Yonemoto v. Department of Veterans Affairs , 648 F.3d 1049 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD M. YONEMOTO,  No. 10-15180
Plaintiff-Appellant, D.C. No.
v.
 1:06-cv-00378-BMK
DEPARTMENT OF VETERANS AFFAIRS, ORDER AND
Defendant-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding
Argued and Submitted
February 15, 2011—Honolulu, Hawaii
Filed August 17, 2011
Amended January 18, 2012
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
357
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 361
COUNSEL
Peter Van Name Esser of the Law Offices of Peter Van Name
Esser, Honolulu, Hawaii, for plaintiff-appellant Ronald M.
Yonemoto.
Charles W. Scarborough and Leonard Schaitman of the Civil
Division of the Department of Justice, Washington, DC, for
defendant-appellee Department of Veteran Affairs.
ORDER
The court sua sponte recalls the mandate issued on October
12, 2011. The opinion filed on August 17, 2011, and reported
at 648 F.3d 1049, is hereby amended. The amended opinion
is filed concurrently with this order. The court directs the
Clerk to reissue the mandate forthwith.
IT IS SO ORDERED.
OPINION
BERZON, Circuit Judge:
The Freedom of Information Act, (“FOIA”), 5 U.S.C.
§ 552, mandates that federal agencies make their records
362 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
available to the public upon request, subject to nine discre-
tionary exemptions. See Milner v. Dep’t of Navy, 131 S. Ct.
1259, 1262 (2011). This case presents two FOIA issues. The
first is whether an agency fulfills its disclosure obligation by
offering to supply the documents to the requester, but only in
his capacity as an employee of that agency. The answer to that
question is unquestionably “no.” The second involves applica-
tion to internal emails of FOIA Exemption 6, which provides
that an agency may withhold “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6).
FACTUAL AND PROCEDURAL HISTORY
Plaintiff-appellant Ronald M. Yonemoto is an employee of
the Veterans Health Administration (“VHA”), a component of
the defendant-appellee, the Department of Veteran Affairs
(“the VA” or “the agency”). Between May 2005 and April
2006, Yonemoto submitted eight requests under the FOIA and
the Privacy Act, 5 U.S.C. § 552a, primarily asking for emails
to and from specified individuals. In response, the VA made
a number of disclosures totaling about 1500 pages, but with-
held some records in part and some in their entirety, pursuant
to various FOIA exemptions. After exhausting his avenues for
administrative relief, Yonemoto filed suit in the District Court
for the District of Hawaii on July 11, 2006, alleging violations
of both the FOIA and the Privacy Act.
Given the breadth of Yonemoto’s requests and the overlap
in the FOIA exemptions the VA claimed, the parties and the
district court agreed that the VA would move for partial sum-
mary judgment as to one of Yonemoto’s requests, the decision
on which the district court would certify for interlocutory
appeal under 28 U.S.C. § 1292(b). The motion for partial
summary judgment concerned redactions of parts of five
emails under Exemption 6. The district court granted the
VA’s motion for partial summary judgment, holding the agen-
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 363
cy’s redactions permissible and the emails not subject to dis-
closure under the Privacy Act. See Yonemoto v. Dep’t of
Veterans Affairs [“Yonemoto I”], No. 06-CV-378, 2007 WL
1310165, at *4-6 (D. Haw. May 2, 2007). The district court
then stayed the rest of the case pending Yonemoto’s interloc-
utory appeal. Id. at *7.
A motions panel granted Yonemoto permission to appeal
under 28 U.S.C. § 1292(b) in August 2007, and the appeal
was calendared for oral argument on November 20, 2008.
Shortly before the argument, the VA produced the emails at
issue to Yonemoto, unredacted, in response to a discovery
request regarding a charge pending with the Equal Employ-
ment Opportunity Commission (“EEOC”) concerning
whether the VA had discriminated against Yonemoto. The
interlocutory appeal was thereafter dismissed in a memoran-
dum disposition, which stated in relevant part:
Yonemoto [has] informed the court that the VA pro-
duced the redacted materials in the discovery process
of his EEOC claim. This production moots Yonemo-
to’s claims. See Papa v. United States, 281 F.3d
1004, 1013 (9th Cir. 2002) (stating production of all
nonexempt material, “however belatedly,” moots
FOIA claims). Yonemoto argues that the claim is not
moot, because the decision would be applicable to
other FOIA/Privacy Act claims pending before the
district court. We disagree. The district court has not
ruled on those issues. Given the disclosure of the dis-
puted redacted materials in his EEOC action, Yone-
moto may receive the remaining materials in any
event. See Church of Scientology of Cal. v. Dep’t of
Army, 611 F.2d 738, 746 (9th Cir. 1979) (noting the
availability of any alternative means of obtaining the
requested information is a factor in determining
whether disclosure is proper). Upon remand, the dis-
trict court can determine whether Yonemoto’s entire
claim is moot.
