Home Browse Media Law Resources Guides Federal FOIA Appeals Guide Exemption 7 II. Harm from Disclosure C. 7(C) i. Privacy Interest

a. Factors that Reduce/Strengthen the Privacy Interest

As with Exemption 6, the following factors — among others — may minimize or increase the privacy interest at issue. (For additional details on these points, see the sections under Exemption 6 regarding factors that minimize or increase the privacy interest).

  • Possibility of retaliation/embarrassment: a “substantial” privacy interest will be more likely found if disclosure of the information would potentially lead to some form of retaliation or embarrassment.74According to courts, Exemption 7(C) “recognizes the stigma potentially associated with law enforcement investigations,” and therefore “affords broader privacy rights to suspects, witnesses, and investigators.”75
  • Corporations: Corporations as an entity cannot claim a “personal privacy” right for the purposes of Exemption 7(C).76 However, individuals within a corporation may claim such a right personal to them.
  • Possibility of media contact: Courts have also recognized individuals’ privacy interest in avoiding unwanted media contact that could result from the release of records where the individuals are only incidentally connected to a high-profile criminal matter.77
  • Publicly available information: There is generally a diminished privacy interest in information that is already publicly available.78 However, as with Exemption 6, compilations of such publicly available information may receive heightened privacy rights under a doctrine known as “practical obscurity.”79
  • Public figures/officials: Public figures and public officials, such as government employees, “have a somewhat diminished privacy interest,” although they do not relinquish all such interests by virtue of their position.80 Generally, lower-level government employees are granted stronger privacy rights than high-level employees.81 If the records would reveal “official misconduct,” this is another factor that diminishes a government employee’s privacy interests.82
  • Deceased individual: The fact that the subject of the records is deceased diminishes the privacy interests under Exemption 7(C).83 However, the U.S. Supreme Court has held that surviving family members have privacy rights under Exemption 7(C) in “the disclosure of graphic details surrounding their relative's death.”84
  • Passage of time: Depending on the circumstances, highlighting the passage of time may in some cases reduce the privacy interest in the records. As one court stated, “for some, the privacy interest may become diluted by the passage of time, though under certain circumstances the potential for embarrassment and harassment may also endure.”85 For example, a court found an insubstantial privacy interest in the disclosure of photographs of a murder victim’s body where the events occurred 25 years prior and the government had not shown that there were any surviving relatives or — if there were any — “that they would be offended by the disclosure.”86 In contrast, a court held that the passage of time did not “diminish[] the privacy interest at stake” of individuals mentioned in a McCarthy-era FBI investigation file that was at least 35 years old, noting that there was still “division and volatility of public opinion on these matters.”87

74 Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 286 (2d Cir. 2009) (citing U.S. Dep’t of State v. Ray, 502 U.S. 164, 176-77 (1991)).

75 Bast v. U.S. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981).

76 F.C.C. v. AT&T Inc., 131 S.Ct. 1177, 1185 (2011).

77 Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 976-77 (9th Cir. 2009), cert. denied, 130 S.Ct. 3493 (2010).

78 Am. Civil Liberties Union, 655 F.3d at 12.

79 Reporters Comm. for Freedom of the Press, 489 U.S. at 757, 763-64.

80 Citizens for Responsibility & Ethics in Wash., 2012 WL 45499 at *6.

81 Forest Serv. Emps. for Envt’l Ethics, 524 F.3d at 1025-26.

82 Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001).

83 Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003).

84 Favish, 541 U.S. at 170.

85 Davin v. U.S. Dep’t of Justice, 60 F.3d 1043, 1058 (3d Cir. 1995).

86 Outlaw v. U.S. Dep’t of Army, 815 F.Supp. 505, 506 (D.D.C. 1993)

87 King v. U.S. Dep’t of Justice, 210, 226, 233-34 (D.C. Cir. 1987).