                                                                                October 17, 1977


78-87        MEMORANDUM OPINION FOR THE COUNSEL
             TO THE PRESIDENT

             Privacy—Persons Writing to the President— Freedom
             of Information Act (5 U.S.C. § 552e (1976))


    This responds to your request for our views as to the means available to
 protect the privacy of private persons who write to the President and whose
 letters are referred to the various Federal agencies for response.
    It is our position that the President and his immediate staff are not agencies or
 part of agencies within the meaning o f the Freedom o f Information Act (the
 Act), 5 U .S.C. § 552(e) (1976) and thus private letters addressed to the
 President are not agency records subject to the Freedom of Information Act so
 long as they are maintained by the President or his staff. See Attorney G eneral’s
  1974 Freedom of Information Amendments Memorandum at 25. However,
 when such letters are referred to other Federal agencies for reply they will, in
 the absence of some special arrangement, become agency records subject to the
 Act. As we understand it, your view is that persons who write to the President
ought to be able to do so confidentially and that it would be an invasion of
privacy to make their identity publicly available. There are several methods by
 which their privacy can be maintained.
    1. D em onstrable Bailm ent. The ordinary presumption is that any record in
the possession of an agency regardless of its origin is an agency record subject
to the Act. However, the courts have recognized that the records originating in
governmental units not covered by the Act may expressly be “ loaned” to an
agency that is subject to the Act without becoming an agency record. Cook v.
Willingham, 400 F. (2d) 885 (10th Cir. 1968) (judicial presentencing report in
the hands of the Bureau of Prisons); G oland v. Central Intelligence Agency,
Civ. No. 76-166, D .D .C ., May 26, 1976 (Congressional Record lent to the
Central Intelligence A gency).1 A somewhat similar bailment technique is also
used by the Federal Bureau of Investigation and the Civil Service Com­
mission to retain such control as they may have over the public release of
certain investigatory records which they originate and subsequently disseminate

  'A ffirm ed by the District o f Colum bia Court o f A ppeals, May 23, 1978.

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 to other Federal agencies; the records bear a printed legend that they are the
 property of the originating and not o f the holding agency.
    In our opinion, the President could probably use an express bailment,
 evidenced perhaps by a stamped legend on each letter, to reserve ownership and
 thus control over its release under the Act. (The reservation of ownership would
 be particularly credible if all or some are recalled by and returned to the White
 House after the agencies have prepared responses.) Nevertheless, such an
 express bailment technique would not be adequate in itself to protect the
 identity or privacy of private correspondents, because the replies generated by
 the agencies will ordinarily reveal the name and address of the correspondent
 and the general thrust of his inquiry, problem, or comment, and these
 replies— or rather their file copies— will be agency records subject to the Act.
 While it might be possible for the President to assert ownership of these file
copies also, such an assertion would be questionable, and a strong argument
could be made that they are agency records subject to the Act because they are
 generated and maintained by the originating agency in the ordinary course of
 agency business. Were the President to arrange that all agency copies of replies
 be physically delivered to him, he could, o f course, remove them from the
coverage o f the Act. This alternative, however, seems equally questionable and
also administratively unsound in that it would deprive agencies of copies of
their own correspondence and, depending upon the nature of the agency
 response, might violate the Federal Records Act in some circumstances. Pub.
 L. 90-620, 44 U .S.C . §§ 3101-3314 (1976).
    2.    Sanitizing R eferrals to the A gencies. When a private letter is referred to
an agency, the President could send the agency a copy of the letter from which
the name and address of the correspondent have been deleted and in which a
control num ber has been substituted. The agency would then draft a proposed
reply, using the code num ber o f the incoming correspondence, and send the
proposed reply to the White House where the identity o f the correspondent
would be decoded and the reply addressed, perhaps as reviewed and retyped on
White House letterhead. In this manner, the identity of the correspondent
would, in most cases, not be available in agency records and hence preserved
from disclosure under the Freedom o f Information Act.
   We see at least two disadvantages with this method. First, the effort required
to respond to private correspondence addressed to the President might be nearly
doubled, in that each reply would have to be handled twice— once by the
agency and then again in the W hite House. Second, in those cases where the
letter contains personal identifying information about the writer which the
agency will need in formulating a meaningful reply, such as a personal
complaint about obtaining social security or other Federal benefits or permits,
this proposed method simply would not work except at the price of precluding a
meaningful reply. Yet such letters may well be the ones most deserving both of
a responsive reply and of privacy protection because of the personal informa­
tion they may contain. In any case, substituting a code number for the w riter’s
name and address offers no privacy protection where the correspondent is
writing about the problems o f a relative or friend identified in the body of the
letter.
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  • 3. Reliance on the P rivacy Exemption in the Freedom o f Information A ct. In
 our view, the names and addresses o f private correspondents and other
 personally identifying data in letters to the President, after referral to agencies
 for reply, would usually be withholdable under the sixth exemption o f the
 Freedom of Information Act because disclosure would constitute a “ clearly
 unwarranted invasion o f personal privacy.” 5 U .S.C . § 552(b) (6) (1976): cf.,
 Wine H obby, U .S .A ., Inc. v. U nited States Bureau o f Alcohol, Tobacco, and
 Firearm s, 502 F.(2d) 133 (3d Cir. 1974). Almost all such letters either contain
 some personal information about the writer or a member o f his family, if not
 information about personal opinions which the writer chooses to communicate
 to the President but presumably not the the entire public.2 In the ordinary case,
a requester would have no justifiable interest in determining the identity of the
correspondents; any legitimate interest, such as attempting to determine the mix
of citizen correspondence addressed to the President, would be served by
 making available copies o f the letters which have been sanitized by deleting
names and other identifying inform ation.3 While one can reasonably anticipate
that a few requests will relate to matters which have a substantial public
 interest, and in which withholding of identifying information would be
 improper under the Act because the legitimate public interest in disclosure of
 identity outweighs the individual’s privacy, it seems to us that disclosure of
 identification in such rare cases would not be undesirable.
    To help assure uniform agency implementation of a decision to use the sixth
exemption to protect the privacy of correspondents, the President could proceed
either (a) by instructing all agencies to preserve from clearly unwarranted
invasions the privacy of individuals involved in correspondence referred from
the White House, by withholding the name and other identifying data if such
correspondence is to be made available in response to requests under the A ct,4
or (b) by requiring that such records be maintained in a “ system of records” as
defined in the Privacy Act. 5 U .S.C . § 552a (1976). In the second way, the
Privacy A ct’s sanctions for improper disclosure would buttress the protection
for the privacy of correspondents. However, such added protection, while
stronger than that afforded by a Presidential directive or agency policy
unsupported by sanctions, would be no greater in scope: The measure o f the
material that could be protected would still be the sixth exemption and in rare
instances identities might have to be released in the public interest. Moreover,
the use of the Privacy Act is unnecessarily cumbersome because it would


