and 

justified interest in avoiding additional and unnecessary 

publicity. For example, someone who had been acquitted of 

accounting fraud after a full and fair trial, moved on with his 

life, and started a family might be especially dismayed were 

his neighbors, friends, and family to learn about his previous 

prosecution due to the publicity associated with the release of 

the requested information. Or what of a defendant charged

with producing child pornography whose case was dismissed 

after the government identified the real perpetrator, yet is 

nevertheless viewed with suspicion by those who learn of his 

mere involvement in such a case? If, as the Supreme Court 

put it in Reporters Committee, an “ordinary citizen” has a 

privacy interest “in the aspects of his or her criminal history 

that may have been wholly forgotten,” certainly that interest is 

particularly great when the ordinary citizen was never actually 

convicted but nonetheless might be presumed by the public to 

have been guilty. 489 U.S. at 769. Release of this information 

would also permit the ACLU or others to contact the 

defendants in question in order to learn more about their 

cases, something the ACLU has expressly told us it plans to 

do. Though “relatively minimal,” ACLU I, 655 F.3d at 11, 

such an intrusion may be especially undesirable for 

individuals who are understandably trying to put their past 

ensnarement in the criminal justice system behind them.

III.

Having concluded that defendants who were acquitted or 

had their cases dismissed have a substantial privacy interest at 

stake, we must now balance this interest against the public 

interest in disclosure. Such balancing decisions, generally 

speaking, are among the most challenging sorts of cases that 
14

judges face. Indeed, the task brings to mind the rhetorical 

question often attributed to Chief Justice Traynor of the 

California Supreme Court: “Can you weigh a bushel of 

horsefeathers against next Thursday?” Brainerd Currie, The 

Disinterested Third State, 28 Law & Contemp. Probs. 754, 

754 (1963); cf. also William Prosser, Res Ipsa Loquitur in 

California, 37 Cal. L. Rev. 183, 225 (1949) (“A presumption 

. . . can no more be balanced against evidence than ten pounds 

of sugar can be weighed against half-past two in the 

afternoon.”) (internal quotation marks omitted)). In this case, 

however, the comparison is not so amorphous and the 

balance, while close, is nonetheless clear. 

The ACLU argues that because warrantless cellphone 

tracking remains an issue of great public concern, the public 

interest in disclosure is the same as it was the last time this 

case was before us. According to the Department, however,

the public interest in the disclosure of these six prosecutions is 

reduced by the prior disclosure of the 214 prosecutions that 

resulted in convictions. In support, the Department relies on 

Schrecker v. U.S. Department of Justice, 349 F.3d 657 (D.C. 

Cir. 2003), in which we observed that a court’s “inquiry” into 

the interest in disclosure “should focus not on the general 

public interest in the subject matter of the FOIA request, but 

rather on the incremental value of the specific information 

being withheld.” Id. at 661 (emphasis added).

We have no need to wade into this debate. Even 

assuming, as the ACLU contends, that the public interest in 

the disclosure here equals that in ACLU I, that interest pales in 

comparison to the substantial interests in privacy that are now

at stake. The line drawn by Judge Robertson between 

prosecutions that result in convictions and those that result in 

dismissals or acquittals is not just one that “makes some 

intuitive sense,” as we put it in our prior opinion; it is, we 
15

now hold, a distinction that is fully consistent with FOIA.

Given the fundamental interest individuals who have been 

charged with but never convicted of a crime have in 

preventing the repeated disclosure of the fact of their

prosecution, we have little hesitation in concluding that

release of the remaining information the ACLU seeks “could 

reasonably be expected to constitute an unwarranted invasion 

of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Indeed, the 

government, having brought the full force of its prosecutorial 

power to bear against individuals it ultimately failed to prove 

actually committed crimes, has a special responsibility—a 

responsibility it is fulfilling here—to protect such individuals

from further public scrutiny.

IV.

