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07/29/88 New York Times Company, v. National Aeronautics and

July 29, 1988





Appeal from the United States District Court for the District of Columbia, Civil Action No. 86-02860.


Robinson, Edwards, and Douglas H. Ginsburg, Circuit Judges. Dissenting Opinion filed by Circuit Judge Douglas H. Ginsburg.


The question confronting us is whether a tape of voice communications aboard space shuttle Challenger during its final ill-fated flight is subject to mandatory public disclosure pursuant to the Freedom of Information Act . *fn1 The District Court rejected a claim of statutory exemption and ordered release of the tape. We affirm. I

On January 28, 1986, Challenger self-destructed seventy-three seconds after liftoff, and all seven astronauts aboard were killed. Public interest in this lamentable event was intense, and media coverage was extensive. Eventually, the New York Times (the Times), invoking FOIA, requested the National Aeronautics and Space Administration to furnish "transcripts of all voice and data communications recorded aboard the space shuttle Challenger" on the day of the tragedy, and, as well, copies of voice communications tapes. *fn2 NASA provided the Times with a written transcript of the only voice recording that was made, *fn3 but, relying exclusively upon FOIA's Exemption 6, *fn4 refused to supply a copy of the tape itself. *fn5 NASA asserted that release of the tape would encroach upon the personal privacy of the astronauts' families by subjecting them to replay of the voices of their loved ones, "an intrusion on their grief which certainly would exacerbate feelings of hurt and loss." *fn6 An administrative appeal by the Times was denied, again on the basis of Exemption 6. *fn7

The Times then sued in the District Court for release of the voice communications tape. *fn8 On cross-motions for summary judgment, the court ordered disclosure. *fn9 Since the voice recording contained no personal information about the astronauts or their families, the court reasoned that it was not a "similar" file within the meaning of Exemption 6. *fn10 II

By virtue of Exemption 6, FOIA's disclosure requirement does not apply to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." *fn11 The analysis involves two steps. The threshold question is whether the material at issue is contained in a personnel, medical, or similar file. *fn12 If it is, the court must then balance the individual and governmental interests involved in order to determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy. *fn13 Because the District Court held that Challenger's voice tape did not satisfy the threshold requirement, it never reached the second stage of the test. *fn14

NASA contends that the District Court erred in concluding that the voice tape contained no personal information about the astronauts and for that reason was not a similar file. *fn15 NASA argues that the human voice, being unique to each individual, "clearly is information about the individual and identifiable as such." *fn16 In other words, NASA theorizes that the characteristics placing this tape within the similar-files category of Exemption 6 are "the sound and inflection of [the astronauts'] voices." *fn17 Accordingly, NASA presses us to hold that the recording is a similar file, and to remand the case for the District Court's determination of whether its release would cause a clearly unwarranted invasion of personal privacy.

According to the Times, "[t]he language and legislative history of Exemption 6 shows that the 'similar files' requirement draws a critical distinction between records containing 'personal information' and records that document only official government activity." *fn18 Consequently, the Times urges us to focus on the content of the tape, not on the fact that the information is communicated in verbal rather than written form. Because the words gathered on the tape relate only to Challenger's launch and therefore are non-personal, the Times argues that the tape is not a "similar" file, and so must be disclosed.

This is an atypical FOIA case. At issue is a voice recording, a transcript of which has already been released by NASA. It is undisputed that the tape reflects nothing concerning the personal lives of the astronauts or members of their families, and that the words spoken pertain only to the launch. *fn19 Furthermore, NASA admits that inflections of the astronauts' voices do not reveal any appreciable information not available through the transcript: *fn20

The declarations submitted by NASA indicate that the voices of the astronauts in this case do not convey any significant information beyond the words spoken, but that does not detract from the personal quality of the voices, and their identifiability with particular persons, which is alone sufficient to satisfy the "similar files" requirement of Exemption 6. *fn21

Thus, NASA's Exemption 6 claim arises, not because of the information recorded on the tape, but rather because that information is conveyed orally. We thus must decide whether the sound of the human voice communicating non-personal information will alone raise the tape to the level of a "similar" file for purposes of Exemption 6. III

For guidance in construing the phrase "similar files" in Exemption 6, we must look, as the District Court did, to the Supreme Court's decision in Department of State v. Washington Post Co. *fn22 There the Court held that records reputedly establishing the citizenship status of two Iranians living in Iran would constitute similar files. *fn23 This court previously had interpreted "similar files" as including only agency records containing information as personal or intimate in nature as that found in personnel or medical files. *fn24 Drawing on legislative history, however, the Supreme Court concluded that Congress did not intend to limit "similar files" "to a narrow class of files containing only a discrete kind of personal information." *fn25 On the contrary, the Court said,

[t]he House and Senate Reports, although not defining the phrase "similar files," suggest that Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information. After referring to the "great quantities of [Federal Government] files containing intimate details about millions of citizens," the House Report explains that the exemption is "general" in nature and seeks to protect individuals. . . . *fn26

Accordingly, the Court explained, "Congress' statements that it was creating a 'general exemption' for information contained in 'great quantities of files' . . . suggest that the phrase 'similar files' was to have a broad, rather than a narrow, meaning." *fn27 Thus the Court made clear that a record need not contain highly personal information or intimate details in order to be a similar file for purposes of Exemption 6.

The Court, however, did not discard the threshold test of similarity entirely. Indeed, the Court stated specifically that its decision should not be taken as an evisceration ...

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