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Opening Up Historical Records

Public Citizen Litigation Group is involved in FOIA litigation challenging the government's practice of withholding the names of individuals mentioned in historical records on privacy grounds, even when the age of the records indicates that it is unlikely that any of the individuals mentioned are still alive. The Department of Justice recognizes that in most cases FOIA's personal privacy interests cannot be invoked to withhold information identifying persons who are deceased. See DOJ, FOIA Update, Vol. III, No. 4, September 1982. However, access to significant historical information continues to be limited because the government generally presumes that individuals are alive and maintains that it has little or no obligation to support this presumption or investigate whether a person is deceased when it withholds information under the FOIA.

Schrecker v. Department of Justice

D.C. Cir. Appeal No. 02-5317

This case involves a FOIA request by History Professor Ellen Schrecker, who is seeking records on individuals investigated by the Justice Department during the McCarthy era. The FBI has withheld numerous names from the files based on personal privacy, and the key issue is whether these names should be released because any personal privacy interest has expired or is diminished by death of the individuals. The case was before the Court of Appeals in 2001, and the Court sent it back to the district court because the FBI had not presented sufficient evidence about what steps had been taken to determine if the individuals were still alive. (Click here for Court of Appeals Decision in first appeal )

On remand, the district court accepted the FBI's argument that it was appropriate for the agency to determine whether names in the records should be withheld based on a "100-year rule." Under this rule, if a birth-date appears within the document that is being reviewed and the birth date indicates that the person was born more than 100 years ago, then the individual's name and other identifying information were released. If a social security number appears in the responsive document, then the FBI might consult the Social Security Death Index to determine if an individual's death was reported there. If neither the birth date nor a social security number appears in the responsive document, the FBI would presume that the person is still alive unless it had "institutional knowledge" of an individual's death or an individual is listed in the publication Who Was Who. The FBI refused to consult other files to determine if social security numbers, birth dates, or evidence that the person was deceased appeared in records other than the ones being processed for release.

Public Citizen and a group of professional organizations, including the Reporters Committee for Freedom of the Press, the American Historical Association and the Organization of American Historians, have urged the Court of Appeals to reject the Department's 100-year rule as irrational, and hold that an agency should release the names of individuals when the age of the records indicates that it is likely that the individuals discussed in the records are deceased and the agency has no specific evidence to the contrary.

Adams v. Department of Justice

District of Columbia District Court, 02-cv-00320-RMC

In this litigation, Public Citizen represented Daniel Adams in his efforts to obtain records of the FBI's investigation into the death of FBI agent Paul Reynolds in 1929. Paul Reynolds' death is listed as the only unsolved murder of an active FBI agent, but Adams found evidence that Reynolds may not have been murdered at all.

The FBI withheld most of the names mentioned in the investigative file on the basis that the personal privacy of the individuals mention would be violated by disclosure -- even though there is very little chance that anyone mentioned in this 1929 case is still alive. After 13 months of litigation, the FBI relented and released all of the names and identifying information in the files.

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