One last issue demands our attention. The ACLU argues

that neither this court nor the district court could properly 

conclude that the Exemption 7(C) balance tilts in favor of 

withholding because the Department has failed to provide the 

information necessary to make that determination. The ACLU 

lists seventeen facts the Department has refused to provide—

facts relating to the specifics of the litigation in these six 

cases, the particular defendants charged, and the degree to 

which the cases received prior publicity. This information, it 

claims, might either increase the public benefit that would 

flow from disclosure of this particular docket information or 

decrease the privacy interest at stake. To the extent they are

relevant at all, however, sixteen of the seventeen specifics the 

ACLU contends the Department should have produced are 

facts for which the burden of production actually lies with the 

ACLU. See National Archives & Records Administration v. 

Favish, 541 U.S. 157, 172 (2004) (“Where the privacy 

concerns addressed by Exemption 7(C) are present, the 

exemption requires the person requesting the information to 

establish a sufficient reason for the disclosure.”); Afshar v. 
16

Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)

(“[A] plaintiff asserting a claim of prior disclosure must bear 

the initial burden of pointing to specific information in the 

public domain that appears to duplicate that being withheld.”).

The one piece of information requested by the ACLU that 

the government would have to produce is whether any of the

defendants have died. As we have held, not only is an 

individual’s death “a relevant factor” in assessing the privacy 

interests implicated by a disclosure involving that individual, 

but in some circumstances the government must take “certain 

basic steps to ascertain whether an individual [is] dead or 

alive.” Schrecker v. U.S. Department of Justice, 254 F.3d 162, 

166–67 (D.C. Cir. 2001). But although death may “diminish” 

the relevant privacy interests, it “by no means extinguishes” 

them because “one’s own and one’s relations’ interests in 

privacy ordinarily extend beyond one’s death.” Id. at 166; see 

also Swidler & Berlin v. United States, 524 U.S. 399, 407 

(1998) (holding that the attorney-client privilege survives the 

client’s death because “[c]lients may be concerned about 

reputation, civil liability, or possible harm to friends or 

family” and “[p]osthumous disclosure . . . may be as feared as 

disclosure during the client’s lifetime”). Here, even assuming 

any of the six individuals who were the subject of the 

prosecutions at issue have died, the relevant privacy interests 

remain substantial. Deceased defendants never convicted of a 

crime retain a reputational interest in keeping information 

concerning their prosecutions out of the public eye. They may 

also have family members who themselves have a legitimate 

interest in avoiding the increased scrutiny that could follow 

from the release of the requested docket information. Cf. 

Favish, 541 U.S. at 170 (“FOIA recognizes surviving family 

members’ right to personal privacy with respect to their close 

relative’s death-scene images.”). Given the substantial nature

of these interests, we conclude that withholding the requested 
17

docket information would be justified under Exemption 7(C) 

even if some or all of the underlying defendants were dead. 

Accordingly, the district court properly granted the 

Department’s motion for summary judgment notwithstanding 

the Department’s apparent failure to investigate this issue.

V.

For the forgoing reasons, we affirm the district court’s 

grant of summary judgment to the Department. 

So ordered.
TATEL, Circuit Judge, concurring: The court’s opinion 

assumes without deciding that the public interest in disclosure 

of the docket information for these six prosecutions is just as 

great as was the interest in disclosing the information for the 

214 prosecutions the Justice Department was previously 

ordered to release. See Majority Op. at 14. I write separately 

to explain why I believe this prior disclosure has substantially 

reduced the value of the remaining information the ACLU 

continues to seek, thus further tilting the balance in favor of 

withholding. 

In evaluating the public benefit of disclosure under FOIA 

Exemption 7(C), D.C. Circuit precedent requires that we

focus on the “incremental value” of the “specific information” 

sought. Schrecker v. U.S. Department of Justice, 349 F.3d 

657, 661 (D.C. Cir. 2003); accord, e.g., Bast v. U.S. 

Department of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981); 

King v. U.S. Department of Justice, 830 F.2d 210, 234–35

(D.C. Cir. 1987). That is, instead of simply asking whether 

there might be some general public interest in the subject 

matter of the FOIA request, we ask whether and how the 

information sought in a particular FOIA request will actually 

cast light on the government’s activities. See, e.g., ACLU v. 

