Department of State v. Ray, 502 U.S. 164, 17 (1991)

Page:   Index   Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

180

DEPARTMENT OF STATE v. RAY

Opinion of Scalia, J.

of which would constitute a clearly unwarranted invasion of personal privacy." 5 U. S. C. § 552(b)(6). As the Court recognizes, ante, at 175, this requires an agency to balance the interest in personal privacy against the public interest in disclosure. Department of Air Force v. Rose, 425 U. S. 352, 372 (1976). In the context of evaluating the public interest side of the balance, the parties in this case have vigorously disputed whether an agency must consider so-called "derivative" uses—i. e., not only the intrinsic public value of the records, but also, in this case, the potential that additional, publicly valuable information may be generated by further investigative efforts that disclosure of the records will make possible.

The majority does not, in my view, refute the persuasive contention that consideration of derivative uses, whether to establish a public interest or to establish an invasion of privacy, is impermissible. Perhaps FOIA would be a more sensible law if the Exemption applied whenever disclosure would "cause," "produce," or "lead to" a clearly unwarranted invasion of personal privacy, see, e. g., National Assn. of Retired Fed. Employees v. Horner, 279 U. S. App. D. C. 27, 32, 879 F. 2d 873, 878 (1989), cert. denied, 494 U. S. 1078 (1990)—though the practical problems in implementing such a provision would be considerable. That is not, however, the statute Congress enacted. Since the question under 5 U. S. C. § 552(b)(6) is whether "disclosure" would "constitute a clearly unwarranted invasion of personal privacy" (emphasis added); and since we have repeatedly held that FOIA's exemptions " 'must be narrowly construed,' " John Doe Agency v. John Doe Corp., 493 U. S. 146, 152 (1989) (quoting Rose, supra, at 361); it is unavoidable that the focus, in assessing a claim under Exemption 6, must be solely upon what the requested information reveals, not upon what it might lead to. Arieff v. United States Dept. of Navy, 229 U. S. App. D. C. 430, 436, 712 F. 2d 1462, 1468 (1983) (Scalia, J.). That result is in accord with the general policy of FOIA,

Page:   Index   Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

Last modified: October 4, 2007