Schrecker v. Department of Justice
- Brief of Amici Curiae (06/24/2003)
This FOIA case was brought by Professor Ellen Schrecker, who sought records on individuals investigated by the Justice Department during the McCarthy era. The FBI disclosed some records but withheld numerous names based on personal privacy. The key issue in the case was whether the names should be released because any personal privacy interest had expired or was diminished by death of the individuals. When the case was first before the court of appeals, 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 whether the individuals were still alive.
On remand, the district court accepted the FBI's argument that the agency appropriately determined whether names in the records should be withheld based on a "100-year rule." Under this rule, if a birth-date appeared within the document and indicated 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 appeared in the document, then the FBI might consult the Social Security Death Index to determine if the individual's death was reported there. If neither the birth date nor a social security number appeared in the responsive document, the FBI would presume that the person was still alive, unless it had "institutional knowledge" of the individual's death or the individual was listed in the publication Who Was Who. The FBI refused to consult other files to determine whether evidence that the person was deceased appeared in other records.
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, filed an amicus curiae brief to urge the D.C. Circuit Court of Appeals to reject the Department's 100-year rule as irrational, and to 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. The court, however, held that the FBI’s approach was reasonable.