364 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
Yonemoto v. Dep’t of Veterans Affairs [“Yonemoto II”], 305
F. App’x 333, 334 (9th Cir. 2008) (unpub.).
Upon remand, the parties narrowed their dispute to 205
emails. See Yonemoto v. Dep’t of Veterans Affairs
[“Yonemoto III”], No. 06-CV-378, 2009 WL 5033597 (D.
Haw. Dec. 22, 2009). The VA permitted Yonemoto to view
190 of those emails in full, but only in his capacity as a VA
employee. After viewing the 190 emails, Yonemoto withdrew
his request for 33 of them. The VA then offered to provide
Yonemoto unredacted copies of the 157 emails that he had
seen, but, again, only “as a VA employee.” The VA’s Assis-
tant Regional Counsel explained in a declaration submitted to
the district court that “[t]he VA’s purpose for making the
emails available to Plaintiff as a VA employee was to allow
Plaintiff to view the emails without requiring the VA to make
the emails available to the public, as a FOIA production
would.” Yonemoto declined the VA’s offer.
The parties again filed cross-motions for summary judg-
ment. Still contested were the 157 emails copies of which
Yonemoto had viewed in full (but did not have in unredacted
form) and redactions of 15 emails that the VA had not permit-
ted him to see in full. Of the latter group, 3 were duplicates,
so 169 emails were at issue.
The district court held a hearing on the cross-motions for
summary judgment on December 11, 2009. During the hear-
ing, the district court suggested—although the VA had not
argued—that the VA’s offer to give the 157 emails to Yone-
moto in his capacity as an employee mooted his FOIA claim
to those documents. Yonemoto contested that proposition,
maintaining that there would be limitations on distributing
emails received as a VA employee. Confirming that assertion,
the VA’s attorney represented that if Yonemoto received the
records as an employee, “there are restrictions on you that
aren’t the same as if you’re getting that document as a citi-
zen,” and explained that the VA did not want to “publicize
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 365
[the offered emails] to the world.” Although the VA argued
that it had carried its burden on summary judgment to justify
the redactions, the agency never supported the district court’s
mootness suggestion. At the conclusion of the hearing, the
district court ordered the VA to submit for an in camera
review the 12 emails Yonemeoto had not seen.
Shortly thereafter, the district court issued an order granting
summary judgment to the VA, holding that: (1) the VA’s
offer to produce the 157 emails to Yonemoto in his capacity
as an employee mooted his claim as to those emails; (2) the
redacted portions of the remaining 12 emails were properly
withheld under Exemptions 2,1 5,2 and 6; and (3) Yonemoto
could not obtain the emails under the Privacy Act. Yonemoto
timely appealed these first two holdings, but abandoned his
Privacy Act claim.
In his opening brief, Yonemoto addressed all three of the
VA’s claimed FOIA exemptions. The VA’s answering brief,
however, abandoned reliance on Exemptions 2 and 5 by noti-
fying us that (1) the VA had recently disclosed to Yonemoto
in unredacted form 3 of the 12 disputed emails, each of which
had been redacted only under Exemption 2; and (2) the VA
was declining to defend the remaining redactions on any basis
save Exemption 6.
This appeal thus comes down to two issues: (1) whether the
VA’s offer of the 157 emails to Yonemoto in his capacity as
an employee mooted his claim to those emails; and (2)
whether the VA can withhold the redacted portions of the
other 9 emails under Exemption 6.
1
Exemption 2 “shields from compelled disclosure documents ‘related
solely to the internal personnel rules and practices of an agency.’ ” Milner,
131 S. Ct. at 1262 (quoting 5 U.S.C. § 552(b)(2)).
2
Exemption 5 permits an agency to withhold “inter-agency or intra-
agency memorandums or letters which would not be available by law to
a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5).
366 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
DISCUSSION
[1] The FOIA’s “core purpose” is to inform citizens about
“what their government is up to.” Dep’t of Justice v. Report-
ers Comm. for Freedom of the Press, 489 U.S. 749, 773, 775
(1989) (citation omitted). This purpose is accomplished by
“permit[ting] access to official information long shielded
unnecessarily from public view and attempt[ing] to create a
judicially enforceable public right to secure such information
from possibly unwilling official hands.” EPA v. Mink, 410
U.S. 73, 80 (1973), superceded by statute on other grounds,
as recognized by Ray v. Turner, 587 F.2d 1187, 1190-91 &
n.9 (D.C. Cir. 1978). Such access, in turn, will “ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted).
