Do non-US citizens have a privacy interest under FOIA?
I’m curious if non-US citizens, whether living in the US or abroad, have the same privacy protections under FOIA as US citizens? What are the criteria used to weigh release of information in cases where privacy interest and public interest conflict?
Related but not directly on point is the Supreme Court’s April 2013 decision in McBurney v. Young, No. 12-17, see http://www.scotusblog.com/case-files/cases/mcburney-v-young/ which held that non-Virginia residents do not have the right to file state FOIA requests under Virginia’s FOIA law.
I would recommend reading it with an eye to this question.
Under FOIA, foreign nationals are accorded the same privacy rights as U.S. citizens. The case law on this is clear-cut, as set forth in DOJ’s FOIA Guide:
See Shaw v. United States Dep’t of State, 559 F. Supp. 1053, 1067 (D.D.C. 1983); see also United States Dep’t of State v. Ray, 502 U.S. 164 (1991) (applying traditional analysis of privacy interests under FOIA to Haitian nationals); Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice, 215 F. Supp. 2d 94, 105-06 (D.D.C. 2002); (recognizing, without discussion, the privacy rights of post-9/11 detainees who were unlawfully in the United States) (Exemption 7(C)), aff’d on other grounds, 331 F.3d 918 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 1041 (2004); Schiller v. INS, 205 F. Supp. 2d 648, 662 (W.D. Tex. 2002) (finding that “[a]liens [and] their families . . . have a strong privacy interest in nondisclosure of their names, addresses, and other information which could lead to revelation of their identities”) (Exemption 7(C)); Judicial Watch, Inc. v. Reno, No. 00-0723, 2001 WL 1902811, at *8 (D.D.C. Mar. 30, 2001) (protecting asylum application filed on behalf of Cuban Elian Gonzalez); Hemenway, 601 F. Supp. at 1005-07 (according Exemption 6 protection to citizenship information regarding news correspondents accredited to attend State Department press briefings).