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WASHINGTON POST CO. v. USDA

October 18, 1996

THE WASHINGTON POST COMPANY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.



The opinion of the court was delivered by: FRIEDMAN

 The Washington Post Company brings this action under the Freedom of Information Act, 5 U.S.C. § 552, to compel the United States Department of Agriculture ("USDA") to release the names and addresses of, and amounts paid to, individuals and business entities that received payments in fiscal year 1993 under the USDA cotton price support program. See 7 U.S.C. §§ 1444 et seq. USDA has invoked Exemption 6 of the Freedom of Information Act, 5 U.S.C. § 552(b)(6), which permits the government to withhold from release "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). *fn1"

 I. FACTUAL BACKGROUND

 In 1993, USDA distributed approximately one billion dollars in cotton subsidies to nearly 100,000 recipients. Declaration of Bruce R. Weber ("Weber Decl.") P 4 (Oct. 18, 1995), Def.'s Mot, Attachment A. *fn2" The cotton price support program provides deficiency payments to producers if a certain market price is not obtained during the marketing year. Weber Decl. P 2. The cotton price support program is part of a larger $ 11.7 billion system of agricultural and food subsidies, a system that includes price support and production adjustment programs as well as the food stamp program. Pl.'s Mot. at 2.

 On October 7, 1993, Sharon LaFraniere, a staff writer for The Post, requested the names and addresses of, and amounts received by, all cotton program recipients for fiscal year 1993 in connection with an article she was writing about allegations of fraud and conflicts of interest in the administration of the cotton price support program. USDA declined to release the information and subsequently denied The Post's administrative appeal, invoking Exemption 6 of the FOIA. Weber Decl. PP 5-8. The Post filed a complaint in this Court and the case is now before the Court on the parties' cross-motions for summary judgment.

 II. FOIA EXEMPTION 6

 The fundamental purpose of the Freedom of Information Act is to assist citizens in finding out "what their government is up to." United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). The FOIA mandates full public disclosure of agency records unless the requested records "fall squarely" within one or more of the nine statutory exemptions. Burka v. United States Department of Health and Human Services, 318 U.S. App. D.C. 274, 87 F.3d 508, 515 (D.C. Cir. 1996); see Oglesby v. United States Department of the Army, 316 U.S. App. D.C. 372, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Against the FOIA's strong presumption in favor of full disclosure, the government bears the burden of establishing that one or more of the FOIA exemptions applies when it seeks to withhold requested information. Department of State v. Ray, 502 U.S. 164, 173, 116 L. Ed. 2d 526, 112 S. Ct. 541 (1991).

 Exemption 6 protects from release only those "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). Exemption 6 requires "the Court to 'balance the individual's right of privacy' against the basic policy of opening 'agency action to the light of public scrutiny.'" Department of State v. Ray, 502 U.S. at 175 (quotations omitted). The Supreme Court has rejected the position that "disclosure of a list of names and other identifying information is inherently and always a significant threat to the privacy of the individuals on the list. Instead, . . . whether disclosure of a list of names 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 176 n.12 (quoting National Association of Retired Federal Employees ("NARFE") v. Horner, 279 U.S. App. D.C. 27, 879 F.2d 873, 877 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078, 108 L. Ed. 2d 936, 110 S. Ct. 1805 (1990)). The information need not be embarrassing or of an intimate nature; it will be protected so long as it invites "clearly unwarranted" intrusions. NARFE v. Horner, 879 F.2d at 875.

 As with any request under the FOIA, under Exemption 6 the identity of the requesting party is irrelevant. Records, if not exempt, must be made "promptly available to any person." 5 U.S.C. § 552(a)(3) (emphasis added). See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. at 771; Swan v. SEC, 96 F.3d 498, 1996 WL 552571, No. 95-5376, slip op. at 3-4 (D.C. Cir. Oct. 1, 1996); NARFE v. Horner, 879 F.2d at 875. "Once records are released, nothing in FOIA prevents the requester from disclosing the information to anyone else." Swan v. SEC, 96 F.3d 498, No. 95-5376, slip op. at 4. Thus, the issue is not simply what the requester might do with the information but also "what anyone else might do with it." Id. The Court therefore must consider the universe of possible consequences that the release of the information might trigger in assessing the nature of the list and the characteristics that would be revealed by its release. See Department of State v. Ray, 502 U.S. at 175-77; United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. at 771-72.

 A. The Privacy Interests of Cotton Program Recipients

 The USDA asserts that the privacy interests of cotton program recipients would be invaded if their names, addresses and the amount of subsidy they received were disclosed because they could be subject to unwanted commercial solicitations and possibly unwarranted media attention. Def.'s Mot. at 9-10, 13. Defendant relies heavily on NARFE v. Horner, where the D.C. Circuit declined to release the names and home addresses of retired or disabled federal employees to the National Association of Retired Federal Employees because the court feared that the retirees, who received monthly annuity payments from the government, would be subjected "to an unwanted barrage of mailings and personal solicitations" and that such a barrage would be contrary to the "ancient concept that a man's [sic] home is his castle." NARFE v. Horner, 879 F.2d at 876.

 The nature of the list sought by plaintiff in this case does not create the same sort of personal privacy concerns or invite the kind of unwarranted intrusions that would justify nondisclosure. The only individualized information that would be ascertainable from the release of the list is that a particular individual grows cotton, the address of the farm where the cotton is grown and where the subsidy is received, and how much of a subsidy that cotton farmer received in 1993. It might also be deduced from the amount of the subsidy how much cotton the producer grew in 1993. The Court is unable to discern, nor have defendants persuasively explained, how any of this relatively generic information about thousands of similarly situated businesspeople could lead to clearly unwarranted invasions of their personal privacy. Indeed, it is precisely because the list is so large and the information so generic that the individual privacy interests are so small. See Kurzon v. Department of Health and Human Services, 649 F.2d 65, 69 (1st Cir. 1981) ("The loss of privacy involved in disclosing the identities of all applicants is minimal; it is only the fact [that an applicant was rejected] that raises the possibility of an invasion of privacy.") (emphasis in original). *fn3"

 In a case very similar to the one at bar, Judge Gesell ordered the release of a list of names of individual mushroom producers. Ackerson & Bishop Chartered v. United States Department of Agriculture, Civil Action No. 92-1068, Memorandum (D.D.C. July 15, 1992). He reasoned that "these individuals are businessmen [sic], some of whom produce or import over 500,000 pounds of mushrooms a year. Disclosure of the named persons engaged in such business has no personal effect and obviously conduct of a ...


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