[2] At the same time, the FOIA contemplates that some
information can legitimately be kept from the public through
the invocation of nine “exemptions” to disclosure. See 5
U.S.C. § 552(b)(1)-(9). The exemptions are discretionary, see
Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979); “are
‘explicitly made exclusive,’ ” Milner, 131 S. Ct. at 1262
(quoting Mink, 410 U.S. at 79)—meaning that information not
falling within any of the exemptions has to be disclosed; “and
must be ‘narrowly construed.’ ” Id. (quoting FBI v. Abram-
son, 456 U.S. 615, 630 (1982)). Given these interpretive pre-
cepts, “[t]hese limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant objective
of the Act.” Dep’t of Interior v. Klamath Water Users Protec-
tive Ass’n, 532 U.S. 1, 7-8 (2001) (citation omitted).
When an agency chooses to invoke an exemption to shield
information from disclosure, it bears the burden of proving
the applicability of the exemption. See Reporters Comm., 489
U.S. at 755. An agency may withhold only that information
to which the exemption applies, and so must provide all “rea-
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 367
sonably segregable” portions of that record to the requester.
5 U.S.C. § 552(b); see Mead Data Cent., Inc. v. Dep’t of Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Because facts in FOIA cases are rarely in dispute, most
such cases are decided on motions for summary judgment, see
Flightsafety Servs. Corp v. Dep’t of Labor, 326 F3d 607, 610
(5th Cir 2003); Department of Justice Guide to the Freedom
of Information Act 803 (2009 ed.).3 To carry their summary
judgment burden, agencies are typically required to submit an
index and “detailed public affidavits” that, together, “identi-
fy[ ] the documents withheld, the FOIA exemptions claimed,
and a particularized explanation of why each document falls
within the claimed exemption.” Lion Raisins v. Dep’t of
Agric., 354 F.3d 1072, 1082 (9th Cir. 2004). These
submissions—commonly referred to as a Vaughn index4—
must be from “affiants [who] are knowledgeable about the
information sought” and “detailed enough to allow court to
make an independent assessment of the government’s claim
[of exemption].” Id. at 1079; see also 5 U.S.C. § 552(a)(4)(B)
(“On complaint, the district court . . . . shall determine the
matter de novo, . . . and the burden is on the agency to sustain
its action.”).
Our review of a grant of summary judgment in a FOIA
case, however, is slightly different than for other types of
cases; in essence, we treat the judgment as if it were a bench
trial: We first determine, de novo, “whether an adequate fac-
tual basis exists to support the district court’s decisions.” Lane
v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008). If
not, we must remand for further development of the record.
See Fiduccia v. Dep’t of Justice, 185 F.3d 1035, 1040 (9th
Cir. 1999). If such a basis does exist, “then the district court’s
conclusions of fact are reviewed for clear error”5—which is
3
Available at http://www.justice.gov/oip/foia_guide09.htm.
4
See Vaughn v. Rosen, 484 F.2d 820, 823-25 (D.C. Cir. 1973).
5
Our cases do not explain why this is so, and one can question whether
it should be. By definition, summary judgment may be granted only when
368 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
the way in which the proceeding is treated like a bench trial—
“while legal rulings, including its decision that a particular
exemption applies, are reviewed de novo.” Lane, 523 F.3d at
1135; see generally Lion Raisins, 354 F.3d at 1078.
I.
We first consider, de novo, whether the VA’s offer of 157
of the disputed emails to Yonemoto in his capacity as a VA
employee mooted his claim to those emails under the FOIA.
See Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565
F.3d 545, 559 (9th Cir. 2009). It did not.
A.
[3] Under the FOIA, a plaintiff’s ability to obtain relief “is
dependent upon a showing that an agency has (1) ‘improp-
erly’; (2) ‘withheld’; (3) ‘agency records.’ ” Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136,
150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). A federal court
can provide a remedy pursuant to the FOIA only “if the
agency has contravened all three components of this obliga-
tion.” Id.; see also Spurlock v. FBI, 69 F.3d 1010, 1015 (9th
Cir. 1995).
[4] As with other types of civil cases, a suit under the
FOIA can be rendered moot by events subsequent to its filing.
The remedy requested here is one typical in a FOIA action:
that the court “enjoin the agency from withholding agency
records and . . . order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C.
there are no disputed issues of material fact, and thus no factfinding by the
district court. See Fed. R. Civ. Proc. 56(c); see generally Rebecca Silver,
Comment, Standard of Review in FOIA Appeals and the Misuse of Sum-
mary Judgment, 73 U. Chi. L. Rev. 731 (2006). We need not pursue the
matter further, however, as we have no occasion in this opinion to review
any district court findings of fact.
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 369
§ 552(a)(4)(B). As we have previously observed, “the produc-
tion of all nonexempt material, ‘however belatedly,’ moots
FOIA claims.” Papa, 281 F.3d at 1013 (quoting Perry v.
Block, 684 F.3d 121, 125 (D.C. Cir. 1982)). That result
obtains because once the defendant agency has fully complied
with the FOIA’s production mandate, the plaintiff is no longer
suffering or threatened with “an actual injury traceable to the
defendant” that is “likely to be redressed by a favorable judi-
cial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (cita-
tion and quotation marks omitted); see also Carter, 780 F.2d
at 1481; Cornucopia Inst., 560 F.3d at 675-76.
