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WAR BABES v. WILSON

July 16, 1990

WAR BABES, et al., Plaintiffs,
v.
DON WILSON, et al., Defendants



The opinion of the court was delivered by: JACKSON

 THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGE

 In this Freedom of Information Act case of unusual poignancy, plaintiffs, a voluntary association of some 300 British citizens ("War Babes"), and three of its members, seek to acquire information from the U.S. government by which they hope to locate, and if possible to establish contact with, the former U.S. servicemen they believe to be their natural fathers. Each member of the group claims to have been born of a liaison between his or her British mother and an American father serving in the U.S. armed forces in England during World War II. Defendants are the U.S. Secretary of Defense and the archivist of the National Archives and Records Administration (hereinafter, collectively, "NARA"), the custodian of the putative fathers' military service records from which their present whereabouts might be learned. *fn1"

 War Babes and its members have, to date, submitted 34 FOIA requests to NARA for the home addresses of specifically identified veterans. NARA acknowledges that 18 current addresses for the servicemen named are known to NARA, but it refuses to disclose them -- even so generally as by city or state -- citing FOIA Exemption 6, 5 U.S.C. § 552(b)(6), on the ground that to do so would be a "clearly unwarranted invasion of personal privacy." *fn2"

 The parties have cross-moved for partial summary judgment, the issue presented, they say, being entirely one of law.

 FOIA requires a government agency to disclose all records requested by anyone unless the information sought falls within one of the nine specific statutory exemptions listed in § 552(b). 5 U.S.C. § 552(d). Among those exemptions, Exemption 6 provides that an agency shall not disclose "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). In reviewing whether an agency has justifiably refused to release information pursuant to a FOIA exemption, including Exemption 6, a district court must conduct a de novo review of the evidence and must order the production of the records unless the agency sustains its burden of establishing that the FOIA exemption is properly invoked and prohibits the release of the information sought. 5 U.S.C. § 552(a)(4)(B). See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S. Ct. 1468, 1472, 103 L. Ed. 2d 774 (1989).

 Indeed, the Reporters Committee case is the Supreme Court's most recent pronouncement on the subject of the availability under FOIA of information in government files about private individuals rather than the government itself. In Reporters Committee the Supreme Court reversed a decision of the D.C. Circuit which had held FBI "rap sheets" to be disclosable under FOIA, in so doing stating certain principles which have shaped still more recent decisions of this Circuit. Within months of the Supreme Court's decision in Reporters Committee, the D.C. Circuit had two occasions to apply its teaching in the context of requests, under FOIA and otherwise, for the names and home addresses of former or current federal employees, and has, so far, found the information protected from disclosure.

 In National Association of Retired Federal Employees v. Horner, 279 U.S. App. D.C. 27, 879 F.2d 873 (D.C. Cir. 1989) ("NARFE"), cert. denied, 494 U.S. 1078, 110 S. Ct. 1805, 108 L. Ed. 2d 936 (1990), the court of appeals upheld the refusal of the Office of Personnel Management to disclose the names and home addresses of retired federal employees at the request of a non-profit association purporting to espouse the interests of such persons. And, in Federal Labor Relations Authority v. U.S. Department of the Treasury, 280 U.S. App. D.C. 236, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055, 110 S. Ct. 863, 107 L. Ed. 2d 947 (1990), only nine weeks after NARFE, the court of appeals refused to require various federal agencies to furnish federal employee unions with names and home addresses of agency employees working within the unions' respective bargaining units. In each case the court of appeals perceived absolutely no public interest (of FOIA origin, at least) in disclosure of the information -- it would reveal nothing about "'what [the] government is up to'" (see Reporters Committee, 109 S. Ct. at 1481) -- while raising the specter of commercial solicitations of the employees at home by other FOIA requesters whose motives might be less benign. *fn3"

 In NARFE, however, the court of appeals instructed that the inquiry to be made of an agency's reliance upon Exemption 6 to thwart a FOIA request is, first, to determine

 
whether [the] disclosure [of the information sought] would compromise a substantial, as opposed to a de minimis, privacy interest. If no significant privacy interest is implicated . . ., FOIA demands disclosure. If, on the other hand, a substantial privacy interest is at stake, then we must weigh that privacy interest in nondisclosure against the public interest in the release of the records in order to determine whether, on balance, disclosure would work a clearly unwarranted invasion of personal privacy."

 879 F.2d at 874 (citing, as well, Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S. Ct. 2841, 2850-53, 106 L. Ed. 2d 112 (1989); Ripskis v. Department of Housing and Urban Development, 241 U.S. App. D.C. 8, 746 F.2d 1, 3 (D.C. Cir. 1984); and Reporters Committee, 109 S. Ct. at 1476)).

 Accordingly, this Court must first determine here whether NARA has established that the World War II servicemen the plaintiffs have identified have a "substantial" or a de minimis privacy interest in government records as to their whereabouts. In NARFE, the court of appeals observed that other circuits have found individuals to have a significant privacy interest in avoiding widespread disclosure of their names and addresses. 879 F.2d at 875. Yet, having reviewed its own precedent, the court of appeals concluded that

 
the disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue. Id. at 877. *fn4"

 Plaintiffs argue that the home addresses -- and they stress they would be content with merely city and state of residence -- of these servicemen implicate, at most, a de minimis privacy interest, neither intimate nor sensitive in nature. They observe that the home addresses of the vast majority of the U.S. resident population are published annually in public telephone books, that people routinely give out their addresses on forms available to the public, and that the government itself treats these addresses as public information in many situations. Plaintiffs suggest that most jurisdictions permit disclosure of addresses contained in records of motor vehicle departments and local voter registration offices, and that ...


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