Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES DEPARTMENT OF STATE, Petitioner v. MICHAEL D. RAY, ET AL.

No. 90-747

October 9, 1991

The above-entitled case came on for oral argument before the Supreme Court of the United States at 11:02 a.m.

APPEARANCES:

KENT L. JONES, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

MICHAEL DEAN RAY, ESQ., Miami, Florida; on behalf of the Respondents.

PROCEEDINGS

11:02 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 9747, United States Department of State v. Michael B. Ray.

Mr. Jones.

ORAL ARGUMENT OF KENT L. JONES ON BEHALF OF THE PETITIONER

MR. JONES: Mr. Chief Justice, and may it please the Court:

This case arises under the Freedom of Information Act. Under exemption 6 of the act, which relates to private information and Government records, this Court has twice concluded that it is unquestionably appropriate to redact private names from Government documents produced under the act, for private names reveal nothing about how Government conducts its business.

In this case, however, the Eleventh Circuit has concluded that private names in confidential State Department interviews conducted in Haiti in the early 1980's should be disclosed.

The purpose of these interviews was to monitor Haitian compliance with its then recent undertaking to not harass or mistreat Haitians who are intercepted on the ocean seas by U.S. vessels and return to Haitian ports.

After they were returned, certain interviewees were randomly approached by representatives of the Department of State in Haiti. They were assured confidential discussions, and based upon those assurances, frank disclosure of the personal treatment that each interviewee received by the Haitian Government, as well as intimate personal information and descriptions of domestic conditions in Haiti, were obtained.

Out of the hundreds of interviews that were conducted, there was only one confirmed case where a Haitian who had been returned by U.S. vessels had been mistreated by its Government.

When respondents sought copies of these documents under the Freedom of Information Act, the State Department made them available. But in accordance with the practice approved by this Court in Rose and Reporters Committee, redacted the private names from the documents. The names of the Government officers who conducted the interviews are revealed on the documents and were not redacted.

The court of appeals applied a generalized balancing test that compared the public interest in disclosure with the private interest in privacy. The court's --

QUESTION: Are you urging the abandonment of the balancing test?

MR. JONES: There are applications for the balancing test that we still of course recognize. We think that there is nonetheless a workable rule that Congress adopted under exemption 6 that doesn't require an ad hoc balancing in each case. The legislative history, though, the Senate and House reports under exemption 6 made clear that Congress didn't intend that the choice would simply be between full disclosure and nondisclosure. The Senate report specifically says that what was intended was what was described as responsible disclosure. And the report gives specific content to that term.

The Senate report indicates that in balancing the public and private interests, what is to be accomplished is an accommodation of the two interests under which, and I quote, "neither is abrogated or substantially subordinated."

So the basic thrust of exemption 6, the primary inquiry, is how do you protect both interests. The statutory mechanism that Congress provided for this is the last sentence of Section 552(b). It specifically provides that exempt information can be redacted, but governmental public data can be disclosed.

Under exemption 6, we submit that this provision is not simply an available tool, but it is an essential feature of the mutual accommodation of public and private interests that Congress intended. It allows redaction to protect the privacy of the individuals, but it allows disclosure to present Government facts under the act.

In fact, the House report at page 11 specifically contemplated this result in providing that individualized identifying information should not be disclosed but underlying facts and compilations of statistical information should be. We submit this is the workable rule that Congress intended under the statute.

Now, Your Honor, I -- in describing this as a workable rule, it may be simply a quibble, but I do want to suggest that I see a distinction in the Court's cases between workable rules and what this Court has described as categorical rules. A workable rule is one that the Court construes as being the intended result that Congress had when it adopted the statute.

A categorical rule has been adopted by this Court in situations where there is room for judgment left in -- for the Court to make an empirical judgment about whether cases will ordinarily or most frequently properly be decided under the statute in one direction.

We think this is a workable rule that Congress intended. There is ample evidence of that intent.

QUESTION: Your view is that what you describe as a categorical view -- rule is not a workable rule?

MR. JONES: Well, I don't want to belabor the point, but as I understand the Court's decision, for example, in Reporters Committee, which of course wasn't a redaction case, it was a disclosure case. The question was whether the document should be produced. So there wasn't this -- the workable rule that we proposed wouldn't have worked.

But when the Court adopted a categorical rule in Reporters Committee, it was making a prudential judgment that the interests that Congress intended to protect were sufficiently great in the most similar cases, so -- and that the public interest in disclosure in that instance was sufficiently low that as a categorical rule, all rap sheets would be subject to nondisclosure.

Now that's a harder case than we have because we're not talking about nondisclosure. We had disclosed these reports. What we're talking about is simply the identifying information. And in the context of identifying information, the legislative history is quite clear that what was intended to be allowed was production of facts, protection of individual identities.

QUESTION: Were there -- aren't there situations such as the names or donors or participants from governmental contracts that might well be revealed to the benefit of the country?

MR. JONES: Yes, sir. In fact, our understanding of the workable rule that we think Congress intended is also elaborated by the fact that in the House report at page 6, there are only two examples given of when names would be disclosed. Those two examples are Government employees and their duty stations, and Government officers voting on official orders. In those situations, the names of the individuals directly show how Government conducts its business.

