Joel Havemann v. Carolyn Colvin , 537 F. App'x 142 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2453
JOEL HAVEMANN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:10-cv-01498-ELH)
Submitted: June 12, 2013 Decided: August 1, 2013
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allan E. Feldman, SNIDER & ASSOCIATES, LLC, Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Joseph R. Baldwin, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On March 10, 2010, pursuant to the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, Appellant Joel Havemann filed six
requests for information with the Social Security Administration
(SSA). Per 5 U.S.C. § 552(a), the SSA was required “within 20
days after” receiving the request to (1) determine “whether to
comply with [the] request” and (2) “immediately notify
[Havemann] of [its] determination and the reasons therefor.”
Id. § 552(a)(6)(A)(i). The SSA sent Havemann six letters, dated
March 16 and 17, 2010, acknowledging receipt of his requests and
inviting him to inquire regarding their status if he did not
hear from them in thirty days. On June 8, 2010, Havemann filed
a complaint in the United States District Court for the District
of Maryland, (1) alleging that the SSA had failed to comply with
the deadlines imposed by 5 U.S.C. § 552(a)(6)(A) and (2) seeking
“injunctive relief compelling the release and disclosure of the
requested agency records.” The SSA then provided the following
notifications to Havemann regarding its disclosure
determinations: On August 13, 2010, it sent Havemann a letter
denying Requests I, II, and IV, and partially denying Request
III; on September 10, 2010, it sent a letter asking for
clarification regarding Request V; and on September 13, 2010, it
sent a letter communicating that it would partially grant
2
Request VI. Later it reversed some of these determinations, but
ultimately, as detailed below, it complied only partially with
Havemann’s requests. As to the information that it withheld, it
moved for summary judgment, maintaining that “further disclosure
would constitute a ‘clearly unwarranted invasion of personal
privacy’ under 5 U.S.C. § 552(b)(6).” Havemann v. Astrue, No.
10-1498, 2012 WL 4378143, at *1 (D. Md. Sept. 24, 2012). The
district court granted the motion, Havemann timely appealed, and
we have jurisdiction pursuant to 28 U.S.C. § 1331.
I.
Havemann is a free-lance journalist and filed his FOIA
requests in conjunction with research for a story that he
expects to publish in the National Journal. He is working with
Ronald Cooley, a former SSA employee who is not a party to this
case. According to Cooley, Havemann’s story (or stories) “will
take an in-depth look at the workings inside the SSA and, to a
lesser degree, the [Veteran’s Administration (VA)], as to their
administration of certain of their benefit programs, and the
relevant inter-agency interactions.” This appeal involves three
of Havemann’s six requests—Requests I, II, and V.
A.
3
In Request I, Havemann sought information regarding
married couples “where both members . . . were applying for
and/or receiving Supplemental Security Income (SSI) benefits as
an ‘aged, blind or disabled individual with an eligible spouse’
and where such benefits were denied or subsequently stopped
because the couple also received a pension from the Department
of Veterans Affairs.” Said differently, Havemann sought records
with the following three characteristics:
• The latest “type of master record” 1 is “aged, blind
or disabled individual with eligible spouse”;
• The record shows a denial of SSI for excess income
in 1990 or later, or shows that the individual and
spouse had been receiving SSI that was stopped in
1990 or later, due to excess income;
• The record shows that one or both members of the
couple received, or began receiving, a VA benefit
(pension or compensation) based on need.
Havemann’s purpose for this request is to “shed light on the
SSA’s handling of a regulatory policy concerning war veterans
and their spouses who receive a VA pension . . . and also file
for SSI benefits.”
The SSA released some of the information requested. Below,
we delineate the requested versus released information in the
same manner as the district court. The left column shows the
1
A “master record” is a code used to indicate relevant
characteristics of the individual represented by that record.
4
information requested and the right column indicates to what
extent the information was released.
FOIA Request I (Veteran Couple Request)
Data Requested Data Released
Social Security Number (SSN) Alternative Identifier
or alternative identifier
Current or last shown “Master Yes
Record”
Full Name No
Address with 9-digit zip code No (only initial 5 digits of
zip code released)
SSI application date No
Code for most recent state and No (only state code released)
county of residence
Current SSI status Yes
Reason for SSI denial Yes
Denial Date Yes
Date of status change due to Yes
excess income
Disability Payment Code 2 Yes
Ledger Account File (LAF) Code 3 Yes
Date of Birth No (only year released)
Earned Income Yes
Unearned Income Yes
Havemann challenges the SSA’s withholding of the month and day
of birth, and the SSI application date.