[5] To moot a FOIA claim, however, the agency’s produc-
tion must give the plaintiff everything to which he is entitled.
Otherwise, there remains some “effective relief” that can be
provided the plaintiff, and the case is not moot. Siskiyou Reg’l
Educ. Project, 565 F.3d at 559 (citation omitted). A FOIA
claim is not moot, for example, if the agency produces what
it maintains is all the responsive documents, but the plaintiff
challenges “whether the [agency’s] search for records was
adequate.” Nw. Univ. v. Dep’t of Agric., 403 F. Supp. 2d 83,
85-86 (D.D.C. 2005); see also 5 U.S.C. § 552(a)(3)(C)-(D)
(requiring agencies to conduct a search reasonably calculated
to uncover all records responsive to the request). In that situa-
tion, there is still a live controversy regarding whether the
agency is withholding records. See, e.g., Papa, 281 F.3d at
1013.
[6] The district court in this case held that when the VA
offered the 157 emails to Yonemoto in his capacity as its
employee, the agency was no longer withholding those
records within the meaning of 5 U.S.C. § 552(a)(4)(B), and
the claim was therefore moot. See Yonemoto III, 2009 WL
5033597, at *4. But the district court’s premise regarding the
reach of § 552(a)(4)(B) was wrong, making its mootness con-
clusion wrong as well. Under the FOIA, Yonemoto was enti-
tled to the records unencumbered by restrictions on further
use or dissemination. Access as a VA employee entails
370 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
restrictions on dissemination, and so does not provide the
access granted by the FOIA.
As to the first point, as the Department of Justice recog-
nizes, “it is well settled that it is not appropriate for a court
to order disclosure of information to a FOIA requester with a
special restriction, either explicit or implicit, that the requester
not further disseminate the information received.” Depart-
ment of Justice Guide to the Freedom of Information Act 721
(footnote omitted). This principle derives from the under-
standing that “FOIA provides every member of the public
with equal access to public documents and, as such, informa-
tion released in response to one FOIA request must be
released to the public at large.” Forest Serv. Emps. for Envtl.
Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 (9th Cir.
2008). For that reason, the “FOIA does not permit selective
disclosure of information only to certain parties[.] . . . [O]nce
the information is disclosed to [one requester], it must also be
made available to all members of the public who request it.”
Maricopa Audubon Soc’y. U.S. Forest Serv. [“Maricopa I”],
108 F.3d 1082, 1088 (9th Cir. 1997). Because that is the case,
restrictions on FOIA releases to A on the condition that she
not share it with B, C, or D would have only the effect that
B, C, or D would have to make their own, identical FOIA
requests of the agency, in which case they would be entitled
to the same information A received.
The case law does not sanction such redundancy. Instead,
it recognizes that “if the information is subject to disclosure,
it belongs to all.” Nat’l Archives & Records v. Favish, 541
U.S. 157, 172 (2004). As each release is one to the public at
large, each release allows A, the recipient, to provide the
information to B, C, and D if she so chooses. Thus, an agency
does not comply with the FOIA when it produces records sub-
ject to restrictions on how those records may be used. See
Schiffer v. FBI, 78 F.3d 1405, 1411 (9th Cir. 1996); see also
Maricopa I, 108 F.3d at 1088 n.5. That is why “[t]here is no
mechanism under FOIA for a protective order allowing only
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 371
the requester to see whether the information bears out his the-
ory, or for proscribing its general dissemination.” Favish, 541
U.S. at 174.
[7] As to the second consideration, there is no question that
the VA’s offer of the 157 emails to Yonemoto in his capacity
as an employee was an attempt to do precisely what the FOIA
prohibits—restrict dissemination of the information received.
The VA recognized both in an affidavit filed in support of
summary judgment and at oral argument before the district
court that the point of structuring its offer as it did was to
restrict Yonemoto from further disseminating the records.
Indeed, the Veterans Health Administration Handbook
imposes extensive restrictions, backed by the threat of disci-
pline, on VA employees’ use and disclosure of internal VHA
information. See Dep’t of Veterans Affairs, Veterans Health
Admin., VHA Handbook 1605.1 (May 17, 2006).6
[8] Because its offer of disclosure was conditioned on
Yonemoto receiving the records subject to restrictions, the
VA was still withholding the requested records within the
meaning of the FOIA. Yonemoto’s claim therefore was not
moot, and the district court should have proceeded to deter-
mine whether the VA was withholding the records “improper-
ly.” Kissinger, 445 U.S. at 150 (quoting 5 U.S.C.
§ 552(a)(4)(B)).
B.
