A previous post illustrated the USPTO's use of Exemption 6 to deny FOIA requests and one reason why such reasoning is improper (i.e., that the requested documents did not meet the threshold for the type of information protected by Exemption 6). Here, some of the additional requirements of Exemption 6 are analyzed with regard to whether there is a protectable privacy interest in public patent applications, and whether the public interest in disclosure of such documents outweighs any privacy interest that may exist, if one exists at all.
Specifically, even if the government can identify that requested information meets the threshold for the type of information protected by Exemption 6, disclosure is still available unless the USPTO can identify a protectable privacy interest. And even then, disclosure is possible if the public interest outweights any such privacy interest. Where information is kept in a publicly available, permanent record, no appreciable privacy interest has been found to exist. Aguirre v. SEC, 551 F. Supp. 2d 33, 54 (D.D.C. 2008). Thus, if you request information about publically available documents relating to published patent applications (which may be accessed by any member of the public), there can be no expectation of privacy in such information. In my case, the FOIA Officer suggested that a privacy interest may exist where disclosure of requested records might subject a person to harassment. However, this alleged purpose, which was merely hypothesized by the Officer, is irrelevant to the merits of the request. See Carpenter v. Dep’t of Justice, 470 F.3d. 434, 440 (1st Cir. 2006).
Furthermore, even if a privacy interest were found to exist, it would be outweighed by a significant public interest in the operations or activities of a federal government agency such as the USPTO. The core purpose of the Freedom of Information Act is to “shed light on an agency’s performance of its statutory duties.” Reporters Committee for Freedom of the Press, 489 U.S. at 773. I think the public has a right to know whether complex government agency procedures are being properly followed by government officials, or whether those procedures are being abused to complicate the lives of applicants. Without disclosure, the public has no way to address issues arising from possible agency abuses of administrative procedure.
If you have a FOIA request denied by the USPTO under Exemption 6, perhaps some of these points can be used in your appeal.
Stay tuned for a future posts that analyze the USPTO's use of Exemption 7(A).