By parallel reasoning, the name of a person who is doing the Government's business would also show that. A Government contractor, a person operating under a Government grant -- these are people who are doing the Government's business even though they are still private. And we think that in those instances there would be a public interest in disclosure of the names.

QUESTION: Give me some assurance. Do I detect a shift in the Government's position between their first brief and their reply brief?

MR. JONES: I am not aware of what you might have in mind. Of course, in responding to specific arguments, we may have highlighted different issues. But --

QUESTION: You think they are entirely consistent?

MR. JONES: I'm not aware of an inconsistency, Your Honor.

Respondents seem to acknowledge that there is such a general rule. They concede that Congress intended that the redaction of private names would occur in what they describe as the majority of cases, at page 27 of their brief.

They suggest, however, that there is some exception to the general rule of redaction that should apply here. They claim that the case is outside the normal rule, solely because they can use the names of these individuals to track them down in Haiti, reinterview them, and based upon those additional interviews, determine or form a judgment about whether the Government's initial interview reports are truthful and accurate. And based upon this sole justification, they believe disclosure is required.

There is no basis in the record in this case for any assertion that the Government's interview reports are not truthful or accurate. They are -- as the Court can determine by inspecting them, simply recite conversations that occurred in confidence in Haiti. The names are the only thing that have been redacted from them. They describe details that flow from conversations. There is little in the way of interpretative remarks, not to say there is none.

But there is no basis for a suggestion that these documents are not truthful. Notwithstanding the lack of a basis, respondents claim disclosure should occur so they could find out. Well, there is no limit to that sort of unworkable proposition. The names in veterans' hospital records, Government employee records, cadet disciplinary reports as in Rose, rap sheets as in Reporters Committee -- all contain names of individuals that theoretically one could go to to inquire -- to find out if the Government's records are truthful or accurate.

This is a sweeping interference. It is truly an exception that would swallow the rule. And I want to emphasize in that regard that the rule that we're -- that we do think exists here would be swallowed by a contention that in every case we can find out if it's truthful. Because the purpose of the rule is not simply to reach a result, but it's to reach a workable result in a manner that Congress intended without ad hoc balancing in every instance.

This Court has noted the legislative history is replete with references by Congress that they desired to avoid ad hoc balancing and desired to conduct the FOIA under workable rules.

Since the Eleventh Circuit decision in this case, the Second and the Third Circuits have already had occasion to consider this exact proposition. In the Hopkins case, the Second Circuit rejected the respondent's claim as too attenuated to be a basis for ad hoc balancing.

The Third Circuit agreed with the Hopkins decision in FLRA v. The Navy.

QUESTION: Mr. Jones, what is the invasion of privacy here that is unwarranted, caused by the disclosure? The disclosure would show nothing more than that these people were interviewed by Government agents. Isn't that right?

MR. JONES: No, sir, the disclosure -- by comparison the FOIA -- litigation generally, this is an exceptionally unusual type of disclosure because it involves, as you would look at the interview reports, it involves details about their personal lives, their living conditions, their poverty, their ambitious to leave their country, their frustrations with their present living situation. This is exceptionally sensitive, personal information.

Under the Freedom of Information Act, decisions have considered the privacy interests to be sufficient simply when it would cause a commercial solicitation. This -- there -- I can't think of an analogous instance that would come close to this in terms of the nature of the privacy involved.

QUESTION: What I was interested in finding out is whether you were indeed deciding that it was a substantial invasion of privacy upon the basis of something that it will cause, such as a commercial solicitation. You're not relying on that though?

MR. JONES: No, sir. Well, I think that you can look -- as Congressman Fascell said, you look to the character of the information. The character of this information is inherently, demonstrably private. It's also, and I think it's appropriate to note this, it's quite politically charged.

QUESTION: What if they had asked for the names of the people first? Instead of asking for the documents they just asked, we would like the names of the people who were interviewed.

MR. JONES: Well, the -- I believe the --

QUESTION: I mean, you know, this happened in the reverse way. You redacted the names and gave them everything that the people had said. What if they had just said, we don't care what they said. We just want to know their names because we want to go talk to them.

MR. JONES: Well, just to put this in context, FOIA requires disclosure of documents, not lists. So presumably they would have to ask us for documents that contain such names.

QUESTION: Okay.

MR. JONES: And our -- and I offer that as a preface because in that context, the name then has a location, has a context.

QUESTION: But it's up to you whether you choose to redact the name or redact the contents, right? I mean, you could redact either one, I suppose.

MR. JONES: Not at all. No, sir, I don't --

QUESTION: What if they said, we want those documents and what we are interested in is the names of the people. So if we redact anything, don't redact the names; redact all of the personal information. We don't care what information they gave you; we just want the names. That's what we're interested in.

MR. JONES: Well, that may be their desire, but exemption 6 was cleary intended to work just the opposite result. Again, the House report states quite clearly that what we're supposed to do is produce the underlying facts, produce compilations of information, but we're not supposed to disclose identifying personal information.

