When it comes to the federal government's rationale for not producing information to answer inquiries citing the Freedom of Information Act, the recent case of Davis v. Department of Justice falls under the "you gotta be kidding" category.

So, let's dig in a bit. The case centered around four audiotapes recorded more than 25 years ago as part of an FBI investigation in Louisiana. An author, who is the plaintiff in the case, sought release of the tapes under the Freedom of Information Act, or FOIA, as it's more generally known. There were two apparent speakers on the tapes. One was a "prominent individual" who was the subject of the FBI investigation. The other was an undercover informant.

The Freedom of Information Act requires the federal government to produce information upon request with respect to its activities unless the requested information falls within one or more exemptions explicitly provided in the statute.

One exemption allows law enforcement to refuse to release records if that could reasonably be expected to constitute an unwarranted invasion of personal privacy. Under relevant case law, an agency deciding whether a particular release of information constitutes an unwarranted invasion of privacy must balance the privacy interest at stake against the public interest in disclosure.

The FBI withheld production of the requested tapes, arguing that it had not been able to determine whether the speakers on the tapes were still living, and thus were entitled to have their privacy protected. FOIA case law holds that a person no longer has the same privacy rights upon his or her death.

In its judgment, the federal appellate court in Washington, D.C., determined that the sole issue on appeal in the case was whether the FBI had undertaken "reasonable steps" to determine whether the speakers are now dead. In that case, the court said, even the privacy interests weighing against release would be diminished.

The FBI could not figure out whether the speakers were over 100 years old--and thus presumed dead under FBI practice--because neither had mentioned their birth dates during conversations that were recorded surreptitiously.

The agency also took the position that it could not conclude whether the speakers were alive or dead by referencing a Social Security database. The reason? The speakers did not state their Social Security numbers during the recorded conversations.

Furthermore, the FBI failed to search its own files for the speakers' birth dates or Social Security numbers, simply because that is not its standard practice.

Finally, the FBI did not try any other methods of finding out if the speakers were alive or dead, such as conducting Google searches.

The appellate court not surprisingly determined that the FBI had not made reasonable efforts to ascertain whether the two speakers, on whose behalf it invoked a FOIA privacy exemption, were alive. What's more, the court said it had serious questions as to whether the FBI provided a reasonable response to the request.

The case was remanded back to the trial court. The government bears the burden of invoking exemptions when refusing to produce information pursuant to FOIA requests. Hopefully the trial court will order the FBI to do proper due diligence in this case, consistent with the appellate court ruling.

The words of the appellate court ring oh so true:

"Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a 'reasonable alternative' for finding out whether a prominent person is dead is to use Google (or any other search engine), to find a report of that person's death."

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission from CNET News.com.