Memorandum

To:       Associate Solicitors
          Regional Solicitors
          Field Solicitors
          Designated FOIA Attorneys

From:     Glynn D. Key   /s/ 
	  Associate Solicitor
          Division of General Law

Subject:  FOIA Requests for Commenter Names and Home Addresses

We are also aware that in at least one instance, two offices within the same bureau came to different conclusions when they balanced the privacy interest against the public interest in disclosure of the names and home addresses of individuals who commented on the same proposed bureau initiative. In that case, one office withheld the names and home addresses of the commenters, while the other office made a determination to release the names of the same commenters, but withhold the commenters' home addresses. As you know, over the past few years the issue of inconsistent treatment of FOIA requests for names and home addresses has made our defense of FOIA lawsuits more difficult.

Because the Office of the Solicitor has concerns about this Department's inconsistent treatment of FOIA requests for names and addresses of individuals who submit comments on proposed agency initiatives, we are issuing the following guidance.^2/

Private/Public Interest Balance Test

It is well established that determining whether information is protected from release by exemption (6) requires a process in which the privacy interest at stake is balanced against the public interest, if any, in release of the requested information. Department of the Air Force v. Rose, 425 U.S. 352 (1976); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). The courts have long recognized that a person has a privacy interest in his or her home address. DOD v. FLRA, 114 S.Ct. 1006 (1994); National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989). This Office has consistently taken the position, with Department of Justice support, that there often is a privacy interest in an individual's name, as well as his or her home address. On the public interest prong of the balancing process, the Supreme Court has determined that in order for any public interest in release to be considered, the information sought to be disclosed must shed light on the agency's performance of its statutory mission. United States Department of Justice v. Reporters Committee for Freedom of the Press, supra.

Thus, generally speaking, the individual's name and/or home address may be protected pursuant to exemption (6) if (1) there is no qualifying public interest in the information because release of the name and/or home address itself does not shed light on the agency's performance of its statutory duties; or (2) there is a qualifying public interest in the name and/or home address but the public interest does not outweigh the privacy interest in disclosure of the information. Our appeal opinions, after applying the balancing test, frequently have concluded that both names and home addresses are protected from release by exemption (6). However, this general rule changes when the names and home addresses at issue involve individuals who have willingly introduced themselves into a public arena like commenting on proposed agency initiatives or making a FOIA request.

Privacy Interest of Commenters

Consistent with Department of Justice guidance, this Office is of the view that when a bureau or office solicits comments from the public on a proposed agency initiative, such as in connection with a rulemaking; an environmental impact statement; environmental assessment; general management plan; etc., the private individuals who submit comments on the initiative do not ordinarily expect that their names will be kept private. See FOIA Update, Winter 1985, at 6. Although we are not aware of a court holding directly on point, the courts have held generally that when individuals participate in other public governmental processes, these individuals do not have a privacy interest in the fact of their participation. See Holland v. CIA, No. 91-1233, slip op. at 30-32 (D.D.C. Aug. 31, 1992) (researcher who requested assistance of presidential advisor in obtaining CIA files he had requested held comparable to FOIA requester whose identity is not protected by exemption (6)); Martinez v. FBI, No. 82-1547, slip op. at 7 (D.D.C. Dec. 19, 1985) (identities of news reporters seeking information concerning criminal investigation not protected) (Exemption (7)(C)). Accordingly, a privacy interest does not ordinarily attach to the names of commenters. Therefore, generally speaking, release of commenters' names would not cause the invasion of privacy necessary to trigger exemption (6)'s balancing test.^3/

We believe that in special circumstances, there may exist a privacy interest in a commenter's name. A special circumstance would be where the comments pertain to sensitive and/or controversial matters, and releasing the individual's name could cause a clearly unwarranted invasion of personal privacy, or where release of the name alone could reveal the person's home address.^4/ There does not exist any case law on this issue but the Department of Justice has indicated to us that they support this position. If a determination is made that a privacy interest does exist in these special circumstances, then this interest must be balanced against the public interest, if any, in disclosure of the information.

Concerning home addresses, it is our opinion that private individuals who submit comments on proposed agency initiatives have a privacy interest in this information. This position is consistent with the case law recognizing the general privacy interest in home addresses. See DOD v. FLRA, 114 S.Ct. 1006 (1994). This general rule remains intact even in the context of a public governmental process like commenting on a proposed agency initiative. An individual's participation in the public process does not dilute his or her privacy interest in his or her home address. This privacy interest must be balanced against any qualifying public interest in disclosure.

