*2 оrally occupier vise the homeowner or Washington, Kramer, C.D. H. Victor survey that the results of the would not Washington, C., (Richard Wolf, D. B. any released be other than the one Zeldin, appellants. brief) for and on Joel occupier owner or and federal officials Atty. Graham, Andrew U. S. J. Asst. working problem. on the the sur- When (George Beall, Atty., brief), for U. S. veys completed, were the results were appellee. made available the EPA to the Colo- CRAVEN, and Before RUSSELL WI- Department Health, conjunc- rado Judges. DENER, Circuit survey tion with which the was made. Through arrangement with the Colo- Judge: RUSSELL, Circuit DONALD Department Health, Develop- rado community ment Director of the can se- case, This is a bizarre illustrative of any “proper cure and make available ignorance by the dangerous even scientists of the party” the results tests made on properties radioactive any specific addition, structure. In each waste materials and the hazards surveyed owner given structure ignoranсe. been result from such It survey the results of the practice by his arose out of the a uranium building. making processing plant of available charge tailings free of for its uranium plaintiffs The at first made formal re use as clean fill dirt connection with quest upon the defendant for the results private public construction of and struc- applied public as it to all community tures in the of Grand Junc- private structures in the communi tion, Colorado, proc- where the uranium ty. request It later modified this to cov essing plant practice, The located. er those structures which the ra begun continued until Surgeon diation levels exceeded the Gen when the hazards incident use of “safety guidelines”. eral’s responded tailings belatedly recognized. were request by offering meantime, tailings In the provide had been the results but with the names extensively used. Because the ob- and addresses of homeowners or occu dangers vious use, piers connected with such deleted. It based its refusal Agenсy the Environmental supply any Protection upon this information (hereinafter EPA), exemptions referred to as with set forth in subdivisions Depart- assistance of the Colorado 552(b), of Section 5 U.S.C. Health, ment of undertook in unacceptable 1970 to This was plaintiffs, monitor the radiation levels the who then filed this action under the homes аnd structures where Freedom of compel Information Act2 to tailings of these had been In used. ad- disclosure. The defendant entered a mo dition, the homes and dismiss, and, business or tion to alternative, structures were tested summary for radioactive motion judgment. for plaintiffs emissions. the course of this moni- then submitted their cross-mo toring, 15,000 some summary homes were judgment. sur- When the tailings 1. These U.S.C., are described as a 2. 5 sand-like Section 552. suvra by-product processing uranium plant’s mining operations. ac- for a claim of hearing, sis cordingly the Dis- on for came
motions phrase, “simi- found plaintiffs’ cross-mo- denied trict Court of which would lar files motion granted defendant’s tion and inva- constitute dis- judgment, summary for closure, sion of exempt though under subdi- seems, used, to indicate “similar” was exempted subdivi- (4), was vision *3 that, exemption not limit- ap- was while plaintiffs (6) Act. of the sion files, personnel strictly medical or ed to peal. category in third the files covered this agency appeal, defendant this On of have thе same characteristics must confidentiality obligated it that is apparently concedes ordinarily to that attach plaintiffs, without to disclose personnel in medical or information inter- of gard or want their interest they files; extent is, that to such as requested unless est, “ ‘highly ‘intimate details’ of a contain “specifically” un- excused is disclosure nature”, personal’ are within the express exemptions the nine of der one exemption. is the of the This umbrella Information Freedom of set forth it real thrust of the as was asserting Act, that, for an excuse in and L. in Getman v. N. R. B. construed exemption, any express under disclosure (1971), U.S.App.D.C. 209, 450 F.2d 146 “to its ac- on” it sustain “the burden 670, See, Note, Invasion Priva- not, or this is conceded tion.” Whether cy Act: the Freedom of Information and Ep- purport of the Act itself. clear N.L.R.B., 40 Getman v. 527, Geo.Wash.L.Rev. v. Resor stein 930, (1972). It seem to.fol- 532 965, 933, 90 denied U.S. exemption applies only that low it 549. While 26 L.Ed.2d S.Ct. specific information which relates a sought in this excuse nondisclosure person individual, de- or to “intimate (6) exemptions (4) and case under both “highly personal in of a nature” tails” (4) Act, dis- claim under was its employment that individual’s record or and, in the District Court allowed history like, health and has no right Court, agency rests this relevancy to information that deals with According- wholly upon exemption (6). physical things, in structurеs as as ly, the sole issue here is whether agency contends, this case.3 The how- in was correct District Court ever, simplistic ap- that this is too agency had sustained that proach unique to the situation establishing right a to ex- its burden of agency true, argues, that, case. It requested emption from sought by the information while exemption (6) of under plaintiffs strictly condi- relates to the Act. buildings, structures, tion of and real estate, Exemption gathered, analyzed, it is as follows: was and is possi- of interest as it relates to the “(6) personnel medical files and effect on the health of that condition ble and similar files the disclosure of well-being occupants and оf those which would constitute a un- i.e., structures, specific and personal priva- warranted invasion of viewed, in individuals. this broad So cy information, agency