The VA concedes, as it must, that the FOIA prohibits dis-
closures subject to restrictions on dissemination, but makes
two arguments as to why Yonemoto’s claim for the 157
emails offered to him in his capacity as a VA employee is
moot. Neither is persuasive.
6
Available at http://www.va.gov/vhapublications/ViewPublication.
asp?pub_ID=1423.
372 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
1.
First, the VA maintains that because Yonemoto has not
identified a way in which he wanted to use the information
that would have contravened the employee handbook, the
restrictive terms of the VA’s offer of disclosure would not
have effectively limited his use of the information.
This proposition misses the mark entirely. A requestor’s
purpose for requesting the documents or his intended use of
the information sought does not matter under the FOIA. As
the Supreme Court has explained:
FOIA is often explained as a means for citizens to
know “what their Government is up to.” This phrase
should not be dismissed as a convenient formalism.
It defines a structural necessity in a real democracy.
The statement confirms that, as a general rule, when
documents are within FOIA’s disclosure provisions,
citizens should not be required to explain why they
seek the information. A person requesting the infor-
mation needs no preconceived idea of the uses the
data might serve. The information belongs to citizens
to do with as they choose.
Favish, 541 U.S. at 171-72 (citation omitted). Thus, it doesn’t
matter what Yonemoto wanted to do with the records
obtained through FOIA; his ostensible purpose, assuming he
even had one in advance, has no bearing on whether or not his
claim is moot. See id.; Dep’t of Def. v. Fed. Labor Rel’ns
Auth., 510 U.S. 487, 496 (1994); Reporters Comm., 489 U.S.
at 772. “A party’s rights under FOIA ‘are neither increased
nor decreased by reason of the fact that it claims an interest
. . . greater than that shared by the average member of the
public.’ ” Maricopa I, 108 F.3d at 1088 n.5 (quoting NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (alter-
ation in original)).
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 373
2.
The VA’s second, related argument is based on the “law of
the case” doctrine. Under this doctrine, “a court is ordinarily
precluded from reexamining an issue previously decided by
the same court, or a higher court, in the same case.” United
States v. Bad Marriage, 439 F.3d 534, 538 (9th Cir. 2006)
(quoting Minidoka Irrigation Dist. v. Dep’t of Interior, 406
F.3d 567, 573 (9th Cir. 2005)); see also Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 815-16 (1988). The
VA argues that Yonemoto “ignores the binding effect of this
Court’s prior mootness ruling” in Yonemoto II, by failing to
explain “how the putative restrictions on his use of the 157
emails . . . would have been more onerous than the restrictions
on his use of materials produced in his EEOC case—that is,
materials provided to him in his capacity as a VA employee
allegedly aggrieved by unlawful discrimination.”
The argument is fatally flawed. It ignores the default rule
concerning discovery, which is that “the fruits of pre-trial dis-
covery are, in the absence of a court order to the contrary, pre-
sumptively public.” Phillips ex rel. Estates of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (citation
omitted). Given that presupposition, the Yonemoto II panel,
absent a basis for thinking otherwise, would have had no rea-
son to expect that Yonemoto was restricted in disseminating
the EEOC discovery material, and so cannot be taken to have
approved any restriction. In fact, nothing in the written filing
notifying the Yonemoto II panel that Yonemoto had received
the disputed records through the EEOC discovery process
hinted that Yonemoto’s dissemination of these records might
be restricted—and, to this day, the VA presents no reason to
conclude that Yonemoto is so restricted. Further, the Yone-
moto II disposition, contains no suggestion of that possibility.
See 305 F. App’x at 333-34.
In sum, whether the VA’s offer to produce the records sub-
ject to restrictions otherwise applicable to employees com-
374 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
plies with the FOIA, therefore, was not “previously decided”
by this court. Bad Marriage, 439 F.3d at 538. The VA’s invo-
cation of the law of the case is therefore unavailing.
3.
As an alternative to mootness, the VA advances two argu-
ments as to why we should nonetheless affirm the district
court’s grant of summary judgment regarding the 157 emails.
We will consider those arguments, as “[w]e can affirm the
decision of the district court on any ground supported by the
record, even one not relied on by that court.” Nw. Envtl. Def.
Ctr. v. Brown, 640 F.3d 1063, 1080 (9th Cir. 2011).
First, citing the general rule that we “will not consider an
issue raised for the first time on appeal,” Greger v. Barnhart,
464 F.3d 968, 973 (9th Cir. 2006), the VA argues that Yone-
moto “waived any claim of error with respect to these emails
by not specifically addressing the VA’s claimed exemptions.”
But that contention is simply not true. Yonemoto argued
before the district court that the VA’s Vaughn index was
insufficiently detailed to carry the agency’s burden to justify
redactions made to the 157 emails, and that the VA applied
each exemption too broadly. He waived nothing.
