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Death breathes new life into some records

For some Federal records, death is just the beginning. (ARC Identifier 521130)

We’ve written before about the careful balancing act that Federal agencies must perform when they consider requests for records that contain information about an individual other than the requester—those who work for the government and those who don’t. In most cases, such third-party information will be withheld under Exemption 6 (and possibly Exemption 7(C) if the information is in law enforcement records). Courts have found that individuals have privacy interests in their names, addresses, dates of birth, places of birth and employment history, among other information, and that those privacy interests outweigh public interest in release. But what happens when the subject of those records is no longer living?

Because Exemptions 6 and 7(C) are designed to prevent the release of information about living individuals, in many cases (but not all)  the protections provided under these exemptions no longer apply after a person’s death. While this is great news for the intrepid researcher, it is important to keep in mind that it’s generally incumbent upon the requester to prove that the subject of a record is deceased.

While what is considered acceptable proof of death may vary by agency, most agencies include the following items in that list:

  • A death certificate;
  • An obituary or similar newspaper article; or
  • A police report.

It’s a good idea to gather this information and include it with your initial request; if the agency needs to return it to you to ask you for any of these things, your request will take longer.

One important caveat:  in order to provide proof of death for third parties mentioned in responsive records, you must be able to identify those third parties. In some cases, you may be familiar enough with a subject that you have a pretty good idea who is mentioned in the records. If not, some additional research may help you identify for whom you will need to provide proof of death. If this is still not an option, keep in mind that most agencies assume that an individual named in records is deceased if a certain amount of time has passed since his or her birth; in most cases, this is 100 years.

Finally, keep in mind that just because an individual’s death may lift some of the protections offered by Exemptions 6 and 7(C), other FOIA exemptions may apply to part or all of the third-party information. As always, if you have a question about an agency’s response to your request (or if you are an agency looking for more assistance with these issues), feel free to contact OGIS – we are glad to help.