U.S. Department of Justice, 655 F.3d 1, 12–16 (D.C. Cir. 

2011) (ACLU I). Examining the incremental value of a given 

disclosure follows from the basic purpose of the Exemption 

7(C) balancing test: determining whether a particular record 

or piece of information is worth the privacy costs of release

requires an assessment of the potential benefits that would

actually flow from release. 

When assessing the “incremental value” of the 

information sought, we of course apply the common sense 

notion that the value of information depends on the mix of 

data already publicly available—including that previously 

released by the agency subject to the FOIA request. In U.S. 

Department of State v. Ray, 502 U.S. 164 (1991), the 
2

Supreme Court illustrated this approach in the process of 

analyzing the benefit of disclosing information retained

pursuant to FOIA Exemption 6, a parallel exemption that 

authorizes withholding records if disclosure would “constitute 

a clearly unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6). In Ray, the State Department had released 

documents relating to its efforts to monitor Haiti’s compliance 

with its promise not to persecute certain refugees. In doing so, 

however, the State Department redacted information 

regarding the identity of the refugees—information that, as 

the Court recognized, would, in a vacuum, have been helpful 

to the FOIA requesters because it would have enabled them to 

track down the refugees and ask them about any persecution. 

See Ray, 502 U.S. at 171, 177; cf. id. at 179 (observing that 

the Court’s resolution of the case allowed it to avoid deciding 

whether derivative uses of disclosed information could 

qualify as a public interest in disclosure); ACLU I, 655 F.3d at 

15 (“this court takes derivative uses into account in evaluating 

the impact of disclosure on the public interest”). The dissent 

cannot simply misquote away the value of this information. 

See Dissenting Op. at 9 (quoting from section of the Court’s 

opinion describing the Eleventh Circuit’s conclusion “that the 

redacted information would not, in and of itself, tell 

respondents anything about Haiti’s treatment of the returnees 

or this Government’s honesty, but . . . the indirect benefit of 

giving respondents the means to locate the Haitian returnees 

and to cross-examine them provided a public value that 

required disclosure,” Ray, 502 U.S. at 170–71.) Nevertheless,

the Court rejected an effort to ascertain the refugees’ 

identities because the “public interest” had already been 

“adequately served by disclosure of the redacted interview 

summaries.” Ray, 502 U.S. at 178. It explained that the 

released “documents reveal how many returnees were 

interviewed, when the interviews took place, the contents of 

individual interviews, and details about the status of the 
3

interviewees.” Id. Thus, it concluded, “[t]he addition of the 

redacted identifying information would not shed any 

additional light on the Government’s conduct of its 

obligation.” Id. (emphasis added). As the Court reiterated in 

even clearer language: “[T]here is nothing in the record to 

suggest that a second series of interviews with the alreadyinterviewed returnees would produce any relevant information 

that is not set forth in the documents that have already been 

produced.” Id. at 179; accord, e.g., Painting & Drywall Work 

Preservation Fund v. Department of Housing & Urban 

Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) 

(concluding that the public interest in the disclosure of worker 

records that would provide information on agency 

enforcement efforts was minimal because interested parties 

could obtain similar information through alternative means).

Perhaps, as the dissent suggests, the relevant privacy interest 

in Ray was more substantial than here. See Dissenting Op. at 

8. But FOIA requires us to balance privacy interests against 

the benefits of disclosure, and the critical point for our 

purposes is that in Ray the Court evaluated the latter by 

examining the incremental effect of the information sought in 

light of prior disclosures. 

