Joel Havemann v. Carolyn Colvin ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1294
JOEL HAVEMANN,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:12-cv-01235-JFM)
Submitted: October 30, 2015 Decided: November 23, 2015
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James L. Fuchs, SNIDER & ASSOCIATES, LLC, Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Joseph R. Baldwin, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joel Havemann appeals from the district court’s order
granting summary judgment to Defendants in his Freedom of
Information Act (FOIA) proceeding against the Social Security
Administration (SSA). Havemann sought the disclosure of data in
order to write an article about large groups of allegedly
shortchanged beneficiaries. The SSA released some of the data
requested, but withheld other data after determining that its
release could result in the identification of personal
information about numerous individuals.
On review of the district court’s grant of summary judgment
in favor of the Government in a FOIA action, we must determine
de novo whether, after taking the evidence in the light most
favorable to the nonmovant, there remains any genuine issue of
material fact and whether the Government is entitled to summary
judgment as a matter of law. See Ethyl Corp. v. United States
Envtl. Prot. Agency, 25 F.3d 1241, 1246 (4th Cir. 1994). FOIA
requires federal agencies to disclose agency records unless they
may be withheld pursuant to one of nine enumerated exemptions
listed in 5 U.S.C. § 552(b) (2012). A defendant agency has the
burden of establishing the adequacy of its search and that any
identifiable document has either been produced or is subject to
withholding under an exemption. See Carney v. United States
Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994). This burden
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may be met through affidavits explaining the manner in which the
search was conducted. See id.An agency’s affidavits must be relatively detailed and
nonconclusory in order to support a FOIA exemption. See
Simmons v. United States Dep’t of Justice, 796 F.2d 709, 711-12
(4th Cir. 1986); see also Nat’l Parks & Conservation Ass’n v.
Kleppe, 547 F.2d 673, 680 (D.C. Cir. 1976) (holding that
conclusory and generalized allegations are unacceptable as means
of sustaining the burden of nondisclosure). The court is
entitled to accept the credibility of such affidavits, so long
as it has no reason to question the good faith of the agency.
See Bowers v. United States Dep’t of Justice, 930 F.2d 350, 357
(4th Cir. 1991); see also Carney, 19 F.3d at 812 (holding that
such affidavits are accorded a presumption of good faith). To
prevail over this presumption a requestor must demonstrate a
material issue by producing evidence, through affidavits or
other appropriate means, contradicting the adequacy of the
search or suggesting bad faith. See Miller v. United States
Dep’t of State, 779 F.2d 1378, 1384 (8th Cir. 1985). When
deciding whether these burdens have been met, the district court
must consider everything in the light most favorable to the
nonmoving party.
Determining whether an agency’s documents involve
information “the disclosure of which would constitute a clearly
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unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6)
(“Exemption 6”), requires this court “to balance the
individual's right of privacy against the basic policy of
opening agency action to the light of public scrutiny.”
Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 693 (9th
Cir. 2012). At step one, the court looks to see whether there
is any privacy interest that outweighs the generalized public
interest in disclosure; if so, the court then looks (at step
two) to see if the public interests in disclosing the particular
information requested outweigh those privacy interests. Id. at
694. “[T]he only relevant public interest in the FOIA balancing
analysis is the extent to which disclosure of the information
sought would she[d] light on an agency's performance of its
statutory duties or otherwise let citizens know what their
government is up to.” Bibles v. Or. Natural Desert Ass'n, 519
U.S. 355, 355–56 (1997) (per curiam) (quotation marks and
citations omitted, alteration in original).
We find that the evidence produced by the SSA appropriately
outlined its search for responsive data and its reasons for
withholding certain data or portions thereof. Thus, the
Defendant has met its burden of showing that it performed an
adequate search and that data has either been produced or is
subject to withholding under Exemption 6.
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In an effort to rebut the SSA’s evidence, Havemann asserts
that the district court improperly considered affidavits from a
previous case, erroneously relied upon interested “experts,” and
considered affidavits that were merely speculative. However, we
held in the previous litigation over the release of similar data
fields that the “SSA thoroughly analyzed and demonstrated the
methods through which the withheld data could lead to
identification of specific individuals.” Havemann v. Colvin,
537 F. App’x 142, 147 (4th Cir. Aug. 1, 2013) (No. 12-2453).
Besides claiming that the requests were different in the
previous litigation and that the district court failed to
conduct a lengthy analysis of the similarity, Havemann fails to
show what error occurred from considering evidence in the
previous case, or why the methodology and conclusions in the
previous case cannot be applied in the present case, to the
extent they are relevant.
Further, our review leads us to the conclusion that the
previous and current affidavits are not speculative, but rather
contained specific numbers and percentages of persons
identifiable when combining Havemann’s requested data and
publicly available records. Finally, with regard to the
affidavits being rendered by persons working for the SSA, it is
unclear who else could opine as to the methodology undertaken to
respond to Havemann’s requests, and Havemann has made no showing
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of bad faith. Thus, we hold that the district court correctly
relied upon the SSA’s evidence in determining that the SSA had
shown a risk of disclosure of personal information.
Havemann next contends that the need for public disclosure
outweighed the risk of invasions of privacy. Specifically,
Havemann asserts that release of the requested information will
identify multiple underpaid beneficiaries and that time is of
the essence, because beneficiaries are dying. However, it is
undisputed that Havemann would be unable to make any eligibility
determinations for benefits based solely on data, because such a
determinations require examination of many different and
complicated variables including work issues, prior filings, and
auxiliary benefits. Further, the SSA points out that the
information sought by Havemann would be overinclusive,
permitting him to identify numerous individuals who have already
been paid and who have had their claims rejected, as well as
those who may potentially have a claim. In addition, Havemann
has failed to show how the withheld data fields are necessary or
helpful to his calculations and research and why the data fields
he has received are insufficient for his purposes. Accordingly,
the district court did not err in concluding that the public
interest did not outweigh the privacy interests involved.
Next, Havemann asserts that the SSA’s delay in responding
to his requests was improper and that the determination that the
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SSA was appropriately awaiting the result of the initial
litigation was improper because the SSA never raised that
excuse. However, our review of the record shows that the SSA
appropriately and reasonably replied to Havemann’s multiple,
overlapping FOIA requests that involved possible exposure of
sensitive personal information. Moreover, the SSA’s delay, even
if improper, cannot be a basis for disclosing personal
information. Instead, the proper relief would be an injunction
against future actions, relief that Havemann has not requested.
See Mayock v. Nelson, 938 F.2d 1006, 1007-08 (9th Cir. 1991).
Finally, Havemann contends that the district court did not
properly consider his request for a protective order that would
reserve to the SSA the ability to make any actual contact with
beneficiaries. However, the Supreme Court has noted that
“[t]here is no mechanism under FOIA for a protective order
allowing only the requestor to see whether the information bears
out his theory, or for proscribing its general dissemination.”
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174
(2004). As such, any information that would permit Havemann to
locate potential beneficiaries would also permit anybody else
who obtains the released information to locate these
beneficiaries. Thus, even were Havemann under a protective
order not to contact them, an order could not prevent
non-parties from using and disclosing the personal information
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involved. Accordingly, the district court did not err in
rejecting this claim.
Thus, we affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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