Public Interest

In its Reporters Committee decision, the Supreme Court limited the concept of public interest under the FOIA to the "core purpose" for which Congress enacted it: To "shed[] light on an agency's performance of its statutory duties." Information that does not directly reveal the operations or activities of the federal government, the Supreme Court has stressed, "falls outside the ambit of the public interest that the FOIA was enacted to serve." If an asserted public interest is found to qualify under this narrowed standard, it then must be accorded some measure of value so that it can be weighed against the threat o privacy.

Generally speaking, the release of the home addresses will not shed light on bureau or office statutory duties because the home addresses themselves will divulge nothing about the bureau or office. Therefore, it is our opinion that in most cases the privacy interest will outweigh the public interest (there generally being none) in disclosure of the home addresses. When a bureau or office determines to make such comments part of its public or administrative record on a proposed initiative, possibly for viewing in a public reading room, before doing so it should ensure that the private individual home addresses are redacted.

There may be cases where a bureau or office, during its rulemaking or other public process, will advise potential commenters that all comments received, including names and home addresses, will be made available to the public in its administrative record and/or pursuant to a FOIA request. This advice may also mention that commenters may indicate that they do not want their names and/or addresses made available to the public. If a commenter objects to disclosure of his or her home address, the bureau or office, generally speaking, and for the reasons discussed above, should not disclose the home address. Again, the determination to release or withhold the home address should be made on a case-by-case basis. If a commenter also objects to disclosure of his or her name, the bureau or office should evaluate release of the name pursuant to the guidance in this memorandum. To avoid implying that requests from commenters will guarantee that their home addresses and/or names will be withheld, the bureau or office should indicate in its notice that commenters' requests to have their home addresses and/or names withheld from public release will be honored to the extent permissible by law.

Conclusion

While you should be guided by the information in this memorandum, you are reminded that FOIA requests for names and home addresses should be evaluated on a case-by-case basis, balancing the privacy interest against the public interest, if any, in disclosure. Because of the importance of this issue, bureaus and offices should coordinate their responses to FOIA requests for names and home addresses with their designated FOIA attorneys. By copy of this memorandum, we are requesting that the Departmental FOIA Officer forward this guidance to the bureau and office FOIA coordinators.

Any questions concerning this memorandum may be addressed to Robert H. Moll, Assistant Solicitor, Branch of General Legal Services, or Barbara Abate, Paralegal, at (202) 208-5216.

cc:  GLS Attorneys
     Department FOIA Officer
     Department FOIA Appeals Officer

FOOTNOTES

1/   An article in the May 4, 1995 Albuqerque Journal
discussed the Forest Services's inconsistent treatment of requests for names and home
addresses of individuals with whom it does business, such as ranchers with grazing
permits and those who file comments on pending policy decisions.  The article advised
that the Forest Service, prompted by an Albuquerque Journal inquiry into the varying
policies in the Forest Service's different regions, will standardize its policy on the
release of such information.

2/   This memorandum supplements the Department FOIA Officer's
June 17, 1994, memorandum concerning the processing of FOIA 
requests for names and home addresses.

3/   Organization or business entities and individuals listed
only in their capacity as representatives or officials of organizations or businesses
have no protectible privacy interest.  Therefore, the names and addresses of such
entities are not protected under exemption (6), and must be released.  See,
e.g., Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); National Parks & 
Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir.1976);  Ivanhoe Citrus Ass'n v. Handley, 612 F. Supp. 1560, 1567 Providence Journal Co. v. FBI, 460 F. Supp. 778, 785 (D.R.I. 1978), rev'd on other grounds, 602 F.2d 1010 (1st Cir. 1979), cert. denied, 444 U.S. 1071 (1980).
4/   A determination to withhold the names of commenters 
because of these special circumstances should be made only after consultation with the Office of the Solicitor.  Further, the bureau or office may not use some arbitrary figurein determining what information to release and what information to withhold (e.g., withhold the names of individuals who reside within 50 miles of a sensitive area, and release the names of individuals who reside beyond 50 miles of the area.)  Bureaus and offices should always exercise reason and honest judgment in making these determinations.  If a bureau or office determines to withhold the names of individuals, it should have substantial cause in doing so.  Lastly, the bureau or office should document the existence of the special circumstances in its files, articulating exactly how disclosure would adversely afect the individuals.  This documentation should be made available to the Division of General Law if an administrative appeal is taken from the denial of information.