New York Times Company v. National Aeronautics and Space Administration

NEW YORK TIMES

COMPANY, Appellee, AND

NATIONAL AERONAUTICS ADMINISTRATION,

SPACE

Appellant.

No. 87-5244. Appeals,

United States Court of

District of Columbia Circuit.

Argued Dec. July

Decided Daniel, Jr., Justice, Atty., Dept,

Al J. Willard, Atty. with whom Richard K. Asst. Gen., diGenova, Joseph Atty., E. Schaitman, Justice, Atty., Dept, Leonard D.C., brief, Washington, were on the for appellant. Carome, Timothy

Patrick J. with whom Dyk George B. Freeman were on the brief, Kirchner, appellee. Kerry W. D.C., appear- Washington, also entered an appellee. ance for ROBINSON, EDWARDS, Before GINSBURG, H. DOUGLAS Circuit Judges.

Opinion for the Court filed Judge Circuit ROBINSON. Dissenting Opinion filed Circuit Judge DOUGLAS H. GINSBURG. ROBINSON, III, SPOTTSWOOD W. Judge: Circuit question confronting us is whether a tape of voice communications aboard Challenger shuttle during its final ill-fated flight subject mandatory public disclo- pursuant sure to the Freedom of Informa- 603 ones, (FOIA).1 replay re- The District Court voices their loved “an tion Act exemption statutory and jected grief certainly a claim of intrusion on their tape. We affirm. ordered release feelings would exacerbate of hurt and 6 appeal by An loss.” administrative denied, Times was again on the basis of I Exemption 6.7 28,1986, Challenger January self-des- On The Times then sued the District liftoff, after seventy-three tructed seconds for release of voice communica- astronauts aboard were and all seven tape.8 summary tions On cross-motions for Public interest in this lamentable killed. judgment, ordered disclosure.9 intense, coverage was and media event was per- recording Since voice contained no Eventually, York the New extensive. sonal information about the astronauts or FOIA, Times), (the invoking request- Times families, the court reasoned that it Space and Ad- ed the National Aeronautics was not a “similar” file within the (NASA) furnish “tran- ministration to Exemption 6.10 all and data communica- scripts of voice aboard the shuttle tions recorded and, day tragedy, Challenger” on the II well, copies of voice communications 6, By virtue of FOIA’s Times

