need not even be addressed in this case as it was in Holy Spirit and Goland, the plaintiff contended, because

the critical threshold element is not present: there is no
evidence that the requested records were ever placed
under congressional control. Instead it appears that the
Office of the Attending Physician requested certain sup-
plies from the Navy, and a record of the quantities of sup-
plies the Navy transferred to that Office was recorded in
the Navy's own records as a form of internal inventory
control. In other words, this issue should be decided in
Plaintiff's favor because records which were created by an
agency, maintained by an agency and at all times under
the control of an agency, are “records” of that agency and

thus subject to the FOIA. (Id. at 5] Next, the plaintiff challenged the Navy's alternative argument that the records could be withheld on privacy grounds under the FOIA'S xemption 6 (5 U.S.C. $ 552(b)(6)), which allows agencies to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The plaintiff asserted that this argument was not only based on a misreading of Exemption 6, but also ignored the limited nature of his request, which specifically stated that the names of patients and other identifying details could be deleted. The plaintiff insisted that the records at issue were not personal "medical" files on individual Members of Congress:

Rather these records consist of that portion of the Navy's
internal computer print-out and other bulk supply records
which show the total quantity of drugs transferred to the
Office of the Attending Physician. Under no interpretation
can the phrase "similar files" be stretched to include such

inventory control documents. (Id. at 6] Further, he said, disclosure of the records would not cause a "clearly unwarranted invasion of personal privacy,” the high standard required by Exemption 6.

[I]t is hard to understand how release of the Navy's bulk
supply inventory control documents could produce a
"clearly unwarranted” invasion of anyone's personal pri-
vacy. These records disclose only the total quantity of pre-
scription drugs sent to the Office of Attending Physician,
and do not identify any individual Members of Congress
who may have taken the drugs in question. Moreover
plaintiff is not seeking any personal data. His FOIA re-
quest and appeal specifically stated that the names of pa-
tients and other identifying details may be deleted. The
Navy's refusal to release any of the requested records on

privacy grounds is totally unsupported. (Id. at 6-7] On December 23, 1981, the defendant filed an answer to the complaint along with a motion for summary judgment and a supporting memorandum. While the Navy no longer contended that the requested materials were Congressional, not agency, records, the defendant continued to maintain that disclosure of the documents would constitute a "clearly unwarranted" invasion of personal privacy and therefore had been properly withheld under FOIA Exemption 6. The Navy summarized its position as follows:

While on their face these records do not appear to contain
information about the medical care of any individual, be-
cause of the limited nature of the population served by the
OAP, the publicity surrounding most of its patients, and
the specific uses of many drugs listed in the records, the
release of the documents requested would be tantamount
to disclosing certain medical diagnoses, and would promote
speculation about the medical conditions or problems of
those using the OAP. The release of material with infor-
mation of such an intimate, personal nature constitutes a
clearly unwarranted invasion of the privacy of each pa-
tient of the OAP. [Memorandum of Points and Authorities
in Support of Defendant's Motion for Summary Judgment
and in Opposition to Plaintiff's Motion for Summary Judg-

ment, December 23, 1981, at 1] More specifically, the Navy asserted that the requested documents met both the requirements of Exemption 6. First, the defendant claimed, the records were “medical” or similar files because they described the identity and quantity of prescription drugs sent to a particular physician's office which serves a relatively small, publicly identifiable population." [Id. at 5] Further, the defendant argued, the records contained information concerning the "intimate details" of various individuals' medical care, and “knowledge of the identity of the prescription drugs and medicines provided to the OAP can be used to learn the most personal details about the health of those who are patients of th[e] office." [Id. at 6]

Second, the Navy argued, the release of lists of drugs would in fact cause a "clearly unwarranted invasion of personal privacy, because from the records one not only might be able to identify an individual Member of Congress who had taken a specific drugs but also could possibly deduce the most intimate details of the medical condition of that particular Member. The defendant continued:

In this case, even though plaintiff seeks what may appear to be anonymous records of bulk transfers, as shown by the [Attending Physician) Cary Affidavit the disclosure of the information in these records will invade the privacy of a Member whose medical condition may be publicized because of the release of a crucial bit of information, and of each Member who is subject to questions of a personal intimate nature based on knowledge of the drugs which have been prescribed by the OAP. Contrary to plaintiff's statement (Plaintiff's Memo at 7), the release of the names of the drugs sent to Congress may in fact identify an individual Member of Congress who has taken the

drug in question. (Id. at 9] Finally, the Navy asserted, the fact that the plaintiff agreed that the names of individuals could be deleted from the requested documents did not necessarily make the files releasable, since in fact "the result of providing the records he seeks will be to disclose intimate personal information." [Id. at 8] And the substantial interest in personal privacy of Members of Congress, the defendant concluded, was clearly not outweighed by any public interest in disclosure.

On January 5, 1982, the plaintiff filed a reply memorandum in support of his motion for summary judgment and in opposition to the defendant's cross-motion. In sum, plaintiff argued that the Navy's contention that individual members could be identified from the bulk supply documents was "far too broad” and as a practical matter, "impossible." Again, the plaintiff emphasized that he was willing to forgo access to any particular record which might invade the privacy of any particular Congressman. Because the defendant had made no detailed showing of any such possible injury, and instead had simply argued that all the requested documents were exempt from disclosure, the plaintiff claimed that the Navy had failed to meet its burden to justify withholding of the records on privacy grounds.

On January 15, 1982, the defendant filed its reply memorandum reiterating its argument that it had properly invoked Exemption 6 of the FOIA to justify. withholding the requested documents. Again, the Navy insisted that even though the records did not contain the names of specific individuals, the release of the documents could result in the disclosure of personal matters concerning certain Members. Additionally, the memorandum defended the submission of an in camera affidavit by Dr. Freeman H. Cary, the Attending Physician to the U.S. Congress, which purportedly demonstrated the problems associated with the release of the documents sought by the plaintiff.

On April 27, 1982, U.S. District Court Judge Barrington D. Parker issued a memorandum order granting the defendant's motion for summary judgment and dismissing the complaint with prejudice. Judge Parker held that the records at issue were "personnel and medical files and similar files” and that their disclosure would produce a "clearly unwarranted" invasion of privacy; therefore he concluded that Exemption 6 had been properly invoked and records need not be released.

Turning first to the type of documents sought, Judge Parker ruled that “the identity and quantity of prescription drugs sent to a physician's office which serve a select population must be considered medical data which fall within the scope of Exemption 6. [Memorandum Order of Dismissal, April 27, 1982, at 3 (footnote omitted)] Further, the judge found that the records could also be used to learn the intimate details of the medical care of OAP patients, despite the fact that the materials did not, on their face, contain the personal details of any individual's medical condition. Judge Parker in essence accepted the Navy's argument that the records could be used as pieces of a jigsaw puzzle to confirm whether an individual was being treated for a particular medical condition:

The Court finds the unchallenged affidavit of the Attend-
ing Physician, Freeman H. Cary, M.D., particularly per-
suasive. He stated that the OAP staff frequently receives
requests for information about Members' medical condi-
tions. These inquiries “often reflect that the inquirers

21-618 0–83_-33

have already pieced together information about the medi-
cal condition of Members; sometimes they seek from the
OAP just a single bit of information that would transform
speculation about Members' medical conditions or where-
abouts into certain knowledge.” Cary Affidavit, | 6. In ad-
dition, certain drugs suggest a certain diagnosis, either be-
cause they are "widely prescribed for treatment of a par-
ticular type of medical problem or condition or because a
drug is prescribed exclusively, or almost exclusively, for a
particular medical problem or condition.Id., 1 9.