QUESTION: Yes, but you are not identifying -- producing identifying personal information if you give none of these personal details; all you give is the name of the person. This was a person who was interviewed. Is that personal information?

MR. JONES: It is personal information. It is his name and it puts it in a context. He was interviewed upon return from Haiti.

QUESTION: And you think that would be an unwarranted invasion of privacy, to say that so-and-so was interviewed by the Government?

MR. JONES: Yes, particularly in this context. I think it would be in most contexts if not all, but particularly here where the nature of the interview was a person was asked voluntarily to cooperate in confidence on Haitian soil in providing information to U.S. agents about Haitian governmental action, as well as domestic conditions generally in Haiti.

Indeed, it's hard for -- it's hard to imagine a person that could come before this Court with a greater claim to privacy than a foreign national who cooperated voluntarily and in confidence with our State Department officers in providing sensitive political information as well as private, personal information about the government of the foreign country.

QUESTION: Mr. Jones, can I ask you a question I want to be sure that I get out before the time is up? Is there any question in your mind about whether these are similar files within the meaning of exemption 6? I know nobody argues it, but are there any other cases in which files that are not indexed or maintained by the agency, by the identity of the person who is the subject of the file, have been held to be similar files by this Court?

MR. JONES: I think that passports as the -- I mean, the similar files case was The Washington Post case.

QUESTION: Right, but that they asked for the information about identified people there.

MR. JONES: Okay. Well, the general -- to answer your question directly, I think Washington Post makes it quite clear that these are similar files. They do contain personal information that -- I've detailed it at length -- that would qualify under the standard of Washington Post. It hasn't been addressed below. No -- neither the district court nor court of appeals addressed it, and I don't believe it's --

QUESTION: It isn't immediately apparent to me that this fits within the definition of the statute, that I just thought I should let you know that it's probably --

MR. JONES: Your Honor, I think it is only immediately apparent after reading the Washington Post case.

QUESTION: Which involved files that were maintained under the names of the person named in the request, which is not the case here.

MR. JONES: That's correct, but the standard that the Court drew on was from the House and Senate reports which describe generally documents that contain personal identifying information. So we are well within the legislative standard and certainly within the Washington Post decision on that particular issue.

I do want to mention that there are two other provisions of the statute that reinforce the conclusion that this Court expressed in Reporters Committee that private names need not be disclosed. Section 552(a)(2) of the act provides that names may be redacted from published orders if the disclosure would constitute a clearly unwarranted invasion of privacy. Thus, the standard for redaction in that setting is identical to the standard under exemption 6.

The House report at page 8 explains that private names are properly redacted in -- under 552(a)(2) where they, quote, "have no bearing or effect on the general public." Private names inherently have no bearing or effect on the general public, especially randomly selected Haitians who were interviewed by the State Department have no inherent bearing or effect on the public.

Section 552(a)(3) also emphasizes that the focus of FOIA is on the interests of the general public because it provides for disclosure to be made to any person. Now the Court has interpreted that language to -- frequently to conclude that the individual purposes of requesters are not to be given weight in deciding whether disclosure is warranted.

The original purpose of the act was to move away from the preexisting standard of APA Section 3, which had provided for disclosure based upon the individual needs of the requester.

QUESTION: Although you do use the individual needs for determining whether there's a public interest, I presume.

MR. JONES: I don't follow your question, but I --

QUESTION: I don't know how you can decide whether the invasion of privacy is unwarranted in the sense that there is no sufficient public interest in the disclosure without inquiring into what use would be made of the information. That does require -- public interest inquiry requires you to advert to the usefulness of the information, doesn't it?

MR. JONES: I don't believe so, but even if that were correct, it wouldn't have implications for this case. I don't believe that's correct because Congressman Fascell, as we mentioned, says that under FOIA, what's relevant is the character of the information. And this Court under 552(a)(3) has often said that the particular purposes, which is another way of saying the intended uses of an individual requester, are not entitled to weight in determining whether disclosure is warranted under the act.

QUESTION: But the character of the information -- it's important information or unimportant information on the basis of what -- you know, whether it can cause the public to do something that it would not otherwise do. It's information about, you know, misdoings within the Government, which would lead to congressional investigations or lead to correction of those misdoings. I don't know how you run a public interest analysis of the information without focusing on how useful is the information, what can it be used for by the public.

MR. JONES: Well, Justice Scalia, the stage of the discussion that you're addressing isn't reached in this case because this is a redaction case. What you are describing is the situation where the redaction doesn't solve the problem; it doesn't provide a workable rule because, as in Reporters Committee, redaction would not protect privacy because they sought specific records. And in that situation, you do have little choice but to either apply an ad hoc balancing or a categorical rule based upon general likelihoods of the balancing of the interests.

We don't have that kind of disclosure problem because we have a redaction case, just like Rose was, and precisely of the type that Congress understood would exist in which the intended result is you redact the private information. You disclose everything else; you don't have to do an ad hoc balancing.