tapes.2 provided with apply does not disclosure only voice record- transcript of written “personnel files similar and medical and made,3 but, ing relying exclusive- that was consti files disclosure which would 6,4 ly refused upon FOIA’s per unwarranted invasion of tute supply copy itself.5 analysis privacy.”11 The involves sonal that release of the asserted steps. question two The threshold upon personal privacy of encroach material issue by subjecting them to whether the at is contained families astronauts’ 552(b)(6) (1982), (1982). quoted in 4. 5 U.S.C. text § 1. § 5 U.S.C. 552 at note 11. infra Sanger Shirley Green from David E. Letter 2. 18, 1986), Appendix (J.App.) (July Challenger 36. Joint 3, 1, Letter, J.App. Levy supra at note 37. 5. digi- inflight three was outfitted with recorders, performed a each which tal separate data, 6. Id. payload One monitored function. data, engine another monitored main Bradley to E. system See Ann David San- 2" here— 7. Letter from “OPS involved the third—the 30, 1986), Ap- (Sept. J.App. ger voices. Brief for 46-50. recorded astronauts' 4; pellant W. Moore- Declaration of Robert 27, 1987), (Jan. 1 to Defend- head 2 Exhibit ¶ NASA, Complaint, Times v. New York Co. 8. See Facts, of Material New York ant’s Statement 20, (filed (D.D.C.) 1986), Oct. Civ. No. 86-2860 NASA, (D.D.C.) Civ. Co. v. No. 86-2860 Times J.App. 5-8. 30, 1987), (filed J.App. 105 [hereinafter Jan. system, OPS 2 Declaration]. Moorehead The 33, F.Supp. Co. 679 New York Times v. 9. microphones mount- which used voice-activated (D.D.C. 1987). 37 helmets, began the astronauts’ record- ed inside ing launch, prior 25 at 8 minutes and seconds 10. 36. power lost 73 continued until shuttle 4; Appellant at after launch. Brief for seconds (1982). 552(b)(6) agency Declaration, 2, The 5 U.S.C. supra, § ¶¶ Moorehead damage persuading the court that the burden some from submersion carries suffered recovered, days appropriate. exemption before it was salt water 43 on this account copy, State, produce U.S.App. a useable Goldberg was able Department but NASA 260 v. Ap- 71, 205, (1987), was transcribed. Brief for 210, which thereafter pellant 76 cert. de 818 F.2d D.C. Declaration, 5-6; supra, — 1075, Moorehead -, nied, L.Ed.2d 99 108 3, 4, 11. ¶¶ HUD, (1988); U.S.App.D.C. Ripskis v. 241 NLRB, (1984); Getman 746 F.2d Levy to E. Lillian R. David 3. See Letter from U.S.App.D.C. F.2d 1, 1986), (Aug. J.App. Sanger 37-38 [hereinafter Letter], Levy medical, personnel, in a or similar file.12 If draws a critical distinction between records is, then court must balance the indi- containing ‘personal information’ governmental vidual and interests involved records that govern- document official in order to determine whether disclosure ment activity.”18 Consequently, the Times clearly would constitute a unwarranted in- urges us to focus on the content of the personal privacy.13 vasion of Because the tape, not on the fact that the information is Challenger’s District Court held that voice communicated verbal rather than written tape satisfy require- did not the threshold form. Because the gathered words on the ment, stage it never reached the second of tape only Challenger’s relate launch and the test.14 nonpersonal, therefore are the Times ar- gues tape that file, is not a “similar” NASA contends that the District and so must be disclosed. concluding Court erred in that the voice atypical This is an FOIA case. At issue tape personal contained no recording, is a voice transcript of which about the astronauts and for that reason already has been released NASA. It is argues was not a similar file.15 NASA undisputed tape nothing reflects voice, being unique the human to each indi concerning lives of the astro- vidual, “clearly is information about the 16 families, nauts or members of their individual and identifiable as such.” In spoken that the words pertain only to the words, other theorizes that NASA the char Furthermore, launch.19 NASA admits that placing acteristics within the sim inflections of the astronauts’ voices do not category Exemption ilar-files of 6 are “the any appreciable reveal sound and inflection of information not [the astronauts’] 17 Accordingly, presses through voices.” available transcript:20 us file, recording to hold that the is a similar The declarations submitted and to remand the case for the District indicate that the voices of the astronauts Court’s determination of whether its re in this convey any significant case do not lease would cause a unwarranted beyond spoken, the words personal privacy. invasion of but that per- does not detract from the Times, voices, According quality sonal of the language and their “[t]he legislative history Exemption identifiability particular persons, 6 with shows that the ‘similar files’ satisfy is alone sufficient to Department Washington See Challenger State Post concerning astronauts Co., 595, 598, 1957, 1959, 456 U.S. 102 S.Ct. 72 launching shuttle. The withheld 358, (1982); Washington L.Ed.2d 362 Post Co. v. contains no information about the HHS, 139, 147, 252, U.S.App.D.C. 223 F.2d Challenger lives astronauts of their family members.” See New York Times Com- 6, pany’s Statement of Material Facts New ¶ Department 13. See State v. NASA, York Times Co. v. Civ. No. 86-2860 12, 598, supra note atU.S. 102 S.Ct. at 22, (D.D.C.)