B.
2
The “disability payment code” denotes the type of
disability benefit awarded.
3
The “ledger account file code” denotes the current payment
status.
5
In Request II, Havemann sought information regarding
individuals who were over age sixty-five, who were receiving or
entitled to SSI payments, and whose “most recent SSI record
show[ed] no current receipt of [Social Security] benefits.” As
to these individuals, Havemann also requested data indicating
their date of enrollment in Medicare Part A and other Medicare
information. Here, Havemann’s purpose is “to shed light on the
SSA’s handling of referrals of SSI recipient[s] for Premium Part
A Medicare . . . through the QMB [Qualified Medicare
Beneficiary] Program.” The SSA released some of the data that
Havemann requested, as shown below:
FOIA Request II (QMB Medicare Request)
Data Requested Data Released
SSN or alternative identifier Alternative Identifier
Citizenship/alien status Yes
Current or last shown “Master Yes
Record”
Address with 9-digit zip code No (only initial 5 digits of
zip code released)
SSI application date No
Code for most recent state and No (only state code
county of residence released)
Individual Recipient Yes
Identification Code
Current Payment Status Code Yes
Beneficiary Identification Code Yes
(BIC)
Date of Birth No (only year released)
LAF Code Yes
Most recent federal SSI amount Yes
payable
Most recent federally administered Yes
SSI state amount payable
Hospital insurance enrollment and Yes
supplemental medical insurance
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information
Havemann challenges the SSA’s withholding of the month and day
of birth.
C.
In FOIA Request V, Havemann sought information regarding
deceased “primaries” (i.e., individuals whose SSN number is
recorded in the Master Beneficiary Record and on whose earnings
the record is based) and the beneficiaries listed on their
record, including the primary. Havemann’s purpose for this
request is “to assess and publicize how well the government is
administering Title 38 of the United States Code, Veterans’
Benefits.” The chart below delineates the information that the
SSA released.
FOIA Request V (MBR Request)
Data Requested Data Released
SSN of the deceased primary record No
holder
BIC Yes
Payment Identification Code Yes
Sex of Beneficiary Yes
SSI entitlement and termination Yes
dates
Code for most recent state and No (only state released)
county of residence
Primary Insurance Amount (PIA) Yes
Month and year of PIA Yes
9-digit zip code No
Date of birth No (only year released)
LAF code Yes
Monthly Benefit Amount (MBA) No
Monthly Benefit Payment (MBP) No
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SSI benefit type Yes
SSI status code Yes
Havemann challenges the withholding of the month and day of
birth, the MBA, the MBP, the county code, and the zip code.
II.
Although our standard of review for grants of summary
judgment generally is de novo, Adams v. Trs. of the Univ. of
N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011), where FOIA
is involved, our review is limited to determining “(1) [whether]
the district court had an adequate factual basis for the
decision rendered and (2) whether upon this basis the decision
reached is clearly erroneous.” Spannaus v. Dept. of Justice,
813 F.2d 1285, 1288 (4th Cir. 1987) (quoting Willard v. Internal
Revenue Serv., 776 F.2d 100, 104 (4th Cir. 1985)) (collecting
cases)) (internal quotation marks omitted).
A.
FOIA was enacted in 1967 as a means of “facilitating public
access to [g]overnment documents.” Its predecessor, Section 3
of the Administrative Procedure Act (APA), 5 U.S.C. § 1002
(1964), ostensibly existed for the same purpose but, as time
passed, was viewed “more as a withholding statute than a
disclosure statute.” Dept. of Air Force v. Rose, 425 U.S. 352,
8
360 (1976) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973))
(internal quotation marks omitted). “Congress therefore
structured a revision whose basic purpose reflected ‘a general
philosophy of full agency disclosure unless information is
exempted under clearly delineated statutory language.’” Id. at
360–61 (quoting S. Rep. No. 813, 89th Cong. 1st Sess., 3
(1965)). But Congress’s desire “to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny,” id. at 361 (quoting Rose v. Dept. of Air
Force, 495 F.2d 261, 263 (2d Cir. 1974)) (internal quotation
marks omitted), did not produce a statute that provides
unfettered access to agency records. Rather, in its current
form, FOIA reflects Congress’s intent that the public’s right to
information be balanced against other competing interests. At
issue here is the competing interest of privacy: Per 5 U.S.C.