QUESTION: I must say that I don't see the distinction you're drawing between redaction and refusal to disclose the document in its entirety. You are saying there's a different test for whether you can refuse to turn over the whole document than there is for refusing to turn over portions of the document?

MR. JONES: Yes, sir. As I mentioned at the outset, Congress anticipated an accommodation under which neither interest is abrogated or substantially subordinated, that is implemented at the first stage by protection of the private information, as the Court did in Rose.

If privacy -- if there's not a possibility of a mutual accommodation because of the nature of the request, as when you ask for the personal -- when you ask for the records about a named individual, then it's necessary to go into the balancing problem that you've been describing.

The -- I'm sorry.

QUESTION: I don't understand this.

MR. JONES: Well, if I knew exactly how to help you, I certainly would, but --

(Laughter.)

MR. JONES: This Court has often stated that great nations should keep their words. We think this is such a case. The statutory method for accommodating the competing and equally important public and private interests is redaction of the private names, disclosure of the public information. We think the State Department properly accommodated those interests.

I would like to reserve the balance of my time for rebuttal.

QUESTION: Very well, Mr. Jones.

Mr. Ray, we'll hear from you.

ORAL ARGUMENT OF MICHAEL D. RAY ON BEHALF OF THE RESPONDENTS

MR. RAY: Mr. Chief Justice, and may it please the Court:

The preliminary question in a (b)(6) balancing test is, is the privacy interests, if any at stake, a substantial privacy interest. So I would like to take a second to look at the text of the actual reports in this case so we can see exactly how private these interviews were. And I submit to you that these interviews were not private but that they were totally public.

For example, these documents appear in the record below at entry 45. On page 80, quote, "Blank took embassy official to a large house near the village market, where large numbers of people soon gathered. As word spread of the presences, many returnees came forward to be interviewed."

Page 81, quote, "Several of the villagers suggested that embassy official next go to a community called Grand Paque several miles from Jean Dani. Once there, embassy official waited at a large house while several people went out to look for those known to be returnees. Within the hour, about 20 migrants had come forward to be interviewed. While interviewing the returnees, villagers of all ages gathered to stare at the unexpected event."

Page 90, quote, "Embassy official, department official, were escorted through the village by numerous children and directed to a small hut where the villagers gathered to stare at the visitors. Word was passed to known migrants, and they arrived from their work in the field after 20 minutes."

And the last one at 82, quote, "On the return to Jean Dani, several people stopped the embassy car to be interviewed. Three saw the car coming and crossed a large irrigation ditch to get to the car." End of quote.

This I submit shows a totally different picture from what the Government claims at page 7 in their reply brief, quote, "The inherently sensitive nature of the State Department's efforts to monitor human rights practices at Haiti provides undeniable justification for conducting these interviews in confidence." These interviews were not conducted in confidence. They were conducted out and open on the streets of these little villages and hamlets and mud-thatched houses where many, many people in those towns knew what was going on and knew who these people were.

It's also evident from the record that people in these villages knew who these people were when they left Haiti and when they came back and when they were interviewed. So I would submit that the privacy interests at stake in this case is as the district court found, de minimis. However, assuming that this Court finds that there is significant or substantial privacy interests, then I believe that this Court, in applying the balancing test, would certainly find that the public interest in disclosure far outweighs any privacy interests.

QUESTION: Mr. -- go ahead.

QUESTION: Do you think Judge Gibson correctly applied the balancing test in this case?

MR. RAY: Yes, I do.

QUESTION: I'll ask you the question I asked Mr. Jones. Do you think the Government has shifted its position at all between its original brief and its reply brief?

MR. RAY: I'm not sure what you mean by that question, so I'm not sure how to answer it. But to answer your previous question as to whether I believe -- whether the Government is abandoning the balancing test, I believe that they are. The Government alleges here that there is no public interest because names in and of themselves do not shed light on Government conduct, and therefore the Government, they claim, does not even have to address whether there is a privacy interest in this case.

I would submit that that is a suggestion that this Court abandon the balancing test. And --

QUESTION: Mr. Ray, I'm concerned about whether there is any limiting principle in the Eleventh Circuit's holding here. It reads as though any time there is an allegation that the requested information might lead to further knowledge about Government affairs, that that's enough. What do you think the limiting principle is under the Eleventh Circuit's holding?

MR. RAY: I believe that the Eleventh Circuit performed the balancing test here, and in doing so, the limits are, as in this case, when the Government uses the information that is requested for public purposes, then the public interest is heightened. And the specific uses in this case which the Government uses that information, these reports, are for -- what they have done already is they have interdicted 22,000 Haitians on the high seas, and they have used these reports specifically to send those people back to their country. They have used these reports to create advisory opinions in every Haitian's asylum claim in all the immigration courts throughout the United States. And they are still doing that today in 1991.

To say that if you are afraid to go back to your country because you fear you'll be mistreated for having left illegally, that claim is unfounded. However, as State Department official Eaves swore to the contrary. This information, he said, was old and outdated and of no value to an asylum claim.