(filed 1986), 27; J.App. Dec. Defend- 362; Washington 72 L.Ed.2d at Post Co. v. Concerning ant’s Statement of Genuine Issues HHS, supra U.S.App.D.C. note Plaintiff’s Statement of Material Facts New ¶ 690 F.2d at 260. York Times Co. v. Civ. No. 86-2860 NASA,supra 14. See New York Times Co. v. note (D.D.C.) (filed 100; 1987), J.App. Jan. see F.Supp. at 36 n. 6. Transcript Challenger Crew Comments Recorder, Operational J.App. from the 39-43. Appellant 15. Brief for at 15. 16. Id. 20.This is not a case in which release of the identity will reveal the otherwise-unknown 17. Id. at 25. speaking. the individual The identities of the are, fact, Appellee astronauts 18. Brief for disclosed in the tran- script. Transcript Challenger See Crew dispute 19. NASA does not the Times’ assertion Recorder, Operational Comments from the spoken words ”[t]he on the withheld J.App. 39-43. are observations and communications of certain files quantities Exemption [Federal Government] requirement of files” “similar millions containing details about intimate 6.21 Report explains citizens,” House arises, 6 claim Thus, NASA’s “general” in nature exemption on recorded the information not because informa- rather because individuals....26 tape, protect but and seeks to must thus orally. We conveyed tion explained, “Con- Accordingly, the Court the human the sound decide whether creating a" gress’ statements nonpersonal communicating voice con- exemption’ for information ‘general the level tape to alone raise will tion sug- files’ ... quantities of ‘great tained purposes of file for a “similar” files’ was phrase ‘similar gest that narrow, broad, than a mean- rather have a 27 Ill made clear that ing.” Thus the Court highly personal need not record contain phrase construing in guidance For to 6, in order details Exemption we must intimate information or files” in “similar did, Su Exemption look, District Court of purposes as the file for a similar be Department in decision preme Court’s 6. There the Co.22 Washington Post v. State however, Court, discard did not establish reputedly records that held Court In- entirely. similarity test of threshold Iranians of two citizenship status ing the its that deed, specifically the Court stated similar constitute Iran would living in an eviscer- taken as not be should decision interpret had court previously This files.23 Exemption 6 stage of the the first ation of only agency including files” as “similar ed analysis: personal containing information records per in found as that in will not nature 6 or intimate construction of This leg Drawing on medical files.24 sonnel or re- threshold meaningless the render however, Supreme history, islative contained be that information quirement not in Congress did concluded that Court medical, and similar files personnel, in a narrow files” “to to limit “similar tend fails screen test which reducing it to a kind containing only a discrete files class of will not that any information out 25 theOn con information.” personal balancing private out screened said, Court trary, the are interests.... against [T]here Reports, al- Senate House and [t]he files many undoubtedly Government “similar phrase defining though not personal not contain Congress’ primary files,” suggest individual, the disclo- any particular 6 was to enacting Exemption purpose cause nonetheless would of which sure injury from the individuals protect In- persons. certain embarrassment from the can result embarrassment any particular unrelated personal infor- unnecessary disclosure formation satisfy the presumably person “great referring to After mation. Simpson (1982); 1957, also 358 see 72 L.Ed.2d (emphasis in Appellant at 25 n. 10 21. Brief for 273, 270, F.2d 648 Vance, U.S.App.D.C. Crip- 208 (citing of Robert L. v. original) Declaration Commodity 27, 10, v. 1987), (1980); Trade (Jan. to Defendant’s Exhibit 2 Board pen 13 5¶ 339, Facts, Comm’n, U.S.App.D.C. York Times Trading New 200 of Material Statement Futures (filed (D.D.C.) 392, No. 86-2860 346, Civ. Co. v. 399 627 F.2d any (“[n]othing 30, 1987), J.App. 143 Jan. any indicates on voice inflection Washington Post v. Department State 25. any prob- was aware crew member 1961, 602, 12, S.Ct. at 102 at supra note 456 time”)). at lem existed at 364. 72 L.Ed.2d Supra 12. 22. note 1960, at 72 L.Ed.2d S.Ct. at 26. 72 L.Ed.2d S.Ct. at U.S. at 23. 456 362-363. at 364. 1960-1961, 72 L.Ed.2d Id. State, Department Co. 372, 373-374, 647 F.2d U.S.App.D.C. (1981), 102 S.Ct. rev’d 456 U.S. 198-199 case,