The VA also asserts that because Yonemoto had the oppor-
tunity to view the emails in an unredacted form (but not to
obtain copies for unrestricted use), he cannot now complain
that the VA’s Vaughn index was insufficient to justify the
redactions. We reject the VA’s argument, which ignores a
cardinal rule of FOIA litigation: “FOIA’s ‘strong presumption
in favor of disclosure’ means that an agency that invokes one
of the statutory exemptions . . . bears the burden of demon-
strating that the exemption properly applies to the docu-
ments.” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973
(9th Cir. 2009) (quoting Dep’t of State v. Ray, 502 U.S. 164,
173 (1991)). The VA’s argument, in essence, is that permit-
ting Yonemoto to see the unredacted documents shifted the
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 375
burden to him to disprove the propriety of particular redac-
tions.
The FOIA does not permit the agency to shift its burden in
this manner, as “the burden is on the agency to sustain its
action.” 5 U.S.C. § 552(a)(4)(B). Nor does the FOIA permit
the agency to avoid so easily its obligation to justify its FOIA
decisions to the district court, which is statutorily required to
undertake a de novo assessment. See id.; Lion Raisins, 354
F.3d at 1082-83.
C.
[9] In summary, Yonemoto’s FOIA claim to the 157
emails was not rendered moot by the VA’s offer to produce
the emails to him in his capacity as a VA employee. Nor are
the VA’s other arguments for affirmance persuasive. We
therefore remand to the district court for it to rule on the pro-
priety of the VA’s claimed exemptions in the first instance.
II.
[10] Aside from the 157 emails as to which the district
court declared the FOIA dispute moot, nine of the twelve
emails viewed by the district court in camera remain con-
tested. All of the redactions are now defended as covered only
by Exemption 6. The district court held that all of the with-
held information was properly subject to Exemption 6. See
Yonemoto III, 2009 WL 5033597, at *6-*8.
A.
[11] Exemption 6 provides that an agency may withhold
“personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). Yonemoto has not
argued that the emails here are not “similar files.” Thus, the
only question before us is whether the VA has proven that the
376 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
redacted information, if disclosed, “would constitute a clearly
unwarranted invasion of personal privacy.” Id. Making this
determination requires us “to balance the individual’s right of
privacy against the basic policy of opening agency action to
the light of public scrutiny.” Ray, 502 U.S. at 175 (quotation
marks omitted)
The first step in evaluating whether Exemption 6 applies is
ensuring that disclosure implicates a personal privacy interest
that is “nontrivial,” Forest Serv. Emps., 524 F.3d at 1026
(citation omitted), or, put differently, “more than . . . de
minimis.” Lahr, 569 at 977. That determination involves
assessing both the nature of the privacy interest at stake and
the likelihood that disclosure would lead to its invasion.
As for the nature of the privacy interest at stake, the “per-
sonal privacy” contemplated by Exemption 6, as well as its
law-enforcement counterpart, Exemption 7(C),7 “encompass-
[es] the individual’s control of information concerning his or
her person,” Reporters Comm., 489 U.S. at 763, but it is not
7
Exemption 7(C) allows withholding “records or information compiled
for law enforcement purposes, but only to the extent that the production
of such law enforcement records . . . could reasonably be expected to con-
stitute an unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C).
As both it and Exemption 6 require balancing the public interest with “per-
sonal privacy,” cases interpreting the interest in “personal privacy” with
regard to one of the two exemptions are useful in the context of the other.
See FCC v. AT&T Inc., 131 S. Ct. 1177, 1184-85 (2011) (looking to cases
construing Exemption 6 to hold that the “personal privacy” protected by
Exemption 7(C) does not encompass corporations’ privacy); see also Fav-
ish, 541 U.S. at 165-66 (comparing and contrasting Exemptions 6 and
7(C)); Lahr, 569 F.3d at 974 (same). If a nontrivial privacy interest is at
stake, however, Exemption 7(C) requires a somewhat higher showing of
public interest to overcome it than does Exemption 6. The latter requires
the agency to show that releasing the information “would constitute a
clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6)
(emphases added), whereas Exemption 7(C) states permits withholding
law enforcement records if their release “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,” id.
§ 552(b)(7)(C) (emphasis added). See generally Lahr, 569 F.3d at 974.
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 377
limited to just that type of information. See Favish, 541 U.S.
157, 165 (2004) (“[T]he concept of personal privacy under
Exemption 7(C) is not some limited or ‘cramped notion’ of
that idea.” (citation omitted)). Favish, for example, held that
individuals had privacy rights that would be implicated by
releasing the “death-scene photographs” of a family member
who had committed suicide. See id. at 164-67. Although
emphasizing that the right to privacy under Exemption 7(C)
is not coterminous with the common law and the Constitu-
tional conceptions of privacy, see id. at 170, Favish inter-
preted the term “personal privacy” as reflecting congressional
intent to protect “against public intrusions long deemed
impermissible under the common law and in our cultural tra-
ditions.” Id. at 167.