I believe here this information that we request has been used in such public fashion that the public interest is so heightened above just any request whatsoever to monitor some Government conduct. Here this information is used daily in the courts, the Federal courts, in the immigration courts, in advisory opinion, to send Haitians back to their country, to deport them, to deny their asylum claims.

So that I believe is the -- are the factors that the Eleventh Circuit use in their balance to conclude that the public interests outweighed any privacy interests.

QUESTION: Well, so is the census data used daily in all sorts of contexts by Congress, by the executive branch, and so forth. And I suppose you could run the same argument, that you are entitled to double-check that the Government employees who collect all this census data were doing it correctly because this is enormously important information.

MR. RAY: But the Government I don't believe has not used the census information to send back 22,000 people on the high seas or to deport them or to deny their asylum claims.

QUESTION: Not for that particular purpose, but for other purposes that are just as important, such as deciding where Government funds will be allocated, where more poor people are located, where -- you know, all sorts of important matters. How do you distinguish the census material?

MR. RAY: I don't distinguish it. Perhaps that should be disclosed.

QUESTION: You think you would be able to get the tense of the census material, too?

MR. RAY: If they were equally as important, then the public interest and the balancing test would -- that is the workable formula that Congress intended that has worked fine ever since 1966 when the Freedom of Information Act was enacted.

QUESTION: Because it's important that you be able to double-check the Government?

MR. RAY: It's important to know whether or not these people are being mistreated and that asylum claims are being decided fairly. And then when 22,000 people are stopped on the high seas, that they are being sent back for reasons that are true and correct.

QUESTION: So you have to double-check -- the public has the right to double-check the work that the Government has done in assembling any information that is important information?

MR. RAY: Not any information. But in this particular case, we have to double-check because the Government has abandoned its interview program specifically because it's said it's too costly and time consuming.

QUESTION: Mr. Ray, on that point, isn't that apparent from the text of the documents that have been provided to you, even if you don't know the names of the people who were involved?

MR. RAY: No, it's not because as the Eleventh Circuit said, there's also a great public interest in knowing whether or not the Government is telling the truth about fulfilling its obligations.

QUESTION: Well, if you make two assumptions, one, that the Government is telling the truth, and secondly, that you don't really have an opportunity to interview -- re-interview these people, will the names add anything at all to your knowledge about what the Government is doing?

MR. RAY: Yes. Under the law, under the Freedom of Information Act, even if we find out that the Government is telling the truth, we still have a right to that information, to determine for ourselves.

QUESTION: In other words, your entire purpose is to verify the accuracy of the information and to -- also to re-interview to find out if they would have had a different result if they had conducted additional interviews?

MR. RAY: Well, no. That is the public interest in this case. However, I have other purposes myself for use of this information in immigration proceedings in the immigration courts of this country. However, what you stated is correctly, I believe, the public benefits to the release of this information.

QUESTION: Mr. Ray, if you could make the same argument you're making about the Government's preparation of affidavits for search warrants, that you want to go around and make sure the Government is truthfully quoting these people who are supplying probable cause. Perhaps that's all perfectly consistent what you are saying. But it would be quite an expansion of the Freedom of Information Act.

MR. RAY: I'm sorry. I'm not sure I understand what you're saying. It would be an expansion of the Freedom of Information Act?

QUESTION: Yes. I don't think it's been used for that purpose before, anymore than it's been used for the purpose that you are now trying to use it.

MR. RAY: Well, there have been many cases where names have been released, specifically in reference to the release for monitoring Government compliance. And one example is Justice Scalia's opinion in Arieff case where he stated that the core of the Freedom of the Information Act is to monitor Government compliance.

We tried to get other names in this case on our own, apart from these 582 persons that the Government had alleged to have interviewed upon their return. I have filed requests for seven or eight boatloads, names and addresses and other identifying information, of Haitians who were interdicted on the high seas. And the Government has refused to provide that information. So I can't go in another way to find out that information.

And people who were stopped on the high seas -- it's ironic -- the Haitians who were stopped on the boats specifically are not promised any confidentiality whatsoever in spite of about a 7-year effort by the United Nations to attempt to get Immigration to promise these people confidentiality.

Yet, in those cases, and they are both -- well, one is on appeal now because the Government has asked for a stay in the Eleventh Circuit and it was granted because the Government argued that the issues are identical, even though no confidentiality was promised. And that case is Ray v. Immigration & Naturalization Service, 89-288 Civil, Judge Ryskamp.

And there's another case where two other boatloads of names and addressees were requested where no confidentiality was promised. And that is still pending, and that is 90-1721, Civil, Judge Davis. And these are both in the Southern District of Florida in the U.S. district court.

So the issue, I think, which that shows is that the Government is really trying to argue is not to protect confidentiality and privacy, but rather to protect their own confidentiality. And the Freedom of Information Act only is designed to protect individual privacy, and not Government privacy.

I think it is important to point out also that the only evidence in the record to show the privacy interests at stake here are the declarations of three State Department employees. And the first one by a Mr. Eaves specifically states that the release of the requested information in this case would cause possible embarrassment.