   2ln m any, and perhaps m ost, private letters to the President, there would seem to exist a public
interest elem ent which should reinforce, rather than counterbalance, the usually m inor invasions of
the w riters’ privacy. T his is the public interest, which has First Am endm ent overtones, in
protecting the right to petition the President without the chilling effect o f fear o f publicity. O f
course, where the writer is com m unicating on behalf o f an organization, privacy considerations
would rarely be applicable, and the mix o f public interest factors would be much more likely to call
for disclosure.
   3C /., Rose v. Air Force. 425 U .S. 352 (1976).
   “This m em orandum assum es that the Freedom o f Inform ation Act requests for private letters
addressed to the President will typically com e from requesters who do not know the identities of the
writers o f such letters. W here a request is for letters from named writers, privacy interests would
have to be protected by deleting privacy inform ation rather than identifying such information.
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require agencies which do not presently maintain their referred private
correspondence in a Privacy Act system of records to establish a new system of
records, thereby subjecting themselves to additional Privacy Act burdens. For
example, use o f the Privacy Act would often introduce complications >if the
agency to which the letter is referred finds it must contact another agency to
develop a meaningful reply. The use of a Presidential instruction with respect to
invoking the sixth exemption should suffice.
   Recom m endation. We believe that, for the reasons discussed above, the
privacy of those who write to the President can best be preserved through use of
some form of guidance to the agencies to which the correspondence is referred.
In effect, the agencies would be told or encouraged, when processing Freedom
of Information Act requests for such material to delete personal identifying
information from the letters and responses thereto as contemplated by the sixth
exemption of the Act. This method should be effective and impose a minimal
administrative burden on the agencies concerned. We would be glad to
participate in the drafting o f such guidance if it is determined to proceed along
these lines.

                                       R O B E R T L . S A L O SC H IN .   Chairman
                                                            and
                                        T   homasC . N e w k i r k . M em ber
                                             D epartm ent o f Justice
                                      F reedom o f Inform ation Com m ittee
                                                      O ffice o f L egal Counsel




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