Consistent with the forgoing principles, and given the 

unique way in which this case has evolved, I believe that the 

public interest at issue here is less than it was when the case 

was previously before us. Of course, there is little doubt that 

“[t]he use of and justification for warrantless cell phone 

tracking” continues to be a “topic of considerable public 

interest.” ACLU I, 655 F.3d at 12; see, e.g., Kate Zernike, 

Court Restricts Police Searches of Phone Data, N.Y. Times, 

July 19, 2013, at A1 (describing differing positions taken by 

courts on the legality and propriety of this investigatory 

technique); Joe Palazzolo, Montana Requires Warrants for 

Cell Phone Tracking, Wall St. J. L. Blog, June 21, 2013, 
4

http://blogs.wsj.com/law/2013/06/21/montana-requireswarrants-for-cell-phone-tracking (describing efforts by states 

to require police to obtain a warrant in order to access cell 

phone tracking information). The disclosure of these six cases 

could also “shed[]” at least some additional “light on the 

scope and effectiveness” of this practice. ACLU I, 655 F.3d 

at 13.

But most of the benefit we anticipated from the release of 

the requested docket information flowed from the fact that 

access to a large sample of prosecutions would provide a basis 

for the public to discern general trends regarding the 

government’s use of cellphone tracking data and the means by 

which the government obtains such data. For example, we 

observed that disclosure would “provide information about 

the kinds of crimes the government uses cell phone tracking 

data to investigate,” the “standards the government uses to 

justify warrantless tracking,” and “facts regarding the duration 

of tracking and the quality of tracking data.” Id. at 13–14. As 

a result of the district court’s and our own prior decisions, 

however, the Department has already released docket

information for 214 prosecutions in which the government 

obtained cell phone tracking data without a warrant, and those 

214 cases presumably provide much of the necessary basis for 

assessing when, how, and why the government utilizes this 

particular investigative tool. Compare with id. at 14–15 

(rejecting government’s argument that release of the 

information was unnecessary due to the “extensive public 

attention that this issue is already receiving,” because “much 

of the information the plaintiffs seek to develop from the 

FOIA disclosure . . . is not currently in the public domain” 

(internal quotation marks omitted)). True, the six remaining 

cases could contain some interesting anecdotal evidence: the 

ACLU speculates that it is “more likely that a failed 

prosecution involved” a “motion[] to suppress evidence 
5

derived from cell phone tracking,” and that suppression 

hearings are particularly likely to yield useful information. 

Appellants’ Br. 33–34; see also ACLU I, 655 F.3d at 14 

(describing information that could be derived from 

suppression hearings). Even so, if the Department’s disclosure 

of 214 prosecutions has failed to reveal the nature and extent 

of the government’s practice of obtaining cell phone tracking 

data without a warrant, the probability that disclosure of these 

six remaining cases would yield significant benefits is 

relatively low. To paraphrase the Supreme Court in Ray, there 

is little to suggest that these six cases “would produce any 

relevant information that is not set forth in the [214 

prosecutions] that have already been produced.” 502 U.S. 

at 179.

The ACLU argues that applying the “incremental value” 

test in this fashion would give federal agencies license to 

arbitrarily withhold portions of requested records—

presumably “the more important or embarrassing responsive 

records”—on the ground that the public interest in disclosure 

will be satiated by the records they choose to actually release. 

Appellants’ Br. 35. Although I have no doubt that this court

would look with great suspicion on any attempt to manipulate 

FOIA in this fashion, this case involves no such mischief. It is 

well-established that federal agencies may disclose particular 

records or portions of records responsive to a request without 

disclosing all responsive records so long as they have some

legitimate FOIA-based reason for doing so. See 5 U.S.C. 

§ 552(b) (“Any reasonably segregable portion of a record 

shall be provided to any person requesting such record after 

deletion of the portions which are exempt . . . .”); 

Assassination Archives & Research Center v. CIA, 334 F.3d 

55, 58 (D.C. Cir. 2003); see also, e.g., Ray, 502 U.S. at 178–

79; King, 830 F.2d at 234–35 (D.C. Cir. 1987) (permitting 

government to release investigative report with portions 
6

redacted in order to protect privacy interest of individuals 

named). When, for example, an agency withholds certain 

records that implicate greater privacy interests than those it 

releases, and then evaluates the public benefit of releasing 

these remaining records in light of the information already 

released, it acts just as FOIA requires—efficiently trading off 

privacy costs and disclosure benefits. That is almost exactly 

what happened here. Having released all of the information 

our prior decision required, the Department now resists

disclosure of a particular type of information that implicates 

stronger privacy interests. That being so, I see no reason to 

now disregard this prior disclosure. Just as we would certainly 

take account of the existence of the docket information for 

these 214 cases had it been uncovered and published by the 

Washington Post, we may take account of it here even though 

its release resulted from this litigation.
 BROWN, Circuit Judge, dissenting: While I sympathize 

with the court’s protective instincts, I subscribe to Lady 

Macbeth’s drear insight: “What’s done cannot be undone.” 

