Striking the Balance with Third-party Requests

by cmcguire, posted in FOIA Exemptions

FOIA requests for third-party information present a difficult balancing act for Federal agencies. On Tuesday January 24, OGIS and the Department of Justice’s Office of Information Policy (OIP) hosted a Requester Roundtable to discuss issues that arise from third-party requests. If you couldn’t make it, we’re here to share some tips.

When considering third-party requests, it is important to get the balance right. Photograph of three San Francisco Mint employees with the bullion balance scales (ARC identifier 296564)

When a requester asks an agency for records about someone else, the agency must balance an individual’s right to privacy with the public’s right to know about the operations of the Federal government. While it is a balancing act, it’s a necessary one; if the government identifies an individual’s right to privacy in the requested records then it shouldn’t release those records unless the release is “warranted” due to a countervailing public interest in the disclosure. Of course, the starting point – even before the balancing – is whether there is a privacy interest at all.  For example, high-level government officials are considered to have less of a right to privacy (at least in terms of their work) than private citizens.

In terms of FOIA, third-party requests are considered under exemptions 6 and 7(C). Third-party requests also may invoke what is colloquially known as a “Glomar” response (the history of which is a topic of another day’s blog), which allows an agency to neither confirm nor deny the existence of records. OGIS Director Miriam Nisbet shared an example of how the exemptions and a Glomar response might interact: if you request the background investigation report of a high-level government official, you can expect that some parts of it will be redacted under exemption 6 (and possibly 7(C), yikes!). However, if you request information about whether a high-level government official has sought counseling from the agency’s Employee Assistance Program, you likely will receive a Glomar response.

Tips for agencies:

  • If your agency automatically Glomars certain types of searches (such as those within specific records systems, or for types of records such as terrorist watch lists), consider publicizing this fact so that requesters know what to expect.
  • If in processing a third-party request, an agency bifurcates (or in other words, separates) the file as in the above example, the agency’s response should state that certain records fall under certain exemptions and as to any other requested records, it will neither confirm nor deny their existence.
  • If requesters fail to make the case for a third-party’s public figure status, consider indicating in your response what kind of information may be helpful in reconsidering that request.

Tips for requesters:

  • When establishing a claim for a third party’s public figure status, do not assume that the agency’s FOIA staff will be able to take the time to research your subject. Include as much information as you can.
  • The same can be said for establishing the link between the subject and the public’s right to know about the operations of the Federal government.
  • Even if you suspect that requested records will be exempt or Glomarized, make the request anyway! Things change and you just might be surprised.