Despite the form of the requested records, the result of
their disclosure would be the release of personal details of
the health of OAP patients. "The relevant consideration is
whether the privacy interests arising from the information
sought are similar to those arising from personnel or medi-
cal files, and not whether the information is recorded in a
manner similar to a personnel or medical record.” Harbolt
v. Department of State, 616 F.2d 772, 774 (5th Cir.), cert.
denied, 449 U.S. 856 (1980). See Rural Housing Alliance v.
United States Department of Agriculture, 498 F.2d 73, 77
(D.C. Cir. 1974). The knowledge of what drugs were pre-
scribed to this select group would "serve as the basis for
deductions about the most intimate details of the medical
condition of particular Members." Cary Affidavit, 1 9. (Id.

at 4] Focusing on the privacy argument, Judge Parker again accepted the Navy's argument, supported by Dr. Cary's in camera affidavit, that release of the records would be tantamount to disclosing a medical diagnosis and would therefore constitute a "clearly unwarranted" invasion of privacy:

The Court concludes that because of the limited nature of the population served by the OAP, the publicity surrounding most of its patients, and the specific uses of many drugs listed, the release of these records would promote speculation concerning the medical problems or conditions of those using OAP. This speculation, and the resulting questions to a Member concerning the intimate details of his life and medical condition, would constitute a clearly unwarranted invasion of the Member's privacy. (Id.

at 5] The judge ruled that, under relevant precedent, the Navy could withhold the requested information on privacy grounds despite the fact that the records were seemingly innocuous on their face, since their release might be revealing “in context."

Finally, Judge Parker concluded that “in balancing the interests of the Members' personal privacy against the public interest in disclosure, the scale tips decidedly in favor of nondisclosure,” since there "is . . . (a) substantial interest in preserving the confidentiality of the services provided by the OAP which is overriding.” (Id. at 6]

On May 11, 1982, the plaintiff filed a notice of appeal from Judge Parker's memorandum order to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 82-1536)

On June 18, 1982, plaintiff-appellant Arieff filed his brief in the appeals court arguing that the lower court erred in finding that mere "speculation and questioning" regarding Members' medical conditions constituted a "clearly unwarranted" invasion of privacy sufficient to invoke Exemption 6. He contended:

With all respect, the possibility that disclosure would lead to speculation and questioning of high-level public officials about their health does not rise to the level of a "clearly unwarranted" invasion of privacy. As the Supreme Court put it, "Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities. Dep't of the Air Force v. Rose, 425 U.S. at 380 n. 19. Yet "mere possibilities” are the only reasons advanced by the Navy for withholding, and the Navy's jigsaw puzzle argument is not tenable, both on the particular facts of this case and also as a matter of law. [Brief of Appellant, June

13, 1982, at 14] In any event, the plaintiff asserted, the requested records could not, in fact, be used to identify the medical condition of individual Members because: (1) the records, as bulk supply documents, were anonymous (i.e., they did not name names); (2) the great number of Members and others using OAP (some 600 individuals) and the substantial number of prescriptions filled (approximately 7500) made specific identification "statistically impossible"; (3) the fact that a drug associated with a given condition appeared on the inventory records was no evidence that a given Member was being treated for that particular condition, since drugs can be prescribed for more than one illness; and (4) no matter how much anyone speculated about a Member's health, only the Member or his physician could confirm the speculation, and that situation would remain unchanged even if the records were disclosed.

Even if disclosure did subject Members to increased speculation and questioning about their health, Mr. Arieff maintained, that did not meet the "clearly unwarranted" standard. First, he noted, Members are "high-level officials, . . . who hold highly visible elective office and are regularly subject to questions about their health” [Id. at 18-19), and, for such public figures in particular, the possibility of further questions on the subject was not enough to tilt the balance in favor of withholding. Second, the plaintiff insisted, any minimal intrusion caused by additional speculation or questioning was outweighed by the public interest in disclosure. He elaborated:

Free OAP care is the sort of congressional benefit or
"perk” which has long been the subject of considerable
public interest. Disclosure of the NNMC records would
give the public an idea of how-and how well-OAP is
spending public money on this service, e.g., to what extent
is OAP dispensing brand-name drugs instead of less expen-
sive generic drugs? Is OAP prescribing drugs which the

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