§ 552(b)(6) (Exemption 6), an agency can refuse to disclose
“personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy.”
B.
The parties do not dispute that Exemption 6 applies to the
data at issue here. See U.S. Dept. of State v. Wash. Post Co.,
456 U.S. 595, 602 (1982) (“[W]e do not think that Congress meant
9
to limit Exemption 6 to a narrow class of files containing only
a discrete kind of personal information. Rather ‘[t]he
exemption [was] intended to cover detailed [g]overnment records
on an individual which can be identified as applying to that
individual.’” (second and third alterations in original)
(quoting H.R. Rep. No. 1497 (1966), reprinted in 1966
U.S.C.C.A.N. 2428). Accordingly, we determine whether
disclosing this data would “constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6); see also
Core v. U.S. Postal Serv., 730 F.2d 946, 947 (4th Cir. 1984)
(“If the files fall within th[e] definition [of similar files,]
the remaining issue is whether disclosure would constitute a
clearly unwarranted invasion of personal privacy.”). Making
“[t]his determination requires ‘a balancing of interest between
the protection of an individual’s private affairs from
unnecessary public scrutiny, and the preservation of the
public’s right to government information.’” Id. at 948 (quoting
S. Rep. No. 813).
1.
We think it obvious that the beneficiaries implicated by
Havemann’s requests have a privacy interest in the information
that the SSA has collected about them. Individuals have a right
to control dissemination of information about their person, even
10
if that “information may [already] be available to the public in
some form.” U.S. Dept. of Defense v. Fed. Labor Relations
Auth., 510 U.S. 487, 500 (1994); see also U.S. Dept. of Justice
v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763–64
(1989) (recognizing that the concept of privacy “encompass[es]
the individual’s control of information concerning his or her
person” and that “scattered disclosure of . . . bits of
information” is different than wholesale dissemination of
individuals’ profiles that are compiled by the government and
not otherwise “freely available” to the public). The more
pressing question is whether release of the withheld data would
enable identification of specific individuals and thus
compromise beneficiaries’ privacy.
Specific individuals obviously are identifiable through
data that is exclusive to their person, such as a name, address,
or social security number. Such data is termed a “unique
identifier.” At issue here are elements of data that are not
unique identifiers, but that, according to the SSA, function as
unique identifiers because they can be combined with other
available information to identify specific individuals. The
district court agreed with the SSA’s categorization of this data
and its decision to deny disclosure because of the possibility
that the data could be used to single out certain beneficiaries.
We find the district court’s decision sound. The record
11
provided to this Court demonstrates that the SSA thoroughly
analyzed and demonstrated the methods through which the withheld
data could lead to the identification of specific individuals.
The district court relied on the SSA’s analysis, and we can
ascertain no reason why it should not have done so. Moreover,
Havemann’s arguments to the contrary fall short because they
focus on whether singular pieces of withheld data (e.g., month
and day of birth, SSI application date, etc.) could lead to the
identification of individuals rather than on whether those
pieces of data working in combination with other information
could assist in such identification.
Havemann faults the SSA’s rationale for withholding this
data, charging that it is speculative: “[T]he Agency withheld
the date of birth from disclosure based on the premise that
personal information could lead to identification of a living
individual. However[,] the cases dealing with this issue hold
that possibility of identification is not a sound bas[is] for
nondisclosure.” But Havemann’s argument lacks merit. It is
true that an agency cannot withhold information based on a “mere
possibilit[y]” that an individual’s privacy will be invaded.
See Department of Air Force v. Rose, 425 U.S. 352, 378 (1976)
(“The legislative history is clear that Exemption 6 was directed
at threats to privacy interest more palpable than mere
possibilities.”). But it can withhold data if it demonstrates a
12
likelihood that releasing the information would connect private
records to specific individuals. See Nat’l Ass’n of Retired
Fed. Emp., 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a
substantial probability that disclosure will cause an
interference with personal privacy, it matters not that there
may be two or three links in the causal chain. The
concern . . . is not . . . with the number of steps that must be
taken to get to the threatened effect; rather, [it is on] the
likelihood that the effect will ever come to pass.”). As noted
above, the SSA conducted a thorough and careful demonstration of
the effect that releasing the disputed data could have. As
such, the district court did not err in concluding that
disclosure of the data would implicate the beneficiaries’
privacy interests.
2.
Having concluded that beneficiaries’ privacy interests are
at stake, we evaluate whether those interests are outweighed by
the public’s interest in disclosure. Per the Supreme Court,
“the 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.’” U.S. Dept. of Defense v. Fed. Labor Rel.
