From the News column of the January 2004 Perspectives

Court Decides Schrecker FOIA Case

Bruce Craig, January 2004

On November 18, 2003, the D.C. Circuit Court of Appeals issued its decision on a case filed by Public Citizen Litigation Group on behalf of Yeshiva University history professor Ellen Schrecker. The court decided against Schrecker and affirmed that in Freedom of Information Act (FOIA) requests, while the privacy interest requiring nondisclosure of "identifying information may be diminished where the individual is deceased," the government's existing method for determining life status is adequate.

The case centers on a FOIA request made by Professor Schrecker to the Department of Justice's Federal Bureau of Investigation, seeking information on two individuals—Gerhart Eisler and Clinton Jencks—both of whom were subjects of investigation by the FBI during the McCarthy era. The bureau withheld names from those files asserting the personal privacy exemption. The key issue litigated was whether names in documents should be released, and whether privacy concerns have expired or diminished over time due to the probable death of the anonymous persons who are mentioned in the subject files.

In June 2003, an amici curiae brief was filed on Schrecker's behalf by the National Coalition for History, the American Historical Association, the American Studies Association, the Society of American Historians, the Association for Documentary Editing, the Organization of American Historians, and the Reporters Committee for Freedom of the Press (see http://www.citizen.org/documents/SchreckerAmicusBrief.pdf for details). The brief argued two central points. First, that the FBI "improperly" presumed that individuals named in 50-year-old records were still alive. Second, that the bureau's practice of withholding names unless there is proof that an individual is dead or was born more than 100 years ago has no basis in law. The court considered these arguments in its decision, but ultimately ruled that the government had properly balanced public and privacy interests in withholding personal information.

For practical purposes, the case means that the government will continue to presume that a person named in a document sought by a researcher under FOIA is alive (and hence the name will be redacted in requested documents) unless 100 years has elapsed since that person's birth and provided that the individual's birth date is reflected somewhere in the sought-after document (a rare occurrence indeed), or unless other documentation providing proof of death is provided by researchers. The ruling means that researchers filing FOIA requests continue to bear the burden of proof to provide convincing documentation that an individual is dead. For the court's decision visit http://laws.findlaw.com/dc/025317a.html.

—Bruce Craig