The Department of Health and Human Services' (DHHS) performance is linked to its managers' performance, and when a former manager announces his candidacy for high public office, records on that manager's performance at DHHS properly belong in the public domain.

Given that the public interest under FOIA consists solely in shedding light on agency performance of its statutory duties, questions still remain as to why the public would be interested in a particular agency's (regional) performance and how assessments of agency performance affect other matters of public concern. To answer these questions, the public interest defined in Reporters Committee should be read as part of the Supreme Court's broader decisions on the First Amendment guarantee of a free and open discourse on matters of public concern. The Supreme Court's landmark New York Times Co. v. Sullivan decision recognized that our democratic form of government depends on providing the public with access to information on the issues that confront it. In that decision the Court quoted a concurring opinion by Justice Brandeis for the historical foundation for this policy:

Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument in force in its worst form.

New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (quoting Whitney v. California, 274 U.S. 357, 375-376 (1927)). The Court emphasized, "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ." Id. The New York Times decision unequivocally championed the disclosure and publication of material related to matters of public concern, and the Court limited the award of libel damages as one means of effecting this important policy goal. Id.

The Court unanimously extended the New York Times rule in two cases involving publication of information on candidates for public office. The Court sought to guarantee public access to "anything which might touch on an official's fitness for office" and noted "[t]he principal activity of a candidate in our political system . . . consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him." Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971); accord Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971). By limiting a candidate's ability to recover damages for libel, the Court sought to encourage the free and open discussion of a candidate's qualifications for office. Citizens should properly examine a candidate's background for indications of how he might perform in office. See Roy, 401 U.S. at 275-77; Damron, 401 U.S. at 300-01 ("Public discussion about the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule."). Federal agencies that possess records on the managerial performance of a candidate for elective office cannot ignore the intent of the Supreme Court's decisions on public discourse. These agencies owe a duty under FOIA to comply with reasonable requests for information on the official performance of candidates for elective office.

The Supreme Court has even gone so far as to characterize the free flow of information to the people as a "paramount public interest." Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). To this end, any matter that touches on an official's fitness for office is relevant. "Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Id. at 344-45 (quoting Garrison v. Louisiana, 379 U.S. 64, 77 (1964)).

Elected public officials wield considerable power in our nation, and a free and open press has long been held as a check against tyranny by those in power. Whitney, 274 U.S. at 375-76. Similarly, access to information on the government by private citizens under FOIA serves a valuable social goal: to "check against corruption and to hold the governors accountable to the governed." National Labor Relations Bd. v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978). The Robbins Tire decision linked the public interest under FOIA to the Supreme Court's line of decisions on freedom of the press: both FOIA and a free press aim to provide the people with access to information needed to form intelligent debate on matters of public concern.

The records released by DHHS would enable the public to hold a candidate for public office accountable for the performance of the DHHS regional office that he managed. Clark Garrison is a candidate for Governor of Tennessee, a high-level political office. (Compl., R. 2, Compl. Ex. A, R. 4; Aff., R. 8; Dep., R. 10). Mr. Garrison's qualifications for public office, including his performance as a regional administrator of DHHS, certainly warrant public scrutiny. Accordingly, the case at bar represents a prime example of holding the "governors accountable to the governed." To foster this accountability, the records released by DHHS properly belonged in the public domain. By releasing the redacted records on Garrison, DHHS acted in a conscientious manner to enable the public to become informed about a gubernatorial candidate and complied with "the principle that debate on public issues (such as candidates for public office) should be uninhibited, robust, and wide-open." See New York Times, 376 U.S. at 270.

Michael A. S. Guth, Ph.D., J.D., is a constitutional law attorney, legal brief writer, and health care researcher based in Oak Ridge, TN. A web page describing his law practice and other legal writings is available at http://riskmgmt.biz His current research comprises inefficiencies in health care insurance, pharmaceutical pricing, and best available treatments for Alzheimer