threshold more, test.28 astronauts in this without does not constitute a similar file. Applying in Supreme this case the ruling Post, in Washington Court’s Post, In Washington Supreme District Court reasoned: emphasized “Congress’ primary pur- sum, In notwithstanding its pose broad con- enacting Exemption pro- 6 was to files”, phrase struction of the “similar tect injury individuals from the and embar- Court has not eliminated rassment that can result from the unneces- requirement the fundamental that a sary disclosure of government record contain in- quoted tion.” The Court from the formation about an individual before Report, House Exemp- which revealed that “ can be considered a “similar file” within tion 6 intended to cover detailed ‘[was] 6. Since it is government records on an individual undisputed Challenger tape at which can applying be identified as to that issue here contains no such information ”32 individual.’ The Court also cited De- the astronauts or family partment Rose,33 Air Force v. in which members, satisfy does not the Court had noted that primary “the con- protection threshold un- Congress cern drafting Exemption of 6 must, therefore, Exemption der 6 and be provide was to confidentiality for the of require- released under the disclosure personal matters.”34 The Court thus has ments of the FOIA.29 made clear that a record must in- contain tape NASA asserts that because the in- formation particular person about a in or- corporates voices, identifiable human it is der to be a similar file. “personal “related to” particular to” Perhaps telling most is the Court’s lan- individuals and it as such surmounts the guage in Washington when it Post deline- disagree. “similar files” threshold.30 We ated the character of 6’s “sim- The Court’s treatment in Wash- requirement. ilar files” un- “Information ington legislative of history Post the of any particular related to person,” the Court Exemption 6 leads us to conclude that a file declared, “presumably satisfy would not is not to be considered “similar” unless at a the threshold test.”35 The information personal minimum it contains captured recording on the voice here at tion—information somehow related to an significance only respect issue bears with individual’s life. To call the sound of a to the launch of the shuttle. Al- “personal human voice information” dis- though preserved verbally, these data are plain meaning torts the and common under- tape the standing phrase, contains no information as well the as such, Congress beyond participation astronaut ascribed to it. As the tape recording the of the voices of the launch.36 4, 4, 28. 599-600, 1960, Id. at 602 n. 34. 102 S.Ct. at 1962 n. 72 U.S. at 102 S.Ct. 456 72 added). (emphasis L.Ed.2d at (quoting Department 365 n. 4 L.Ed.2d at 363 Air Force of 33, Rose, 14, supra v. note 425 U.S. at n. 375 96 9, 29. New York Times Co. v. supra note 14, 14) S.Ct. at 1606 n. 48 L.Ed.2d at 29 n. F.Supp. 679 at 36. added); (emphasis Washington see also Post Co. HHS, 12, 147, supra U.S.App.D.C. v. note 223 Appellant 30. Brief for (similar 690 F.2d at 260 files threshold "ensures protection personal privacy that FOIA's is not 599, 1960, 31. U.S. at 456 102 S.Ct. at 72 L.Ed.2d happenstance type affected added). (emphasis at 362-363 stored”) personal record in which information added). (emphasis 602, 1961, 102 S.Ct. at 72 L.Ed.2d at 364 1497, (quoting H.R.Rep. Cong., No. 89th 2d Sess. 4, U.S. at n. S.Ct. at 456 602 102 1962 n. 72 (1966) Cong. U.S.Code & Admin.News L.Ed.2d at 365 n. 4. 2418, 2428) pp. added). (emphasis 36. See note supra accompanying 33. 425 U.S. 96 S.Ct. 48 L.Ed.2d 11 and text (1976). supra. notes 19-21 tape must be tion under record- information conclude We disclosed. any particu- is “unrelated ed on similar a is not therefore person” accord- lar from is appealed judgment file. ingly argument divergent accept NASA’s To Affirmed. recording every tape hold that tobe