Would cause possible embarrassment does not meet the burden of proof under Exemption (b)(6) which requires what would result would be a clearly unwarranted invasion of privacy. The other two affidavits submitted do not even talk at all about personal privacy. They only address issues of foreign policy and national security. And as this Court has already ruled, those issues are no longer before this Court.

So even by the own Government's evidence presented in this case, they have not meant their burden of showing that the privacy interests, if any in this case, would constitute a clearly unwarranted invasion of privacy.

QUESTION: Well, the State Department commonly uses very gentle terms when referring to other regimes, do they not? So possible embarrassment in State Department terminology may be something that's really rather grave.

MR. RAY: Well, I think it's very important in the context of the Freedom of Information Act, especially because in the past, the Government has gone before Congress and has unsuccessfully attempted to have Congress write out the (b)(6) exemption requirement and to allow the Government to only have to show that a privacy interest could be infringed upon, rather than that it would be or clearly would be. And they were unsuccessful. And therefore, as this Court recognized in the Reporters Committee, there is a very distinct difference between Exemption 7(C) and (b)(6).

So I think in this context you have to look specifically at what the Government has proffered for their argument as to why they have met the burden. And they haven't met it here. It's just simply not met.

I believe the Government is trying to create a new exemption that does not exist under the law. The text of the Freedom of Information Act is very clear at 552, subsection (d), where it states, "This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." And there is no such --

QUESTION: Mr. Ray, do you agree with the Government that the criterion for withholding an entire document is different from the criterion for withholding a portion of it, for redacting? That there's a different test for the two?

MR. RAY: I don't believe so. I think in each case, you perform the balancing test after you determine that there is a privacy interest involved. You then look to see if there's a public interest. And you weigh and consider the two and decide which one outweighs the other, no matter whether it's a hole document or part of a document.

However, I do know that if a part of a document can be segregated -- it's nondisclosable -- then the Government has the duty to do that and disclose the part that is segregable.

And this Court has recognized also what the statute says. Many of the Justices here have recognized in prior decisions that unless Congress under the Freedom of Information Act has created a specific exemption, that this Court will not read one into the law, which the Government is asking them to do today.

Justice O'Connor recognized that in her dissent in the Abramson case. Justice Scalia recognized that in his dissent in the John Doe case, as well as Justice Blackmun in his majority opinion in that case. So there is no categorical exemption.

However, I would submit that even if this Court were to buy the Government's argument that there should be a new rule of derivative use, that we have met our burden of proof under that standard. Because contrary to the Government's assertion in its brief that the only information redacted here are the names, it is clear by looking at -- and that's in the last page of the rely brief -- it is clear by looking at the reports themselves that there are other factors, other information that has been deleted here as well, such as addresses and places where people lived.

Now, there is no indication from these reports that the Government ever went to any prisons to see if anyone were incarcerated as a result of having left their country illegally. If anyone were likely to have been persecuted, it would seem to me that the most likely place to look to find out whether they were persecuted or not, would be in a jail.

And in fact, Chief Judge James Lawrence King in the Southern District of Florida, in the case of HRC v. Civiletti, 503 F.Supp. 442, the Southern District of Florida in 1980, recognized specifically in that case there was much evidence presented of the State Department's manner of interviewing returnees. But the fact that the State Department did not check with prisons made their methods fatally inadequate. And I would suggest that that's another factor here which shows why there is such a large public interest in obtaining these names, so that we can verify the fate of these returnees. Because the Government has not done so.

QUESTION: Let me interrupt there because I want to be sure I understand your argument. Is it not apparent from the face of the document that you've examined that they did not interview anyone in prison?

MR. RAY: I cannot tell that because at some points there are several pages that are left blank, and I have no idea what is included in there. There are other places specifically where I can tell for sure that what has been omitted are names of addresses and places. If you want any examples, I have them all here. But it's in there.

If you look at those documents, they have left out other information, such as names -- other than names, such as addresses and names of towns. And I have no idea what they have left out. Page 20 of those documents at record reference 4520, 21, 22, 23 and 19. The whole pages are empty. Who knows what was left out? We're just asked to take the Government at its word.

The affidavit by I believe Mr. Melton of the State Department, when he says conditions have so changed in Haiti that these reports are no longer of any value, well, then why did the State Department stop following up and checking to find out what the fate of these returnees is? And since they don't know, then how can they send advisory opinions to the immigration courts today in 1991, like you'll see in the respondent's brief in appendix 1a saying that we know these people don't have any fear that they are going to be mistreated when they go back because we did interviews in 1982 and '83. How would they know? It's just simply not possible.

So the Government has not done an effective follow-up. We are here. We are the follow-up program. We are the only way to determine whether these people's fate is as the Government states. And whether the Government is telling the truth or not, we certainly have cause to question that, and we certainly have the right under the Freedom of Information Act to find that out.

I would just state also that when the persons who are not promised not confidentiality aboard the interdicted vessels are brought back to Haiti, their names aren't protected in confidence. In fact, the record shows that when they are sent back to the dock in Haiti, their names are given on 11 lists to the Haitian authorities. And immediately after that, an embassy official sits in on interviews with these individuals with the Haitian police, the Haitian Red Cross, the Haitian military, and the Haitian executive department.

