October 17, 1977

Privacy—Persons Writing to the President— Freedom

of Information Act (5 U.S.C. § 552e (1976))

78-87 MEMORANDUM OPINION FOR THE COUNSEL

TO THE PRESIDENT

This responds to your request for our views as to the means available to 

protect the privacy of private persons who write to the President and whose 

letters are referred to the various Federal agencies for response.

It is our position that the President and his immediate staff are not agencies or 

part of agencies within the meaning of the Freedom of Information Act (the 

Act), 5 U.S.C. § 552(e) (1976) and thus private letters addressed to the 

President are not agency records subject to the Freedom of Information Act so 

long as they are maintained by the President or his staff. See Attorney General’s 

1974 Freedom of Information Amendments Memorandum at 25. However, 

when such letters are referred to other Federal agencies for reply they will, in 

the absence of some special arrangement, become agency records subject to the 

Act. As we understand it, your view is that persons who write to the President 

ought to be able to do so confidentially and that it would be an invasion of 

privacy to make their identity publicly available. There are several methods by 

which their privacy can be maintained.

1. Demonstrable Bailment. The ordinary presumption is that any record in 

the possession of an agency regardless of its origin is an agency record subject 

to the Act. However, the courts have recognized that the records originating in 

governmental units not covered by the Act may expressly be “ loaned” to an 

agency that is subject to the Act without becoming an agency record. Cook v. 

Willingham, 400 F. (2d) 885 (10th Cir. 1968) (judicial presentencing report in 

the hands of the Bureau of Prisons); Goland v. Central Intelligence Agency,

Civ. No. 76-166, D .D .C ., May 26, 1976 (Congressional Record lent to the 

Central Intelligence Agency).1 A somewhat similar bailment technique is also 

used by the Federal Bureau of Investigation and the Civil Service Commission to retain such control as they may have over the public release of 

certain investigatory records which they originate and subsequently disseminate

'Affirmed by the District of Columbia Court of Appeals, May 23, 1978.

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to other Federal agencies; the records bear a printed legend that they are the 

property of the originating and not of the holding agency.

In our opinion, the President could probably use an express bailment, 

evidenced perhaps by a stamped legend on each letter, to reserve ownership and 

thus control over its release under the Act. (The reservation of ownership would 

be particularly credible if all or some are recalled by and returned to the White 

House after the agencies have prepared responses.) Nevertheless, such an 

express bailment technique would not be adequate in itself to protect the 

identity or privacy of private correspondents, because the replies generated by 

the agencies will ordinarily reveal the name and address of the correspondent 

and the general thrust of his inquiry, problem, or comment, and these 

replies— or rather their file copies— will be agency records subject to the Act. 

While it might be possible for the President to assert ownership of these file 

copies also, such an assertion would be questionable, and a strong argument 

could be made that they are agency records subject to the Act because they are 

generated and maintained by the originating agency in the ordinary course of 

agency business. Were the President to arrange that all agency copies of replies 

be physically delivered to him, he could, of course, remove them from the 

coverage of the Act. This alternative, however, seems equally questionable and 

also administratively unsound in that it would deprive agencies of copies of 

their own correspondence and, depending upon the nature of the agency 

response, might violate the Federal Records Act in some circumstances. Pub. 

L. 90-620, 44 U.S.C. §§ 3101-3314 (1976).

2. Sanitizing Referrals to the Agencies. When a private letter is referred to 

an agency, the President could send the agency a copy of the letter from which 

the name and address of the correspondent have been deleted and in which a 

control number has been substituted. The agency would then draft a proposed 

reply, using the code number o f the incoming correspondence, and send the 

proposed reply to the White House where the identity of the correspondent 

would be decoded and the reply addressed, perhaps as reviewed and retyped on 

White House letterhead. In this manner, the identity of the correspondent 

would, in most cases, not be available in agency records and hence preserved 

from disclosure under the Freedom of Information Act.

We see at least two disadvantages with this method. First, the effort required 

to respond to private correspondence addressed to the President might be nearly 

doubled, in that each reply would have to be handled twice— once by the 

agency and then again in the White House. Second, in those cases where the 

letter contains personal identifying information about the writer which the 

agency will need in formulating a meaningful reply, such as a personal 

complaint about obtaining social security or other Federal benefits or permits, 

this proposed method simply would not work except at the price of precluding a 

meaningful reply. Yet such letters may well be the ones most deserving both of 

a responsive reply and of privacy protection because of the personal information they may contain. In any case, substituting a code number for the writer’s 

name and address offers no privacy protection where the correspondent is 

writing about the problems of a relative or friend identified in the body of the 

letter.