[12] At the same time, the threat to personal privacy occa-
sioned by disclosure must be nonspeculative. “The legislative
history is clear that Exemption 6 was directed at threats to pri-
vacy interests more palpable than mere possibilities.” Dep’t of
Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976); accord
Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C.
Cir. 1987). As Rose indicates, that a threat to privacy is con-
ceivable on some generalized, conjectural level is not suffi-
cient to justify evoking Exemption 6. See 425 U.S. at 380
n.19.
If, at step one, the agency fails to establish that disclosing
the contested information would lead to the invasion of a non-
trivial personal privacy interest protected by Exemption 6, the
FOIA demands disclosure, without regard to any showing of
public interest. See, e.g., Assoc. Press v. Dep’t of Def., 554
F.3d 274, 291 (2d Cir. 2009); Multi Ag Media LLC v. Dep’t
of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008). If, on the
other hand, the agency does make the requisite threshold
showing regarding a privacy interest, the public interest in
disclosure becomes relevant. Another, perhaps more accurate
way of looking at the matter is to say that, at step one, we
look to see whether there is any privacy interest that out-
378 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
weighs the generalized public interest in disclosure that
inheres in the FOIA itself, and which is reflected in the pre-
sumption in favor of disclosure; if so, we then look (at step
two) to see if the public interests in disclosing the particular
information requested outweigh those privacy interests.
At step two we employ a balancing approach: We place the
privacy interests identified at the first step on one end of the
balance, and the public interest favoring disclosure on the
other. But the public interest to be considered in this balance
is circumscribed: “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 per-
formance 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). In assess-
ing the public interest in disclosure, we examine whether “the
public interest sought to be advanced is a significant one”—
one “more specific than having the information for its own
sake”—and whether the requested information “is likely to
advance that interest.” Favish, 541 U.S. at 172. Again, the
plaintiff’s particular reasons for requesting the information
are irrelevant. See Forest Serv. Emps., 524 F.3d at 1025.
After taking account of the relevant privacy and public
interests, the ultimate issue with regard to the application of
Exemption 6 is whether, in light of the public interest that
would be served by disclosure, the accompanying invasion of
privacy would be “clearly unwarranted.” 5 U.S.C.
§ 552(b)(6). Answering that question necessarily requires the
exercise of judgment. We exercise that judgment mindful that
“[i]n the [FOIA] generally, and particularly under Exemption
6, there is a strong presumption in favor of disclosure that
must be indulged . . . by the courts.” United Ass’n of Journey-
men & Apprentices of the Plumbing & Pipefitting Indus.,
Local 598 v. Dep’t of the Army, Corps of Eng’rs, 841 F.2d
1459, 1463 (9th Cir. 1988), abrogated on other grounds by
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 379
Reporters Comm., 489 U.S. at 771. “[U]nder Exemption 6,
the presumption in favor of disclosure is as strong as can be
found anywhere in the [FOIA].” Wash. Post Co. v. Dep’t of
Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982).
B.
[13] We begin the Exemption 6 analysis by evaluating, de
novo, whether the district court had an adequate factual basis
to undertake the balancing of interests described above. See
Lane, 523 F.3d at 1135. We look first to the VA’s Vaughn
index to ascertain whether it meets the standard set forth in
our precedent. See id. Such an index must identify each with-
held document, describe its contents to the extent possible,
and give “a particularized explanation of why each document
falls within the claimed exemption.” Lion Raisins, 354 F.3d
at 1082. The Vaughn index need not, of course, “disclose
facts that would undermine the very purpose of its withhold-
ing,” id. at 1084, but it “should reveal as much detail as possi-
ble as to the nature of the document, without actually
disclosing information that deserves protection.” Oglesby v.
U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
If the agency is unable to carry its burden with public affida-
vits, it may attempt to do so with in camera affidavits, but
only after it has attempted “to justify FOIA withholdings in as
much detail as possible on the public record.” Lion Raisins,
354 F.3d at 1084.
[14] Here, the VA’s Vaughn index falls short with regard
to many of the records. We discuss how the Vaughn index is
deficient below, in the context of each contested email.
[15] The district court was able to overlook the index’s
deficits by skipping over the first step of the Exemption 6
analysis, at which it should have determined, on a record-by-
record basis, whether a nontrivial privacy interest was at
stake. Instead, after examining the emails in camera, the dis-
trict concluded, seemingly categorically rather than on an
380 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
individualized basis, that their authors “have a personal pri-
vacy interest in the thoughts and beliefs contained in their
communications.” When it then concluded that “the public
has no legitimate interest in the redacted portions of the
emails,” the ultimate legal question, so framed, was an easy
one for the district court: “After balancing the nonexistent
public interest in disclosure against the [personal privacy]
interest protected by Exemption 6, the Court concludes that
disclosure of the redacted information would constitute a
clearly unwarranted invasion of privacy.”