context, the con- tends, Obviously, in- comes within the definition of the information re “highly personal nature”, quested any “person formation of was not included in contemplatеd exemption (6). nel” or “medical” files as such. ba- Of., always language ‘personal privacy’ “I relates of Professor Davis think Law, Supp., Administrative to individuals.” Section 164, where, exemp- discussing 3A.22 at particularly qualifying and “personal privacy”, says he : While, there perhaps, It must be conceded that is a promise confidentiаl. argument. persuasiveness confidentiality to this certain is a factor to be con- sidered, enough the homes in the commu- to defeat the engaged nity of concern because was disclosure that the “re- safety; personal pledge for and ceived health the file of confi- engineering survey dentiality to detеrmine not an supplied the one who it. Undertakings adequacy or nature of the cannot, the structural of that nature themselves, structures. And reason override the Act.” possibility Ley Ackerly health concern (1969), v. U.S.App.D.C. building occupancy 3; 1339-1340, continued Le- n. might gal expose occupants Society and even County Aid of Alameda progeny hazards of health (D.C.Cal.1972) their Shultz F.Supp. 771, sug- biological 776; impairments. It is supra, Particularly at 164. gested potential health im- alleged promise this case is the *4 adversely employ- pairments confidentiality unavailing could affect as an excuse. might opportunities given ment In the place, promise first the was mаrriage possibilities by the duce of occu- surveyors only the door-to-door where pants. confidentiality specifically inquired was by about agency a householder. The has however, Assuming, proof many offered no of how house- possible analogize to these records to community in holders the had received records, health it does auto not follow promise. important Even more matically exempt that such records are the fact the information has not statutory exemp from disclosure. The been held in confidence. results of simply any does cover files that survey the are available to- Colo- the regarded to as “similar” health Department rado of This De- Health. files”, quali in files. “Similar order partment, seemingly approval with fy exemption, must fit the ad EPA, readily of on re- makes available qualifications in ditional set forth quest survey any the results of the toas exemption, i.e., must contain infor specific through City structure mation “the disclosure of which would Development.5 practice Director of This clearly constitute a unwarranted inva EPA, well known which offers 4 sion of The use of proof practice support in of of its “clearly” qualification, this exemption by claim to of reason its purpose which was not inadvertent but promise confidentiality. And it is of Congress, was, itself, ful on the significance that, some so far as the that, “clear” instruction the Courts indicates, record has householder ob- determining the issue whether dis jected by City to this disclosure closure would un constitute “a Finally, Development. Director of personal privacy”, warranted invasion pointed claim, should bе out that they should “tilt the balance in favor of promise confidentiality sup- that a supra, disclosure”. v. Getman N.L.R.B. ports exemption, the award of an is en- at 674 of 450 F.2d. tirely buildings. inapplicable resolving against disclo urged by Another reason sure, strongly the District Court relied agency denial disclosure is agency the fact that the had some public, that the need of the as well promised instances the householder that securing plaintiffs, interest of kept results of the would be completely satisfactory 40 of a test.” language 4. One commentator has found this (1972). p. 527, at 540 Geo.Wash.L.Rev. unsatisfactory, adding that: Cf., ambiguous wording “The 6 (D.C.Md.1970) 315 5. v. Hardin Wellford problems securing 175, 178, (4th Cir.) and the F.Supp. traditional 444 F.2d aff’d privacy may preclude creation
847
N.L.R.B.,
1077;
1067,
v.
negligible.”
F.2d
Getman
This
“is
F.2d;
supra,
and Banner
at
of 450
plain intent
argument
misconceives
Clothing
Renegotiation
Co. v.
craft
so
has
Davis
As Professor
the Act.
cf.,
F.2d;
Board, supra, at 353 of 466
pro
emphasized,
convincingly
the earlier
however,
Administra
General Services
Administrativе Procedure
vision
(9th
1969)
F.2d
tion v. Benson
Cir.
‘to
“provided for disclosure
Act
880,
pp.
Davis,
3A.6,
878,
supra,
See.
That
directly concerned.’
properly and
Moreover,
claim of
”,
123-4.7
changed
person’
demon
‘any
ambiguous. The
is at best
argument
harm
strating beyond
that disclo
by
suggested
agency involves
harm
upon
“depend
in
never to
sure
sur
homes wеre
party
individuals whose
or lack
terest
veyed. Presumably,
individuals
supra,
seeking
Sec
disclosure.”
Develop
City
practice
;6
knew
Cloth
at 120 Bannercraft
tion 3A.4
making
ment Director
available
Renegotiation
Board
Company v.
question
any proper
U.S.App.D.C. 174,
person requesting
907,
concerned
granted
Yet no
6,
it.
352,
345,
410 U.S.
n.
shows,
Sterling
individual,
269;
so far as this record
967, 35 L.Ed.2d
93 S.Ct.
objected;
U.S.App.
nor
(1971),
has ever
Drug,
Inc. v. F.T.C.
705;
which an
instanced
one case
F.2d
Skolnick
D.C.
complained of
householder has
individual
Parsons
suffered
him
result of
harm
as a
*5
Nor,
matter,
disclosure.
for that
has
.unpersuasive
Equally
the ar
is
agency attempted
in this
gument
disclosure
refused
that
should be
govern
any “specific
case to show that
than
it “would do more harm
because
by
mental interests”
be harmed
the
will
argument
nothing
good”.
Such
has
requested by
plaintiffs.
disclosure
the
“personal privacy”
is
to do with
but
Bristol-Meyers Company v. F.T.C.
Cf.
argument
courts, in dis
rather an
that
U.S.App.D.C.
Act, may
posing
ex
of actions under the
935, 938,
824, 91
denied 400 U.S.
grant
deny equity
ercise discretion to
S.Ct.