would GINSBURG, Judge, Circuit D.H. utterances, regardless human of audible dissenting: file be- invariably a similar content, is its essentially voice every person’s precedent, cause Supreme Court clear Under governmental example, a If, for unique. “information disclose need ac- speech about if gave a official individual” particular a applies to a agency, governmental aof tivities “would constitute its disclosure a similar automatically be would privacy.” speech invasion unwarranted no it contains the fact despite file State Department of any- official 1957, 72 L.Ed. information from the focus shifting 552(b)(6) Mere else. (1982); one 5 U.S.C. § 2d recorded nature of voices I believe in which test the manner threshold Challenger crew meets case render would Ac- conveyed individual. applying meaningless. op- threshold given the similar-files should cordingly, can, show, that release it if portunity argu- of NASA’s Moreover, accreditation privacy invade individual uniqueness ment astronauts, of the deceased families tape a sim- renders voices astronauts’ Therefore, from I dissent claims. results incongruous to lead would ilar file release NASA must decision court’s handwriting Since analogous contexts. its effect to regard without the information particular of a work as the identifiable is individuals. on those every reasoning individual, NASA’s a also become would document handwritten I type- Likewise, printed a file. similar Jarvis, B. 1986, Gregory fin- January bearing someone’s On document written McNair, Elli- E. voices, McAuliffe, are Ronald which, Christa just human gerprints, Resnik, Francis A. Onizuka, a individual, also be Judith would son S. unique to each perished J. Smith Scobee, same Michael and R. instance In each file. similar Challeng- shuttle in com- foregone, explosion be would conclusion was disaster coverage of the infor- “personal er. Media threshold bination New extensive; appellee, too much This ravaged. intensive be would mation” than more published Times, has Post Washington alone York reading expansive its after- tragedy and on 600 articles sustained. cannot lengthy awas articles Among these math. in Wash- the comment to points NASA the dis- continuing effect account similar- v. HHS Co. Post ington members’ crew later, on aster, year fairly minimal.”37 “is files grief and their in detail describing families, say that to is not agree, but We of their the loss cope with attempt to To cross is test nonexistent. threshold Families Astronauts’ See ones. loved incorporate need threshold, record Finance, With Struggle Still Grief an individual Cl, col. p. Times, Jan. N.Y. contemplated sense in the “personal” tragedy, after weeks Some communi- voice Challenger’s Exemption 6. from and recover locate to information, able no such tape contains cations com- recording of voice floor a ocean Failing to file. similar not a and thus Challenger crew among the munications protec- precondition the threshold meet F.2d U.S.App.D.C. at 37. 223 ground anyone’s personal