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• 3. Reliance on the Privacy Exemption in the Freedom o f Information Act. In 

our view, the names and addresses of private correspondents and other 

personally identifying data in letters to the President, after referral to agencies 

for reply, would usually be withholdable under the sixth exemption of the 

Freedom of Information Act because disclosure would constitute a “ clearly 

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b) (6) (1976): cf.,

Wine Hobby, U .S.A ., Inc. v. United States Bureau o f Alcohol, Tobacco, and

Firearms, 502 F.(2d) 133 (3d Cir. 1974). Almost all such letters either contain 

some personal information about the writer or a member of his family, if not 

information about personal opinions which the writer chooses to communicate 

to the President but presumably not the the entire public.2 In the ordinary case, 

a requester would have no justifiable interest in determining the identity of the 

correspondents; any legitimate interest, such as attempting to determine the mix 

of citizen correspondence addressed to the President, would be served by 

making available copies of the letters which have been sanitized by deleting 

names and other identifying information.3 While one can reasonably anticipate 

that a few requests will relate to matters which have a substantial public 

interest, and in which withholding of identifying information would be 

improper under the Act because the legitimate public interest in disclosure of 

identity outweighs the individual’s privacy, it seems to us that disclosure of 

identification in such rare cases would not be undesirable.

To help assure uniform agency implementation of a decision to use the sixth 

exemption to protect the privacy of correspondents, the President could proceed 

either (a) by instructing all agencies to preserve from clearly unwarranted 

invasions the privacy of individuals involved in correspondence referred from 

the White House, by withholding the name and other identifying data if such 

correspondence is to be made available in response to requests under the Act,4 

or (b) by requiring that such records be maintained in a “ system of records” as 

defined in the Privacy Act. 5 U.S.C. § 552a (1976). In the second way, the 

Privacy Act’s sanctions for improper disclosure would buttress the protection 

for the privacy of correspondents. However, such added protection, while 

stronger than that afforded by a Presidential directive or agency policy 

unsupported by sanctions, would be no greater in scope: The measure of the 

material that could be protected would still be the sixth exemption and in rare 

instances identities might have to be released in the public interest. Moreover, 

the use of the Privacy Act is unnecessarily cumbersome because it would

2ln many, and perhaps most, private letters to the President, there would seem to exist a public 

interest element which should reinforce, rather than counterbalance, the usually minor invasions of 

the w riters’ privacy. This is the public interest, which has First Amendment overtones, in 

protecting the right to petition the President without the chilling effect of fear of publicity. O f 

course, where the writer is communicating on behalf of an organization, privacy considerations 

would rarely be applicable, and the mix of public interest factors would be much more likely to call 

for disclosure.

3C/., Rose v. Air Force. 425 U.S. 352 (1976).

“This memorandum assumes that the Freedom of Information Act requests for private letters 

addressed to the President will typically come from requesters who do not know the identities of the 

writers of such letters. W here a request is for letters from named writers, privacy interests would 

have to be protected by deleting privacy information rather than identifying such information.

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require agencies which do not presently maintain their referred private 

correspondence in a Privacy Act system of records to establish a new system of 

records, thereby subjecting themselves to additional Privacy Act burdens. For 

example, use of the Privacy Act would often introduce complications >if the 

agency to which the letter is referred finds it must contact another agency to 

develop a meaningful reply. The use of a Presidential instruction with respect to 

invoking the sixth exemption should suffice.

Recommendation. We believe that, for the reasons discussed above, the 

privacy of those who write to the President can best be preserved through use of 

some form of guidance to the agencies to which the correspondence is referred. 

In effect, the agencies would be told or encouraged, when processing Freedom 

of Information Act requests for such material to delete personal identifying 

information from the letters and responses thereto as contemplated by the sixth 

exemption of the Act. This method should be effective and impose a minimal 

administrative burden on the agencies concerned. We would be glad to 

participate in the drafting of such guidance if it is determined to proceed along 

these lines.

RO B ER T L . SA LO SC H IN . Chairman

and

T h o m a s C. N e w k ir k . Member

Departm ent o f Justice

Freedom o f Information Committee

Office o f Legal Counsel

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