stating that "[w]hile it is true that [the testifying witness] cannot suppress those facts which have become a matter of public record, she retains her right to privacy as to other personal matters"
How later courts described this case
- stating that "[w]hile it is true that [the testifying witness] cannot suppress those facts which have become a matter of public record, she retains her right to privacy as to other personal matters"
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring.
Although I agree with the Court’s holding protecting confidential source information from disclosure, I disagree with that portion of the Court’s opinion holding that the government may withhold a dead man’s information under the privacy exception to the Freedom of Information Act, 5 U.S.C. § 522 (b)(7)(C) (1983).
Plaintiff’s request is that he be allowed access to documents concerning a dead man who testified at a state trial. A dead man retains no right to privacy after his death. Cordell v. Detective Publications, Inc., 419 F.2d 989 (6th Cir.1969) (right of privacy “lapses with the death of the person who enjoyed it”); cf. Diamond v. FBI, 707 F.2d 75 , 77 (2d Cir.1983) (in determining whether to permit disclosure of identities of persons subjected to investigation by FBI as possible subversives, district court properly concluded that exemption (b)(7)(C) does not apply because “death or voluntary disclosure so diminished any privacy interest as to amount to a waiver”); petition for cert. filed, — U.S. —, 104 S.Ct. 995 , 79 L.Ed.2d 228 (1983); Memphis Development Foundation v. Factors, Etc., Inc., 616 F.2d 956 (6th Cir.) (neither right of publicity nor right of action for defamation survive death), cert. denied, 449 U.S. 953 , 101 S.Ct. 358 , 66 L.Ed.2d 217 (1980). Furthermore, privacy rights are personal and may not be asserted by third parties. See Cor- *281 dell, 419 F.2d at 990 ; United States v. Amalgamated Life Insurance Co., 534 F.Supp. 676, 679 (S.D.N.Y.1982) (right to privacy terminates upon death, so company may not assert privacy rights of deceased employees to shield from inspection records relating to deaths of those employees). I see no reason to create for FOIA cases an exception to these clear and accepted principles.
I agree with our Court and the District Court that the FBI can withhold investigatory records relating to the dead man on the grounds that they are protected as information received from a confidential source under 5 U.S.C. § 552 (b)(7)(D). There is no question that the information was given by a confidential informant with the understanding that it would not be disclosed. Under such circumstances the legislative history recited by the court in footnote 7 and the accompanying text indicates that this privilege should not terminate upon the death of the informant because the interests of third persons are also at stake. The purpose of the request for service does not necessarily die with the informant as should be the case with the privacy exception, and so the confidential source exception continues to apply.