The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON
This Freedom of Information Act ("FOIA") case is before the Court for the second time, on remand from the Court of Appeals. On December 7, 1990, the Court of Appeals reversed this Court's earlier decision granting summary judgment in plaintiff's favor and held that a voice recording of the Challenger astronauts is a "similar file" for purposes of FOIA Exemption 6. This Court must now balance the relevant privacy interests in non-disclosure against the public interest in disclosure to determine whether the tape should be released. Pending before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Court will grant defendant's motion for summary judgment and deny plaintiff's motion for summary judgment.
On July 18, 1986, a New York Times reporter submitted a written FOIA request to NASA seeking "transcripts of all voice and data communications" recorded aboard the Challenger as well as "copies of the voice communications tapes." NASA responded on August 1, 1986, with a transcript of the OPS 2 tape, but it denied the request for a copy of the tape itself, claiming exemption under § 552(b)(6) of FOIA. After unsuccessfully appealing the decision to the Office of the Administrator of NASA, plaintiff filed suit in this court on October 20, 1986. Plaintiff did not dispute that the transcript of the tape which defendant had provided was accurate insofar as it indicated what words were actually spoken in the Challenger cabin;
rather, the reporter who submitted the FOIA request suggested that there was "factual information concerning the events surrounding the shuttle accident" to be gleaned from inflections of the astronauts' voices and background noises.
This Court granted plaintiff's motion for summary judgment on June 3, 1987, holding that Exemption 6 was inapplicable to the Challenger tape because the tape did not fall within the definition of "similar file" and, therefore, did not meet the threshold Exemption 6 standard. Although a three-judge panel of the Court of Appeals initially affirmed that ruling, a majority of the Court of Appeals vacated the panel decision and ordered an en banc hearing. By decision issued December 7, 1990, the Court of Appeals held, in a 6-5 vote, that the tape did meet the "similar files" threshold test of Exemption 6. New York Times Co. v. National Aeronautics and Space Administration, 287 App. D.C. 208, 920 F.2d 1002 (D.C. Cir. 1990) (en banc). The Court of Appeals remanded the case for consideration of whether the withheld tape satisfied the remaining criteria of Exemption 6, specifically, for a determination "whether any invasion of the astronauts' (or their families') privacy that the disclosure of the Challenger tape would cause is or is not 'clearly unwarranted' when compared to the 'citizens' right to be informed about what their government is up to.'" New York Times, 920 F.2d at 1010 (citation omitted).
Both parties have now again moved for summary judgment. Because there are no genuine issues of material fact in dispute, the Court's consideration of these motions is appropriate.
Exemption 6 of FOIA 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) (1988). Because there is no longer any doubt that the tape sought here satisfies the threshold requirement of Exemption 6, the Court must now determine whether disclosure of the tape would compromise a substantial privacy interest. If no significant privacy interest is implicated, FOIA demands disclosure. National Ass'n of Retired Federal Employees v. Horner, 279 App. D.C. 27, 879 F.2d 873, 874 (D.C. Cir. 1989) (hereinafter "NARFE"), cert. denied, 110 S. Ct. 1805 (1990). If, on the other hand, a substantial privacy interest is at stake, then the Court must weigh that privacy interest in non-disclosure against the public interest in release of the tape in order to determine whether, on balance, disclosure would work a "clearly unwarranted" invasion of personal privacy. Id.
NASA contends that the privacy interest at issue in this case is one enjoyed by the families of the Challenger astronauts. NASA characterizes the interest here as one that protects against disclosures which would cause the astronauts' survivors to suffer additional anguish:
One need only assume that, given the demonstrated public and press interest in the Challenger accident and its effect on the families of the astronauts, the press will not overlook an opportunity to obtain a recording of the astronauts' last words. . . . At that point, it is a certainty that inquiries will be made of the families to obtain their reactions to hearing the voices of their loved ones; that there will be a proliferation of print articles presuming to uncover and describe the emotional state of the astronauts during the period captured by the tape; . . . It simply is not reasonable to assume that the families would be able to prevent the press inquiries, to stifle the public's curiosity, or even avoid exposure to the news accounts.
Defendant's Supplemental Memorandum in Support of Summary Judgment at 9.
The Court finds that the privacy interest asserted on behalf of the Challenger families is a valid and substantial one. Plaintiff's claim that the Challenger families cannot assert a privacy interest in the tape because none of the relatives actually speak or are referred to on the tape is specious. This Circuit has recognized Exemption 6 privacy interests of relatives in various records of deceased family members. See, e.g., Badhwar v. United States Dep't of Air Force, 264 App. D.C. 397, 829 F.2d 182, 185-86 (D.C. Cir. 1987) (families of deceased aircraft pilots have privacy interest in autopsy reports which would be "of a kind that would shock the sensibilities of surviving kin"; case remanded to trial court to determine whether disclosure of autopsy would be "clearly unwarranted invasion of personal privacy"). More importantly, the Court of Appeals acknowledged such a privacy interest in this very case. In its remand to this Court, the Court of Appeals made clear that "NASA is entitled to an opportunity to prove its ...