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HMG MKTG. ASSOCS. v. FREEMAN

December 22, 1980

HMG MARKETING ASSOCIATES, Plaintiff,
v.
ROWLAND G. FREEMAN, III AS ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, Defendant



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

CONSTANCE BAKER MOTLEY, D.J.

 The parties have filed cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, this court denies plaintiff's (HMG Marketing Associates (HMG)) motion and grants defendant's (General Services Administration (GSA)) motion for summary judgment.

 FACTS

 In November, 1979, GSA issued a news release entitled "Historic Carson City Silver Dollars to be Sold in 1980," which notified the public that GSA intended to sell one million silver dollars. This release also advised the public that order forms and additional information would be available upon request. GSA received over 600,000 postcards and letters in response. The postcards and letters were used to prepare a computerized "Mailing List" to assist in forwarding the requested materials. *fn1" HGM does not controvert GSA's assertion that "over 99% of the names and addresses are clearly identifiable as those of individuals and not commercial entities." (Plaintiff's Affidavit of Peggy Lowndes at para. 5).

 On January 4, 1980, HMG sought disclosure of the Mailing List pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. By its own admission, HMG is in the business of "direct mail advertising" which involved "the sending of unsolicited advertising materials to individuals for the purpose of selling merchandise and services." (Plaintiff's Answer to Defendant's Interrogatories, #5; Defendant's Exhibit D at pg. 3). GSA denied HGM's request for disclosure of the mailing list on January 29, 1980, citing Exemption 6 of the FOIA, which reads in pertinent part:

 
(b) This section does not apply to matters that are --
 
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

 5 U.S.C. § 552(b)(6).

 HMG appealed the denial of its request on February 12, 1980. GSA affirmed the denial by a letter from its Assistant Administrator, Mr. Ray Kline, dated March 26, 1980. HGM then instituted this action pursuant to 5 U.S.C. § 552(a)(4)(B) to obtain a mandatory injunction requiring GSA to release the Mailing List and requesting this court to assess costs and reasonable attorneys' fees against GSA.

 DISCUSSION

 The FOIA's primary purpose is to increase public assess to government records. See Bristol-Myers Co. v. F.T.C., 138 U.S. App. D.C. 22, 424 F.2d 935, 938 (D.C.Cir. 1970). Congress intended to close "loopholes which allow agencies to deny legitimate information to the public." S.Rep.No.813, 89th Cong., 1st. Sess. 3 (1965). The portion of the FOIA conferring jurisdiction on the federal courts to review agency decisions regarding disclosure specifically states that "the burden is on the agency" to defend a decision withholding information. 5 U.S.C. § 552(a)(4)(B). Accordingly, the various enumerated exemptions to disclosure contained in the FOIA are to be strictly construed. See Rose v. Department of the Air Force, 495 F.2d 261 (2d Cir. 1974), aff'd, 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976) (Rose). However, this court also notes that Congress realized the necessity of protecting "certain equally important rights of privacy with respect to certain information in government files, such as medical and personal records." Senate Report No. 813, 89th Cong., 1st Sess. 3 (1965).

 In Rose the Second Circuit described the application of Exemption 6 as follows:

 
Each case involves an essentially unique investigation into the nature of the privacy interest invaded and the extent of the proposed invasion, viewed in light ...

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