and between the crew and control invade privacy. New during flight. the ill-fated before and F.Supp. York Times v. duplicate tape. (D.D.C.1987). Times asked for a Our court follows the dis- request, pro- NASA declined that but did path trict court down this to error. transcript vide with a the Times Times,

tape. In a letter to II Times filed suit ing the Freedom of (FOIA). feelings grief astronauts’ families of their loved of the audio claimed that which would of hurt giving ones, an intrusion on their and loss.” in the itself the news media a “to certainly district hearing Information Act Unsatisfied, court, subject exacerbate the voices invok- copy which would it is files and similar files withhold information within one of the ment to statute. Under the ^[1] files must be public contained in FOIA, and the constitute a specific exemptions disclosed, “personnel information in 6 allows an press meeting ^[2] the disclosure of unless it comes upon request, two criteria: and medical agency govern- unwar- in the The Times claims that “a voice communi- personal privacy.” ranted invasion of fully cation is essential understand 552(b)(6) (1982). U.S.C. Although the § appro- an aircraft accident and to evaluate partic- first criterion seems to focus on the priate corrective measures.” The tran- involved, type agency ular file the Su- insufficient, script alone is the Times ar- held, dissent, preme has Court without gues, impor- contains because information, requested it is if “[t]he satisfied transcript tant information which NASA’s stored, “applies particu- however it is to a totally —even if it were accurate —cannot lar individual.” bring public light,” such as “voice inflec- U.S. at 102 S.Ct. at 1961. The Su- background tions” and noises from the preme explained: Challenger’s rocket boosters. This infor- plain language exemp- Under the mation, contends, the Times will enable the tion, nonintimate about a verify NASA’s conclusions that happens individual which warning “the had no advance astronauts personnel be contained in a or medical problem and that the sounds from the file can be withheld if its release would ” engines were not ‘unusual.’ clearly constitute a unwarranted invasion personal privacy. yet, And under re- claim, response In argues to this spondent’s exemption, view of the the says —the court “admits” —that “the information, very being same non-inti- convey voices of the astronauts ... do not mate and therefore not within the “sim- any significant beyond information the language, subject ilar files” would be spoken....” only words The other infor- mandatory happened disclosure if it to be mation that disclosure personnel contained in than records other reveal is the sound and inflection of the protection or medical files. of an “[T]he during last crew’s voices the seconds of right privacy” individual’s which Con- lives, their which NASA maintains is ex- gress sought by preventing to achieve empt from disclosure under the FOIA es- “the disclosure of which [information] sentially its release would occasion because individual,” might H.R.Rep. harm the clearly person- “a unwarranted invasion of Cong., No. 1497 2d at 11 Sess.] [89th privacy.” al (1966)], surely was not intended to turn [ argu- rejected The district court NASA’s upon the of the file which contains label ground the ment on the “contains damaging information. no information the astronauts or about ij! jjs !{! s*s sfc members,” family their therefore is not a sum, “personal, Congress medical or similar file” within In we do not think that FOIA, Exemption 6 of the meant to limit 6 to a narrow . regardless containing only a discrete and therefore must be disclosed class of files When unduly of whether such disclosure would kind of information.... is the what this means indication applies which disclosure information sought “personal” suggestion that court’s individual particular to a records, must courts “somehow related that which is tion is from Government in- Op. release Court at whether life.” an individual’s determine clearly a un- constitute formation would terms, I in its own Indulging the court privacy. invasion warranted that the “sound it find inconceivable (footnote at 1962 601-02, S.Ct. during the person’s voice of a inflection” added). omitted) (emphases life is not infor- his or her seconds of last have been could not Supreme Court relates to an individ- that “somehow mation intended that Congress clearer Indeed, and the both NASA ual’s life.” to have files’ was ‘similar phrase “the reveals that this information Times contend narrow, meaning.” broad, than rather of their the astronauts were aware whether Yet the Court 600, 102 at Id. fate—information impending test a new this low threshold adds to today in the tran- revealed argues is not Times cross the height: “To uncertain barrier why this explain The court fails script. threshold, a record [must] files] [similar to an “somehow related information is not individ an about information incorporate life.” individual’s ’ contem in the sense ‘personal ual that “contains “admits” that Opinion 6.” plated lives added). no information (emphases (Court Op.) any of or Challenger astronauts “personal” use this else Whatever something members,” Statement more Defendant’s family means, apparently it is Concerning Plaintiff’s test Court’s Issues than the of Genuine ato merely “applies as to Which Fact of Material Statement Issue, individual”; the information No is Genuine Claims There Plaintiff in this case requested has Times individu- the astronauts’ argues that but that test. satisfies “person- constitute recognizable voices ally those indi- relates to adjec- al information court’s use does What Times viduals; wants indeed the meaning of the to the “personal” add tive personal to threshold? it contains files” “similar because Supreme Court’s an terms, phrase “about astronauts.” dictionary those In are “personal” the word individual” dispute, and too obvious seems This See, Webster’s e.g., virtually synonymous. Instead, it do try to so. does not Dictionary Collegiate New Ninth informa nature of mischaracterizes “of, relating (defining “personal” as (1983) requested: Times has tion that New person”); Webster’s to, affecting arises, Exemption 6 claim “NASA’s Dictionary 1338 Unabridged Universal on the recorded information because “belonging as (defining “personal” (1979) is that information rather because tape, but things or abstrac- to beings, not to human It at 605. orally.” Op. Court conveyed however, court, means tions”). The Times’ as uncritically the accepts therefore an “about something more than “personal” tape offi that the sertion “document[s] actually uses both it since individual” 604, and activity,” at all government id. cial inflection The breath. in the same phrases “information the that easily concludes too conveys anything moreover, voice, if it aof to is ‘unrelated on the recorded an individ- something all, “about conveys at 607. This Id. at person’_” particular “per- Likewise, use court must the ual.” to completely ac fails characterization “belonging to more than mean to sonal” the in between knowledge the distinction individu- an identified beings,” since human and in by the conveyed sound formation human belongs to a obviously al’s voice the and voices astronauts’ flection required for is What more being. the as by the words conveyed are told We then? “personal,” tion be they words the While spoke. tronauts “is is that which something more the that transcript that in the set are down 6,” spoke but contemplated by released, has timbre of their (quoting, 1959-60 and revers- insights voices is not. Whatever can be ing, court); hence the court resurrects voices, gleaned from their whatever infer another, that limitation even more thoughts ences can be drawn about their opaque guise. feelings very at the and moment of their We Supreme from the know Court’s deaths, they are not be found in that Washington Post decision that information transcript; they anywhere, if are they are might the release of which constitute an tape. meaning So of Mark Anto personal invasion of privacy includes ny’s speech body over the of Caesar is not whether an individual is a United States in the printed be found words on the citizen, “[¡Information and place such as but in the voice page that contradicts them. birth, birth, date of date marriage, em- why is tape, That Times wants the and ployment history, and comparable data why pure that is it is fiction for the court to normally regarded not highly as [that] pretend that voices in the are personal.” 102 S.Ct. at 1961. * any particular “unrelated person.” Yet, we voice, told that an are individual’s if ignore Even we were to which the acknowledges is “essential- recorded in the last moments ly unique,” is different because it not does lives, I crew’s should still think that the contain information—information sound and inflection of an individual’s voice “somehow related to an individual’s life.” “applies information that to a What, then, does the court consider to be Suppose, example, individual.” for that a “personal” information? Where is the dis- analyst had examined the and non-personal tinction between voice and report written a describing each astro- birth, citizenship, date of report naut’s might voice. in part read place shown, As I birth? have it cannot high, follows: “Astronaut A has reedy that be the latter data are all “somehow voice, and she sylla- tends to slur certain life,” related to an individual’s an while points At various flight bles. the short individual’s voice any par- is “unrelated to Challenger, her voice reveals her person.” ticular Op. Court exhilaration, intensity, and sense of mis- Perhaps court’s failure to follow seriously sion.” Could be doubted that way obviously so laid out for us this is “applies information that partic- to a Supreme (but can explained Court sure- individual”? ular No. And by the court’s ly justified) by apparent not its concern lights, own it would make no difference 6 will become a cover the information is stored in this form government secrecy, high unwarranted raw, than in rather its audio form. I there- wide barrier between the understand, do not fore and the court does government it, that serves defeating explain, say how it can call “[t]o underlying purpose of the FOIA. See ‘personal sound of a human voice infor- Op. Court Putting at 606-07. aside our plain mation’ distorts the meaning and com- authority ignore lack of Court understanding phrase, mon as well decisions, toor limit them to their facts as Congress as the ascribed to it.” practice the court in Op. limits appear It would today, this fear is simply disagrees simply this Court unfounded. with Su- preme That requested Court’s decision the “similar is contained threshold is not in a only files” limited to “similar file” is a threshold deter- “highly personal” mination; tion that is follow, or “inti- it does not a without mate,” Post, Washington more, good 456 U.S. at agency deal that an can with- * apparently disputes accuracy The Times also the independently verify agen- trict court could the transcript agen- of the NASA released the camera, cy’s representations weigh in release of cy’s conclusion that the offers no addition- any transcript, corrections or additions to the al information as to what the astronauts knew or as to the cause of the disaster. public and thus that the ensure receives the all Insofar as the it, guarantees that the FOIA with- accuracy transcript agency's of the and the char- compromising protected privacy out interests. issue, however, of it are acterization in the dis-