I submit that that's further evidence that what the Government's interest here is is not interest in protecting the privacy of these individuals.

And also if it's true as the Government states that not one of these people -- or I've heard now that perhaps there was one who was mistreated -- if no one was mistreated, then why on earth would they be afraid to come forward and admit what they said previously? And not only that, they could always say no. They don't have to talk to use if they don't want to.

But all we're asking for is the same information that has already been given to the Haitian police and the Haitian military and the Haitian Red Cross and the Haitian executive. We're asking for names that have already been given to the only people, if there are any, who likely would be persecutors.

There is no means to verify this claim. There is no other avenue where we can go to find out by some other means whether this is true or not. The Government states in its brief that cooperation with the United States is not often liked and these people might be treated if the -- oh, I'm sorry -- if the Government finds out they spoke to them.

Well, again, I would just submit that if no one was mistreated as the Government says, then I would think the Government of Haiti would honor these people and praise them for being such positive supporters of the government.

QUESTION: Mr. Ray, let me be sure I understand the point you are making about the Haitian police and the Haitian executive have all of this information. You say they have all these names? Are there some reports that indicate they were present during interviews? I didn't quite understand what the argument was.

MR. RAY: The Haitian military, Red Cross, police, and executive have the names of the 22,000 Haitians who were brought back on the boats. And the Government has admitted that the 582 people they interviewed, that the names of those people were obtained from these interdiction lists.

QUESTION: But we don't have any reason to believe that the Government of Haiti knows which one of the 500-some odd were interviewed?

MR. RAY: Well, we do, I believe, based on the fact of the manner in which these interviews were conducted totally out in the open, in the hamlets and in the villages, where these interviews were done so publicly that many, many people in those villages know who they are and it's no secret.

One other important thing is that one of the documents released in this case, it's called a fact sheet, and it's for use as far as telling interviewers how to question these interviewees. And one of the things that it states in there is be sure and ask these people whether or not they have been treated by, quote, unquote, "the civilian militia."

Now the Government has admitted in its brief that the Tonton Macoutes, the secret policy in Haiti, were at the time of Duvalier, the relevant time to this case, that they were the civilian enforcers of the law. So the interviewers have been instructed to specifically ask these people if they have been mistreated by the civilian enforcers of the law. This is in the fact sheet, the guidelines.

However, if you look at the actual reports themselves, I believe I found in only one place any reflection that anybody was ever asked if they were mistreated by anyone other than government officials. And that is another basis, I would submit, to show how unreliable these studies are. Because the people who are most likely to mistreat these individuals, if anyone, are the civilian enforcers of the law, as the Government has recognized. So there's no question about that. However, the Government -- there's no evidence that they even bothered to ask these people if they were mistreated by these persons. Yet they ask the Court to take their word. They ask the American public to take their word.

And many, many of these documents show that a large scheme of the State Department is to disseminate these results to the public, to the media, even to Congress. And these documents, if you look at them, specifically state that in great detail how they have a need to target audiences in Miami and Washington and in New York where there are many Haitians, in order to dispel the notion in their minds that when Haitians return to Haiti, they are going to be mistreated.

And the same documents which state the Government's need to inform the people in these areas, state that they know that these conceptions are not true because the State Department has done these interviews. Again, for all the reasons that I've submitted, these interviews are just not accurate.

And again, we don't have to prove the Government's wrong here, or that they are not telling the truth. We have just shown -- I hope I have shown to you -- how important these public interests are and how many questions there -- that have been raised by the Government's own reports as to whether or not their conclusions really are true.

It is true that -- I don't remember the exact quote -- something like, great nations like great men must be able to be taken at their word, and I believe that also applies to our State Department, because we are talking here not about one person's case or one person's right; we're talking about perhaps the fate of the 22,000 people who were stopped on the high seas who have been sent back. And there is evidence that shows that they were sent back specifically because of these studies and the alleged results of these interviews.

The Government also claims in the reply brief, page 7, that they are afraid the authorities will get the names of these returnees. Well, they already have the names of the 22,000. And I would submit that for all the reasons already shown about how public these interviews were, that it's no secret who these people were.

Also, the Government talks over and over about the pledge of confidentiality, the promise of confidentiality. Again, the only evidence are the three affidavits. When you read each of those three affidavits, they use practically the same language, that there was an understanding of confidentiality. What was that understanding? I don't know. When you read the individual reports themselves, nowhere in there does it say how this confidentiality promise came about.

I believe it was The Washington Post case which said -- versus The State Department that said a mere promise of confidentiality cannot be something just to hide information behind. There is nothing in the text of these reports which gives any indication of why confidentiality was promised or that anyone specifically asked for it. There may have been one person that asked for it. I don't want --

QUESTION: Was this the basis for the Ninth Circuit's decision, that there hadn't been any commitment on confidentiality?

MR. RAY: Which decision are you referring to?

