V. Waiver and Privacy Rights

In the context of the personal privacy exemptions — 6 and 7(C) — you should note that courts have held that “[t]he government cannot waive individuals’ privacy rights under FOIA” — only the individual can.⁷² “An individual can waive his privacy interests under FOIA when he affirmatively places information of a private nature into the public realm.”⁷³

For example, when former presidential candidate Ross Perot publicly disclosed that he offered to assist the government in certain law enforcement operations, a court found that he waived privacy interests in the release of his name as it appeared in records related to those matters.⁷⁴ Unless other exemptions applied to the records, redacting his name at that point “would not serve any useful purpose in protecting his privacy,” the court explained.⁷⁵ If possible, you should argue that the person who has the privacy interest has likewise waived this interest.

However, when this is not possible, you should argue instead that the public availability of the information diminishes the individuals’ privacy interest in the information. This may be helpful in persuading the agency that any privacy interest is outweighed by the public interest in the material, which is the balancing test required under those exemptions. As one court explained, such prior disclosure “may impact the . . . expectation of privacy in those materials,” although it would “not negate it.”⁷⁶