Redemption is still possible, but in the modern world, the 

right to be left alone, once forfeited, is gone for good. An 

individual who is indicted and tried has no privacy interest 

that can protect the public record of prosecution from 

disclosure—even if the ultimate outcome was acquittal or 

dismissal. The residual privacy concerns we identified in 

ACLU I are insufficient to meet the Exemption 7(C) 

threshold. There we noted that the privacy right at common 

law rested in large part on the “degree of dissemination,” and 

that “interests in privacy fade” when the information is 

already part of the public record and is readily available. Am. 

Civil Liberties Union v. U.S. Dep’t of Justice (ACLU I), 655 

F.3d 1, 9 (D.C. Cir. 2011). Because the privacy interest here 

started small and the pace of technology continues to diminish 

it, I respectfully dissent. 

 

 At the outset, I should note the court does get one thing 

right. As a general matter, judges tasked with balancing 

equally metaphysical concepts, like privacy and the public 

interest, face what are among the most difficult and largely 

standardless endeavors. See Reporters Comm. for Freedom of 

Press v. U.S. Dep’t of Justice, 816 F.2d 730, 741 (D.C. Cir. 

1987) (expressing doubt that there is any principled basis for 

federal judges to make such ad hoc and idiosyncratic 

determinations). Even so, I agree the balancing in this case is 

relatively clear. The six disputed records already exist in the 

public domain. Indeed, the court acknowledges the records 

are accessible via a simple Google search or through PACER. 

Furthermore, the court correctly determines the public interest 

in disclosure is no more or less than it was in ACLU I. There, 

we characterized the public interest as “significant.” ACLU I, 

655 F.3d at 12. With one arm of the balance thus weighted, 

the only question is whether the privacy interests of 

unconvicted persons tip the scales against disclosure. The 
2 

court today holds that the contest, while close, is nevertheless 

convincingly won by a supposedly more substantial privacy 

interest. I am not persuaded. On balance, the permanence 

and accessibility of the records render any privacy interests 

only marginally greater than they were in ACLU I, thus 

tipping the balance in favor of disclosure. 

The majority’s privacy analysis rests on two pillars: the 

presumption of innocence and the common law of 

informational privacy. Both notions have shortcomings. 

First, the presumption of innocence is an artifact of the 

common law’s adversarial approach to the question of guilt. 

What authority exists for the proposition that the presumption 

of innocence affords indicted, but unconvicted, persons some 

measure of informational privacy? The Supreme Court has 

made it clear that the presumption of innocence applies only

to a criminal trial and, within the trial, only to the jury or other 

trier of fact. See Bell v. Wolfish, 441 U.S. 520, 533 (1979) 

(“The presumption of innocence is a doctrine that allocates 

the burden of proof in criminal trials; it also may serve as an 

admonishment to the jury to judge an accused’s guilt or 

innocence solely on the evidence adduced at trial . . . .” 