QUESTION: Was the basis for the decision of the court below -- Eleventh Circuit, I'm sorry -- was the basis for the decision that there had not been a pledge of confidentiality?

MR. RAY: No. In fact, I believe the Eleventh Circuit says that they took note of the claim that the Government had promised confidentiality.

QUESTION: And they accepted that as being true?

MR. RAY: They accepted that.

QUESTION: Well, I don't think that we are going to go back and review whether there was or wasn't. We are probably going to decide on the basis that they did. Did they disbelieve the Government's assertions about the possibility of these individuals being persecuted by Haiti?

MR. RAY: I don't believe they disbelieved it, but they felt that the -- they stated specifically that they felt that the question as to whether or not the Government's conclusion to the contrary was true or not was certainly or great or significant public interest, and that the release of the names and other identifying matter in this case would lead to the truth in that matter.

QUESTION: Did they disbelieve that the interviews were at least private? I mean, did they rely on the fact that the interviews had been conducted in the open, as you say they were?

MR. RAY: I don't believe they ever mention that anywhere in their opinion. However, if you look at the actual reports themselves, you can see that very readily, practically on every page.

I guess I've pretty well said everything, and I would just ask this Court to affirm the decision of the Eleventh Circuit below.

Thank you.

QUESTION: Thank you, Mr. Ray.

Mr. Jones, do you have rebuttal?

REBUTTAL ARGUMENT OF KENT L. JONES ON BEHALF OF THE PLAINTIFF

MR. JONES: Just one item. There is a suggestion by respondents that there is only a minimal privacy interest involved here, and I just want to point out that the court of appeals found the privacy interest at issue here to be quite significant, but --

QUESTION: (Inaudible).

MR. JONES: -- But apparently on an ad hoc basis, did not think it was significant enough here.

QUESTION: Mr. Jones, would you comment on your opponent's argument that the 22,000 names are available and therefore, unless one of these reports described mistreatment, there really isn't much concern about the identity getting back to the Haitian Government, as I understand it. They already know the names of these people and they certainly wouldn't be upset if somebody was interviewed and said we didn't get mistreated. That's what I guess all these people said.

Is there an interest in keeping this information from the Government of Haiti? If so, what is it?

MR. JONES: Separate and apart from the personal interest in the privacy associated with the intimate detail, is there an interest in protecting this information from the Haitians?

QUESTION: Right.

MR. JONES: Keeping the information from the public including the Haitian Government? Yes, there is. There are two parts to your question. What is this 22,000 and 500? Twenty-two thousand is simply everybody that's been returned. That doesn't tell anything.

QUESTION: So they of course know who those people are.

MR. JONES: They certainly do, just as we would now who's returned on our shores.

QUESTION: And the concern about mistreatment would be that if you had fled the country and tried to get over here, you might be disloyal, and so forth, to Haiti?

MR. JONES: The purpose of the interviews was simply to find out whether they were being mistreated. And the reason we wanted to find out was because we have an undertaking under United Nations' protocols to allow refugee status to people who, if returned, would be mistreated.

So that was the basis for our inquiry. The Haitian Government would have no basis for knowing who we spoke to. The court of appeals specifically concluded that the information was held confidential by the State Department. The --

QUESTION: If you only gave the names of those who provided -- all of the reports show that they weren't mistreated?

MR. JONES: There was one reported, confirmed instance of mistreatment.

QUESTION: So you could withhold that name, I guess, and provide the others.

MR. JONES: Well, Your Honor, in addition to the private nature of the information, which exists with respect to all 500, we also believe that with respect to all 500 there is an undeniable wisdom in the caution that he State Department exercises in conducting these interviews in a confidential matter, because we cannot guarantee the safety or assure that a composition of future governments in Haiti or in other countries. And --

QUESTION: What do you say about the allegation that the interviews were not conducted in a confidential manner?

MR. JONES: Well, I would say that there are two courts below that have found to the contrary. And I would also suggest that there's evidence in the record that we've supplied, in addition to the three affidavits, which of course are rather substantial evidence. There is additional evidence which supports that.

QUESTION: What you were saying a moment ago, if I understand it, was that if you cannot assure confidentiality, the ones who would describe mistreatment will never talk to you.

MR. JONES Well, that is -- it is a prudential consideration of the Department that to obtain cooperation in foreign affairs, we need to be able to have reliable assurances of confidentiality. But what I'm talking about also is the fact that we can't protect these people, we can't predict what future governments' reactions may be about their voluntary cooperation with the United States.

In the 1974 amendment in the conference committee report on the 1974 amendments -- to FOIA, the committee talks about the unique insight that the State Department has in matters respecting confidentiality in matters concerning foreign affairs.

This is a unique insight based upon, I suppose, centuries of concern about the need to protect confidentiality in foreign interviews conducted on foreign soil. We think that is an important part of the privacy component, but notwithstanding that, there is the inherent private nature of the details of the individuals' lives, which is itself sufficient under FOIA litigation.

If there are no further questions, I am finished.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Jones.

The case is submitted.

(Whereupon, at 12:02 p.m., the case in the above-entitled matter was submitted.)