ADMINISTRATIVE LAW--Freedom of Information Act: Ban on Releasing Names of Foreigners Trained by United States Military--Cameranesi v. United States Dep't of Defense, 856 F.3d 626 (9th Cir. 2017).
The Freedom of Information Act (FOIA) requires federal agencies to release records of their practices, rules, procedures, and opinions to the general public upon request. (1) This statute is designed to provide the public with any information it requests from any federal agency. (2) FOIA contains nine exemptions regarding information that cannot be released to the public, some of which include trade secrets, personnel and medical files, and inter-agency memoranda. (3) In Cameranesi v. United States Department of Defense, (4) the United States Ninth Circuit Court of Appeals contemplated whether releasing the names of foreign students and instructors trained by the United States Military at the Western Hemisphere Institute for Security Cooperation (WHINSEC), for the purposes of monitoring these individuals, constituted an invasion of privacy. (5) The Ninth Circuit applied a two-step test weighing a person's privacy rights with the public's rights to gather information and determined that releasing the names of the foreign students and instructors at WHINSEC is an invasion of privacy, despite the danger these individuals may pose. (6)
In 1946, the United States government opened the United States Army School of Americas (SOA), which later became known as WHINSEC, to provide Latin Americans with military training and education. (7) In 1989, nineteen Salvadoran soldiers who were once trained at WHINSEC killed six innocent Jesuit priests, their housekeeper, and the housekeeper's sixteen year old child in the Salvadoran Civil War. (8) Many human rights advocacy groups demanded the release of the names of all individuals trained at WHINSEC, a request which the Department of Defense granted in 1994. (9) The United States government enacted the Leahy Amendments which regulate the training provided to foreign soldiers. (10) After the September 11, 2001 terrorist attacks on the United States, the Department of Defense issued a memorandum instructing all branches of the Department of Defense to withhold any identifying information of soldiers in order to protect them; however the Department of Defense continued releasing names through 2004. (11)
On March 1, 2011, Theresa Cameranesi and Judith Liteky (Plaintiffs), members of a human rights group dedicated to keeping a close eye on the graduates of WHINSEC and for closing down such institutions, put in a FOIA request to the United States Department of Defense requesting the names of all students and instructors trained at WHINSEC between 2005 and 2010. (12) The United States Department of Defense denied this request in part by sending records, but withholding the names of the students and instructors, citing to Exemption 6 to FOIA, which exempts the release of personnel files and medical records. (13) After an unsuccessful administrative appeal by the Plaintiffs, they filed an action in the United States District Court for the Northern District of California claiming that the United States Department of Defense violated their duty under FOIA to disclose records requested by the public. (14) The Department of Defense argued that the information that was requested fell under the sixth exemption under FOIA and presented an affidavit from the Public Affairs Specialist of the school in support of their argument to withhold such information. (15) Motions for summary judgment were filed by both parties. (16)
The district court granted the plaintiffs' request for summary judgment. (17) In its opinion, the district court found that the Department of Defense failed to establish that the foreign students and instructors at WHINSEC had a privacy interest since their names were always released to the public prior to 2004 and that these individuals were never promised confidentiality. (18) On May 13, 2017, the United Stated Department of Defense filed an appeal in the Ninth Circuit which reversed the district court's decision, and applied a two-part balancing test: the Court weighed a person's privacy rights up against the public's right to the information, and concluded that releasing the names of the students and professors at WHINSEC is an invasion of privacy, which is exempt under the sixth exemption to FOIA. (19)
Prior to FOIA, the United States government had sole discretion whether to release information that citizens requested. (20) With the emergence of FOIA, the United States sought to offer its citizens transparency with the ability for citizens to request information they desired from different federal branches. (21) Despite the desire for transparency by citizens and some members of Congress, a few exceptions were carved out to protect the federal government against potential harm to national security and business interests. (22) Among the most popular exemptions to FOIA is the individual privacy exemption, which excludes the release of personnel and medical files. (23)
The individual privacy exemption to FOIA is one of the most controversial exemptions under FOIA. (24) Upon the adoption of these exemptions, a popular case that employed the individual privacy exemption was United States Dep't of Justice v. Reporters Comm. For Freedom of Press, (25) which determined the limits of what information may be requested from the United States Department of Justice. (26) In Reporters Comm. For Freedom of Press, a news group requested a list of individuals with criminal records from the United States Department of Justice. (27) The factors the Supreme Court of the United States looked to in order to determine if the requested documents were an invasion of privacy and barred under the sixth exemption to FOIA were: (1) the "nature of the requested documents (2) their relationship to the basic purpose of FOIA, which focused on the citizen's right to be informed about the government's actions." (28)
The invasion of privacy exception was further expanded and clarified by other Supreme Court cases. (29) The Supreme Court has created and applied a balancing test, which weighs the public interest in the requested information against the governmental interest in withholding such information. (30) Cases like United States Dep't of Defense v. Federal Labor Relations Auth., (31) have applied such balancing tests creating a precedent for future cases. (32) The Court in Federal Labor Relations Auth., applied the balancing test to the request for the release of federal workers' home addresses and determined that release of this information is a clear invasion of privacy. (33)
In Cameranesi v. United States Dep't of Defense, (34) the Ninth Circuit Court of Appeals faced the issue of whether to grant a FOIA request to release the names of the foreign professors and students trained at WHINSEC. (35) The Ninth Circuit Court of Appeals began by weighing the privacy rights of the individuals at WHINSEC against the public's right to the governmental information. (36) The Court determined that the sixth exemption, which protects individuals from releasing information that may amount to an invasion of privacy, outweighs the public's need for the information. (37) Specifically, the Court looked at whether releasing the names would subject the individuals to "possible embarrassment, harassment, or the risk of mistreatment," indicating that the threat must outweigh the need for the public to gain this information. (38)
Furthermore, the Court differentiated between information that can increase the public's knowledge of governmental activities and policies with information that provides the public with no greater understanding of governmental activity. (39) The Court held that releasing the names of the individuals would likely open them up to the possibility of harassment from the media and thus outweighs the benefit the public may have gained. (40) The Court analyzed the invasion of privacy, not only that foreign individuals may face, but also other members of the government in various agencies. (41) The dissent in Cameranesi rebutted the majority's analysis, finding that the public interest in disclosing these names far outweighs the privacy interest of these individuals. (42) The dissent reasoned that the purpose of FOIA was to make governmental activity transparent to the public. (43)
The Ninth Circuit Court of Appeals incorrectly reversed the district court's decision in finding that the students and teachers at WHINSEC had a greater privacy interest in keeping their names confidential. (44) By reversing this decision, the Ninth Circuit demonstrates it would rather protect an individual's needs for privacy than to promote national security by disclosing the names to groups that will track the trained individual. (45) Moreover, the Court avoided the public interest in knowing what the government's tasks are and who they are working with by failing to disclose the names, forgetting the purpose behind the creation of FOIA. (46)
The Court improperly applied the two-step test in determining that the foreign individual's privacy interests outweigh the need for the public information. (47) The disclosure of the names of these military trained individuals is necessary to keep the public aware of governmental activities. (48) This objective is clearly within the legislative intent and purpose of FOIA. (49) The public interest in the release of these names is great because it keeps a check on the United States Department of Defense, ensuring that they have not violated any part of the Leahy Amendment which restricts the government from providing training or assistance to foreign armed forces who have violated human rights. (50) Without the disclosure of these names and a periodic check-up on soldiers in the Central, South American, and Caribbean countries, the United States government might be in violation...