(emphasis added)). Any other, extra-trial reference to the 

doctrine is both imprecise and impotent. If, as the Supreme 

Court posits, the presumption of innocence is purely an 

instrument for allocating the burden of proof at trial and 

warning jurors against drawing untoward inferences, then 

there is no basis for supposing the presumption of innocence 

governs events beyond the trial itself. Contra Majority Op. at 

10 (“Individuals who are charged with a crime and ultimately 

prevail of course remain entitled to a version of this 

presumption [of innocence].”). And why would a common 

law presumption trump FOIA’s statutory mandate? 
3 

The court hypothesizes the plight of individuals who, 

though never convicted, are viewed with suspicion when 

others learn of their mere involvement in particularly ignoble 

cases. See Majority Op. at 13. But even if true, persons who 

are publicly indicted and tried can have no reasonable 

expectation that the occurrence of these events will not be 

publicly disclosed. Risk of disclosure inheres in the very 

nature of these public proceedings. See Craig v. Harney, 331 

U.S. 367, 374 (1947) (“A trial is a public event. What 

transpires in the court room is public property.”). To be sure, 

we previously discounted the small but nonetheless real risk 

of renewed attention, dismissing such concerns as sheer 

“speculation.” See ACLU I, 655 F.3d at 10–11 (“Such a list 

[of publicly indicted persons] is surely less likely to draw 

attention to a name than was the initial press coverage of an 

indictment . . . .”). 

Furthermore, what of the need for an informed citizenry 

to hold public officials accountable? One “purpose of FOIA 

is to permit the public to decide for itself whether government 

action is proper.” Wash. Post Co. v. U.S. Dep’t of Health & 

Human Servs., 690 F.2d 252, 264 (D.C. Cir. 1984) (emphasis 

added); see also Richard A. Epstein, Privacy, Publication, 

and the First Amendment: The Dangers of First Amendment 

Exceptionalism, 52 STAN. L. REV. 1003, 1004, 1047 (2000) 

(discussing as a counterweight to privacy goals, the social 

ideal of full disclosure of information about others to allow 

individuals to make “full and informed decisions on matters 

of great importance”); Sadiq Reza, Privacy and the Criminal 

Arrestee or Suspect: In Search of a Right, in Need of a Rule, 

64 MD. L. REV. 755, 807 (2005) (“The government should 

arguably inform the public about its suspicions regarding an 

arrestee or suspect so that people may practice ‘informed 

living,’ the right to exercise an informed choice about those 

with whom they live and associate. That is, X should have 
4 

access to information that Y has been arrested for or 

suspected of a crime so that X can decide intelligently 

whether to socialize with Y, let her children play with Y’s 

children, patronize Y’s business, or use Y’s professional 

services, and so forth.”). From the point of view of the 

wrongfully accused, this will be a continuing injustice, but a 

person can be found not guilty and still not be innocent of the 

crime charged. See Rigsbee v. United States, 204 F.2d 70, 

72–73 (D.C. Cir. 1953) (holding that an acquittal differs from 

innocence and that the former would be insufficient by itself 

to obtain a certificate signifying the latter). The rough 

balance courts must strike can never resolve such anomalies. 

The Court’s reliance on common law informational 

privacy doctrine is similarly unavailing. “[B]oth the common 

law and the literal understandings of privacy encompass the 

individual’s control of [personal] information.” Reporters 

Comm., 489 U.S. at 763. The touchstone of informational 

privacy—the right to be let alone—has long rested on the 

degree to which an allegedly private fact has been 

disseminated, and the extent to which the passage of time has 

rendered it private. Id. Nevertheless, technological advances 

seem to presage the death knell for this previously workable 

standard. In today’s echo chamber of big data, metadata, and 

the Internet, the once wholly forgotten memory of some 

unsavory, minimally broadcast misdeed is resurrected for 

global consumption. Against this backdrop, it seems fanciful 

to believe that individuals who were publicly indicted but 

never convicted (though in some cases publicly tried), retain 

an objective, substantial privacy interest in controlling 

information about these public facts. 

The court says unconvicted persons are “entitled to move 

on with their lives without having the public reminded of their 

alleged but never proven transgressions.” Majority Op. at 11. 
5 

Alas, Google, unlike God, neither forgets nor forgives.1

 

Indeed, Google is not alone in its uncanny ability to keep the 

proverbial score. It is true that most jurisdictions treat 

aggregations of data confidentially, but they also insist on 

transparency for records of individual cases. Courts, too, 

have a penchant for reminding acquitted individuals of their 

“alleged but never proven transgressions.” See, e.g., Dowling 

v. United States, 493 U.S. 342, 354 (1990) (holding that 

admission of evidence relating to a crime the defendant had 

previously been acquitted of committing did not violate 

double jeopardy or due process); United States v. One 

Assortment of 89 Firearms, 465 U.S. 354, 356–66 (1984) 

(holding that a gun owner’s acquittal on criminal charges 

involving firearms did not preclude a subsequent in rem

forfeiture proceeding against those firearms under 18 U.S.C § 

924(d)); United States v. Foster, 19 F.3d 1452, 1455 (D.C. 