13
Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm., 489
U.S. at 773).
Havemann’s stated intent to evaluate the SSA’s
administration of various benefit programs fits within FOIA’s
goal of “shed[ding] light on an agency’s performance of its
statutory duties.” But he fails to satisfactorily articulate
how the withheld data aids his pursuits. In his brief to this
Court, he avers that “to properly inform the public about SSA’s
operations and associated failures, [he] needs records and
combinations of records that pertain to individuals.” But the
information that the SSA has already disclosed does relate to
individuals, and Havemann does not indicate why it is
insufficient. Havemann further maintains that “dates of birth
are essential to identification of eligibility for certain
categories of benefits.” As noted by the district court,
however, the SSA has explained that Havemann can achieve nearly
100% accuracy on eligibility determinations with access simply
to the year of birth. Thus, it is unclear how access to the
month and day of beneficiaries’ birth will assist Havemann in
any significant way.
Having reviewed the district court’s decision and
Havenmann’s arguments, we are convinced that any interest the
public may have in the withheld data is sufficiently outweighed
by the privacy interests that would be compromised by such
14
disclosure. The public’s interest in disclosure of the withheld
data is negligible at best. The SSA has provided significant
details for more than 140 million individuals, and such details
appear sufficient to allow Havemann to conduct his analysis. To
the extent that they are lacking, we do not believe that the
marginal gains ostensibly possible through further disclosure
are worth the burdens that will likely result to beneficiaries’
privacy interests. Accordingly, we conclude that the district
court “had an adequate factual basis for the decision [it]
rendered” and that its decision was not clearly erroneous.
Spannaus, 813 F.2d at 1288. Thus, we affirm the district
court’s grant of summary judgment to the SSA.
III.
Havemann contends that he is entitled to attorney’s fees
and costs and that the district court erred in denying his
motion to this effect. Per 5 U.S.C. § 552(a)(4)(E), “[t]he
court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially
prevailed.” A complainant “substantially prevail[s]” in a case
when he proves that “(1) his filing of the FOIA action was
necessary to obtain the information sought and (2) the action
had a ‘substantial causative effect’ on the ultimate receipt of
15
that information.” Long v. U.S. I.R.S., 932 F.2d 1309, 1313
(9th Cir. 1991). Here, Havemann did not “substantially
prevail[]” in his opposition to the SSA’s summary judgment
motion. Thus, he is not entitled to attorney’s fees connected
with that endeavor. He appears to argue, however, that he is
entitled to the fees associated with filing his complaint on
June 8, 2010, because, as noted above, although the SSA
acknowledged his requests for information within the timeframe
outlined in section 552(a)(6)(A), it failed to communicate its
determinations regarding disclosure within that timeframe. The
filing of the complaint thus arguably “was necessary to obtain
the information [Havemann] sought” and “had a ‘substantial
causative effect’ on the ultimate receipt of [the] information”
that the SSA did disclose. Id. We decline to explore this
argument further, however, because, as the SSA points out,
Havemann failed to comply with the requirements of Federal Rule
of Civil Procedure 54 regarding claims for attorney’s fees.
Rule 54 requires that “[a] claim for attorney’s fees . . . be
made by motion”; “be filed no later than 14 days after the entry
of judgment”; “specify the judgment and the statute, rule, or
other grounds entitling the movant to the award”; “state the
amount sought or provide a fair estimate of it”; and “disclose,
if the court so orders, the terms of any agreement about fees
for the services for which the claim is made.” Fed. R. Civ. P.
16
54(d)(2)(A)-(B). Havemann made no such motion. We recognize
that in his “Memorandum of Points and Authorities in Opposition
to Defendant’s Motion for Summary Judgment,” Havemann argued
that he was entitled to attorney’s fees because the SSA did not
provide a substantive response to his request until after he
filed his complaint in this action. But even if we reckon this
argument sufficient to comply with Rule 54’s requirement that
“[a] claim for attorney’s fees . . . be made by motion,” Fed. R.
Civ. P. 54(d)(2)(A), we cannot ignore Havemann’s failure to
“state the amount sought or provide a fair estimate of it,” Fed.
R. Civ. P. 54(d)(2)(B)(iii). Because Havemann failed to make a
proper plea for attorney’s fees before the district court, the
district court did not err in denying his request.
IV.
For the reasons stated above, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the
decisional process.
AFFIRMED
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