6H n. 48 L.Ed. n. 96 S.Ct. in- may withhold the agency it. hold 2d demonstrate, in if it can formation testing, that adversarial court, subject to £ ífc sN Ss sf: clearly un- constitute a “would disclosure in- files” been the words “similar Had privacy.” of invasion warranted only a narrow addition to be tended files,” if “incongruous” there nothing and medical Thus, “personnel there speech for concern an to be no reason tape of official would seem as a such records exemption’s being “held within the threshold the meet letter a handwritten clear bounds,” surely would be and there because Supreme Court by the established history that legislative in the suggestions in handwriting the tape or the on the voice intended. meaning was a narrow such individu- to a “applies letter the text of course, 599-600, the written First, al.” 456 U.S. Washington the version of typewritten a speech or the at 1960-61. 102 S.Ct. case, in this would transcript letter, like the precedent, the court of this In the face of the information supply all ordinarily hardly do oth- agree could professes —it it. Sec- requesting person by the sought the similar files erwise—that the for specifically ond, request if the were Op. at 607. “fairly minimal.” See Court holographic the speech or tape of audio why the principled reason it offers no Yet would letter, “similar file” a version con- does not of an individual’s voice sound unlikely highly involved, it seems but particu- “applies to a vey information disclo- that its show agency could for individual,” why that the is not lar implicate originals would file" within the sure a “similar that reason alone en- beyond that privacy interest significant Exemption 6. meaning of ver- typewritten disclosure tailed in “consti- fact, If, its release in sions. Ill per- invasion clearly unwarranted