Cir. 1994) (noting that virtually every circuit permits 

enhancement of sentence based on acquitted conduct). 

The proposition that “an ‘ordinary citizen’ has a privacy 

interest ‘in the aspects of his or her criminal history that may 

have been wholly forgotten,’” Majority Op. at 13 (citing 

Reporters Committee, 489 U.S. at 769), is thus inapt. Thanks 

to the Internet (for better or worse), information that was once 

scattered, localized, and forgotten with the passage of time is 

now effectively permanent and searchable. And though one 

might wish quietly to melt into the shadow of obscurity, the 

inexorable march of time is simply no match for the 

unflagging, unforgiving memory that is the World Wide Web. 

 

1

 There are exceptions, of course, but records 

memorializing a public indictment and trial do not appear to 

be one of them. See Removal Policies, GOOGLE, 

https://support.google.com/websearch/answer/2744324#offen

siveimages (last visited Apr. 23, 2014). 
6 

Once a secret is disclosed online, neither the courts nor 

society may unring the lingering echo of the bell. In this 

respect, Reporters Committee is an anachronism. The aspects 

of an “ordinary citizen[’s]” criminal history the Court thought 

would be wholly forgotten were the data contained in rap 

sheets, which were maintained in a localized computer 

database. See Reporters Comm., 489 U.S. at 752, 771; see 

also ACLU I, 655 F.3d at 8. Nowadays, bits and pieces of 

data are aggregated and immortalized on public and private 

systems, and the private systems have no purge schedules. 

This is not to say the modern man has abdicated any 

expectation of privacy in facts partially disclosed. As the 

Supreme Court observed, “the fact that an event is not wholly 

private does not mean that an individual has no interest in 

limiting disclosure or dissemination of the information.” 

Reporters Comm., 489 U.S. at 770. But there is a vast chasm 

between facts disclosed to a discrete group that otherwise 

treats the information as private and facts that are 

unqualifiedly revealed and accessible to virtually everyone. 

In my view, the case before us falls into the latter camp. Cf.

id. at 752 (“As a matter of executive policy, [DOJ] has 

generally treated rap sheets as confidential and, with certain 

exceptions, has restricted their use to governmental 

purposes.”); Dep’t of Air Force v. Rose, 425 U.S. 352, 359–60 

(noting that the Academy treated “all matters discussed” at 

hearings for honor code violations as “confidential,” marked 

case summaries “for official use only,” and instructed cadets 

“not to read the case summary unless they have a need, 

beyond mere curiosity, to know their contents”). 

 Considering the fissures in the two pillars supporting the 

court’s privacy analysis, one would expect the privacy 

interests to become less significant. At the very least, these 

serious deficits ought give way to the court’s obligation to 
7 

“make a reasonable effort to account for the death of a person 

on whose behalf the [agency] invokes Exemption 7(C). 

Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C. 

Cir. 2003). This would include the deaths of family members. 

After all, “death clearly matters, as the deceased by definition 

cannot personally suffer the privacy-related injuries that may 

plague the living.” Campbell v. U.S. Dep’t of Justice, 164 

F.3d 20, 33 (D.C. Cir. 1998). I am not swayed by the 

majority’s contention that reputational interests are enough to 

carry the day. The posthumous reputational interest the 

Supreme Court recognized in Swidler & Berlin v. United 

States, 524 U.S. 399 (1998), is the one rooted in the venerable 

attorney-client privilege, not informational privacy. See id.

(holding that the attorney-client privilege survives a client’s 

death). 

