include background noises or voices inflections not reflected in the transcripts." Exhibit A, plaintiff's motion for summary judgment.
In a letter dated August 1, 1986, NASA responded to the Times' request, granting it in part and denying it in part. NASA provided the Times with a document identified as "a copy of the transcript of the tape of the Challenger crew comments from the operational recorder", but denied the request for a copy of the tape itself on the basis of Exemption 6, stating that "the privacy of the families of the astronauts would be invaded significantly by its release because it would subject them to hearing the voices of their loved ones, an intrusion on their grief which certainly would exacerbate feelings of hurt and loss." Exhibit B, plaintiff's motion for summary judgment. The Times appealed the initial decision to withhold the tape, but that decision was affirmed on September 30, 1986, by the Office of the Administrator of NASA, which also relied exclusively on Exemption 6 as the basis for the withholding. The Times thereafter commenced this lawsuit to compel release of the tape.
It is an undisputed matter of record that the tape at issue here contains no information about the personal lives of the astronauts or any of their family members, but only the comments, observations, and communications of certain of the Challenger astronauts concerning the launching and flight of the Shuttle on the date of the accident.
As previously noted, Exemption 6 of the FOIA protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Resolving the question whether an agency's withholding of records on the basis of this Exemption is proper involves a two-step analysis. The threshold determination to be made is whether the information withheld is contained in a personnel, medical, or "similar" file. If so, the Court must then proceed to determine whether its release would be a "clearly unwarranted invasion of personal privacy." Arieff v. Department of Navy, 229 U.S. App. D.C. 430, 712 F.2d 1462, 1466 (D.C. Cir. 1983); Washington Post Company v. Department of Health and Human Services, 223 U.S. App. D.C. 139, 690 F.2d 252, 260 (D.C. Cir. 1982).
With respect to the threshold issue, NASA concedes, as it must, that the requested tape is neither a personnel nor a medical file, but argues that it is a "similar file" under the broad construction given to that term by the Supreme Court in Department of State v. Washington Post Company, 456 U.S. 595, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982). The Times, on the other hand, contends (1) that NASA has incorrectly interpreted the Supreme Court's decision in that case as standing for the proposition that a record need not contain any information about a person in order to be a "similar file", (2) that the Court did not eliminate the requirement that a record contain personal information about a particular individual in order for that record to be considered a "similar file" within the meaning of Exemption 6, and (3) that the withheld tape cannot be such a file because it contains no information about the astronauts or any of their family members. The Court agrees with plaintiff's interpretation of the Supreme Court's decision and holds that the tape in question is not a "similar file" entitled to protection under Exemption 6.
Prior to the decision in Department of State v. Washington Post Company, supra, our Court of Appeals had embraced a narrow interpretation of the term "similar files" and had repeatedly held that it applied only to those records which contained information as highly personal or as intimate in nature as that typically found in personnel and medical records. See e.g., Simpson v. Vance, 208 U.S. App. D.C. 270, 648 F.2d 10, 13 (D.C. Cir. 1980); Board of Trade v. Commodity Futures Trading Commission, 200 U.S. App. D.C. 339, 627 F.2d 392, 398 (D.C. Cir. 1980). While the Supreme Court in Department of State v. Washington Post Company rejected this restrictive approach and held that Congress intended that the phrase "similar files" have a broad rather than a narrow meaning, the Court's decision cannot be read as having eliminated the requirement that a government record contain information about an individual in order to be considered a "similar file" under Exemption 6.
As our Court of Appeals later recognized, the Supreme Court rejected the narrow and restrictive construction of the "similar files" language to "ensure that FOIA's protection of personal privacy is not affected by the happenstance of the type of agency record in which personal information is stored." Washington Post Company v. Department of Health and Human Services, 223 U.S. App. D.C. 139, 690 F.2d 252, 260 (D.C. Cir. 1982) (emphasis added).
It is evident throughout the Supreme Court's opinion in Department of State v. Washington Post Company, supra, that the Court presumed that a record can be considered a "similar file" only where it contains personal information about a particular person. For example, the Court, referring to the legislative history, noted that "Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." Id. 456 U.S. at 599 (emphasis added). The Court went on to cite language from the House Report stating that "'the exemption was intended to cover detailed Government records on an individual which can be identified as applying to that individual.'" Id. at 602 (quoting H.R. Rep. No. 1497, 89th Cong., 2d Sess. 11 (1966)) (emphasis added). The Court also cited with approval one of its earlier decisions in an Exemption 6 case and its pronouncement there that "'the primary concern of Congress in drafting Exemption 6 was to provide for the confidentiality of personal matters.'" Id. at 599-600 (quoting Department of Air Force v. Rose, 425 U.S. 352, 375, n.14, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976)) (emphasis added). Also significant is the Court's statement that "information unrelated to any particular person presumably would not satisfy the threshold test" for protection under Exemption 6, that is, that it be contained in a personnel, medical, or "similar file". Id. 456 U.S. at 602, n.4.
In sum, notwithstanding its broad construction of the phrase "similar files", the Supreme Court has not eliminated the fundamental requirement that a government record contain personal information about an individual before it can be considered a "similar file" within the meaning of Exemption 6. Since it is undisputed that the Challenger tape at issue here contains no such information about the astronauts or their family members, the tape does not satisfy the threshold requirement for protection under Exemption 6 and must, therefore, be released under the disclosure requirements of the FOIA.
An appropriate order and judgment will be entered together with this opinion.
This matter having come before the Court on Plaintiff's Objection To In Camera Proffer Of Declarations, and the Court having considered said objection and defendant's response thereto, it is hereby
ORDERED that Plaintiff's objection is sustained; and it is further
ORDERED that defendant's proffered declarations shall not be received or filed and that the clerk shall promptly return them to defendant's counsel.
ORDER AND JUDGMENT
Upon consideration of the parties' cross-motions for summary judgment, the supporting affidavits and legal memoranda; and the argument of counsel heard in open court, and it appearing to the Court that there is no genuine issue as to any material fact and that plaintiff is entitled to judgment as a matter of law for the reasons set forth in the accompanying memorandum opinion, it is this 2nd day of June, 1987,
ORDERED that the motion of defendant for summary judgment be, and hereby is, denied; it is further
ORDERED that the motion of plaintiff for summary judgment be, and hereby is, granted; and it is further
ORDERED that defendant provide to plaintiff within thirty (30) days of the date hereof a complete copy of the tape recording which plaintiff has sought through this lawsuit.