tute a expan- “much too to avoid In its haste however, it should be then privacy,” sonal Post,” Court reading of sive is what for that disclosure exempt from primary overlooks the court Op. at Exemption 6. provided Congress As the Exemption 6. purpose emphasized: Supreme Court As exemp- case, the in that made clear privacy of protect the intended Judiciary tion was Committee Senate [T]he in a whom [personal] individuals to that ... a “consensus reached This court’s pertains. requested public, record opened to the not be files should must con- record insistence cryptic exemp- upon general decided and ... of information unspecified type tain some specific a number of than rather tion under- “personal” deems the court various for statutory authorizations advancing without exemption mines Cong., No. 89th S.Rep. agencies.” un- avoid purpose FOIA larger added). The Sess., (1965)(emphasis 1st government. secrecy in warranted balancing concluded Committee interests, not Challenger against private Whether disclosure infor- clearly files in which the nature would constitute tape in this case contained, limit the we do privacy, should invasion mation unwarranted record “It is believed on exemption: discern scope of know cannot the astronauts exemption is held families of scope of the us. The before the basis explain limita- attempted camera by the use within bounds claims, the district but privacy invasion unwarranted tion of ‘a ” because, like Thus, rejected their affidavits primary “the court privacy.’ analysis of its today, it truncated Exemp- drafting Congress concern I threshold. Exemption 6 claim at provide for confidential- was to tion 6 for the district this case would remand Department matters.” ity any invasion whether determine Rose, 425 v. Force Air Challeng- privacy that the disclosure “clearly cause is or is not

er will Washington Post

unwarranted.” See 603, 102 S.Ct. at 1962.

456 U.S. at GAS TRANSMISSION

RATON

COMPANY, Petitioner,

FEDERAL ENERGY REGULATORY

COMMISSION, Respondent.

No. 87-1021. Appeals,

United States Court

District of Columbia Circuit.

Argued Oct. July

Decided

Case Details

Case Name: New York Times Company v. National Aeronautics and Space Administration

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 29, 1988

Citation: 852 F.2d 602

Docket Number: 87-5244

Court Abbreviation: D.C. Cir.