 One last point warrants discussion. Judge Tatel’s 

concurrence seeks to lend credence to DOJ’s invocation of the 

incremental value test—a test allegedly of precedential value. 

I am not so certain. First, the test is of dubious provenance. 

In King v. U.S. Dep’t of Justice, 830 F.2d 210, 234 (D.C. Cir. 

1987), the case cited by Schrecker as authority for its 

statement about the incremental value test, the court never 

actually used the words “incremental value.” Instead, the 

court merely held that, because the appellant failed to 

demonstrate how disclosing the redacted names was relevant 

to the public interest, the privacy interests “outweighed any 

public interest attending disclosure.” See id. at 234–35. That 

is all. King did not hold that the incremental value of 

information depends on the mix of data already publicly 

available. 

In the 200-plus FOIA cases since the Schrecker decision, 

we have referenced the incremental value test only three 

times. In each instance, we have understood it to mean 
8 

exactly the opposite of what the concurrence posits: “even if 

the ‘absolute value’ of the requested information is small, it 

must nevertheless be released if it adds any incremental value 

of public interest.” Appellants’ Reply Br. at 15; see ACLU I, 

655 F.3d at 15 (rejecting DOJ’s “incremental contribution” 

argument because “[t]he fact that the public already has some

information does not mean that more will not advance the 

public interest” (emphasis added)); Lardner v. U.S. Dep’t of 

Justice, 398 F. App’x 609, 611 (D.C. Cir. 2010) (affirming 

the district court’s decision to disclose the identities of denied 

pardon and commutation applicants despite the previous 

disclosure and existence of approved applicants’ identities on 

the public record. Significantly, the court noted: “The 

incremental value of the withheld information is not 

speculative . . . .”); Consumers’ Checkbook Ctr. for the Study 

of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 

1046, 1060 (D.C. Cir. 2009) (Rogers, J., concurring in part 

and dissenting in part) (“[E]ven though the requested data will 

only partially reveal physicians’ experience levels, the data 

has ‘incremental value’ for ascertaining the quality of services 

performed.”). 

 

In any event, even assuming the court is bound by the 

version of the incremental value test Judge Tatel espouses, the 

cases cited in support of this test are all distinguishable for 

one reason or another. In Ray, for example, the privacy 

interests were more significant than those implicated here. 

The information redacted from the disputed records was 

obtained via interviews with requested Haitians who were 

promised confidentiality. U.S. Dep’t of State v. Ray, 502 U.S. 

164, 172 (1991). In other words, the parties agreed to treat 

the information obtained as private. Furthermore, the Court’s 

conclusion that “[t]he addition of the redacted identifying 

information would not shed any additional light on the 

Government’s conduct of its obligation,” id. at 178 (emphasis 
9 

added), is in accord with this court’s prior application of the 

test. The redacted information was withheld precisely 

because the Court recognized that, “in and of itself” it would 

not “tell respondents anything about Haiti’s treatment of the 

returnees or this Government’s honesty.” Id. at 170–71 

(emphasis added). 

Perhaps most importantly, however, Ray involved 

redacted information, not wholly undisclosed records. The 

difference is not merely academic. Judge Tatel’s version of 

the incremental value test would make little sense where, as 

here, a court is dealing with undisclosed records that are 

substantively dissimilar to records previously disclosed. 

Unlike Ray, where the redacted information was sought so 

that interviews with Haitians could be conducted anew, 502 

U.S. at 178–79, disclosing the records of unconvicted persons 

would be neither duplicative nor speculative. It is reasonable 

to believe the six files could contain new information 

precisely because the records sought—unlike the Haitian 

interviewees—are qualitatively different. In fact, Judge Tatel 

agrees. Concurring Op. at 4 (“The disclosure of these six 

cases could also shed at least some additional light on the 

scope and effectiveness of [warrantless cell phone 

tracking].”). Nothing more is required. 

At bottom, the public interest in disclosure remains as 

robust as it was in ACLU I. Conversely, in the Internet age, 

privacy is no longer what it once was. Times have changed, 

and so, too, must our expectations. I respectfully dissent.