[16] Insofar as the district court made a categorical privacy
judgment, it erred. Such categorical determinations are rarely
proper under the FOIA; they are appropriate only in those cir-
cumstances in which disclosing a type of record defined by its
content, such as an identifiable individual’s rap sheet, will
invariably result in an invasion of personal privacy. See
Reporters Comm., 489 U.S. at 776-80.
An email, however, is defined not by its content but by its
mode of transmission. We could no more conclude that
releasing emails would inevitably invade someone’s privacy
in the FOIA sense than we could conclude that disclosing all
letters, faxes, telegrams, or text messages would do so. With
regard to all these modes of communication, the privacy inter-
ests at stake, “the public interest in disclosure, and a proper
balancing of the two, will vary depending upon the content of
the information and the nature of the attending circum-
stances.” Wiener v. FBI, 943 F.2d 972, 985 (9th Cir. 1991)
(emphasis added, footnote omitted).8
8
We note that the district court was incorrect in broadly characterizing
the emails at issue as concerning “private citizens.” By all indications, the
emails were to and from VA employees in their capacity as such. This dif-
ference is not necessarily dispositive, but it is relevant. See Lissner v. U.S.
Customs Serv., 241 F.3d 1220, 1223 (9th Cir. 2001) (“It is true that indi-
viduals do not waive all privacy interests in information relating to them
simply by taking an oath of public office, but by becoming public offi-
cials, their privacy interests are somewhat reduced.” (citation omitted)).
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 381
[17] Moreover, for most of the records at issue, whether
the privacy interest at stake is more than de minimis is
entirely unclear from the public record; for many of the
records, even in camera inspection is not sufficiently illumi-
nating to allow us to make the privacy determination. Disclo-
sure of most of these records may indeed constitute a
nontrivial invasion of personal privacy, but the VA has yet to
articulate why. This evidentiary gap requires us to speculate
as to the privacy interest that would be affected by disclosure.
We “should not be required to speculate on the precise rela-
tionship between each exemption claim and the contents of
the specific document[s].” Wiener, 943 F.3d at 988 (quoting
Van Bourg, Allen, Weinberg & Roger v. NLRB, 656 F.2d
1356, 1358 (9th Cir. 1981) (alteration in original)). That we
must do so here is a sure sign either that the factual record is
incomplete or, if the record is complete, that the VA cannot
carry its burden of justifying the exemption.
[18] We therefore remand with regard to those records as
to which, for the reasons explained below, the record lacks a
sufficient factual basis upon which to evaluate the agency’s
claimed exemption. On remand, the district court should per-
mit supplementation of the factual record; if, after that oppor-
tunity, the court still must speculate as to the privacy interest
at stake, the VA has failed to carry its burden, and the record
must be disclosed. See Fiduccia, 185 F.3d at 1040; Wiener,
943 F.2d at 979.
Email 29
The Vaughn index states that this is an email between two
particular individuals, and that the redacted portion “describes
[the] medical illness of an identified employee.” This terse
description suggests that a substantial privacy interest is at
9
Like the district court, we refer to each email by the number used in
the VA’s index. Emails 1, 5, and 7 are no longer in dispute.
382 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
stake. But without knowing more context, it is impossible to
evaluate whether there is any public interest in disclosure.
[19] Examining the document in camera, however, we are
satisfied that the information was properly withheld under
Exemption 6. Only a few words are redacted from this email.
The rest of the email make clear that the only information
omitted was the reason why a named VA employee was
absent from work. “Information regarding illness or health is
personal, and falls under the scope of Exemption 6.” Dobron-
ski v. FCC, 17 F.3d 275, 278 (9th Cir. 1994). Yonemoto has
not articulated a particularized public interest in knowing the
type of medical illness causing this employee’s absence. We
therefore affirm the application of Exemption 6 to Email 2.
Email 3
According to the Vaughn index, the redacted portion of this
email “describes conditions that would disqualify [the recipi-
ent’s] mother from participation in a particular research proj-
ect.” This description, alone, is insufficient to carry the
agency’s burden. We have no idea what the “research project”
is or what its requirements are. For all we know from the
Vaughn index, the disqualifying condition is height, hair
color, or handedness; the revelation of any of those conditions
which would likely entail only a de minimis privacy interest.
[20] Examining the email itself, we learn that a two-line
block of text was redacted above a forwarded email about a
clinical trial for a medication to treat memory impairment.
The trial has enumerated requirements relating to age, health,
and living conditions. There is a nontrivial privacy interest in
the particular reasons that an identifiable person does not
meet those requirements. Id.; Multnomah Cnty. Med. Soc’y v.
Scott, 825 F.2d 1410, 1415-16 (9th Cir. 1987). Yonemoto has
not identified a particularized public interest in disclosure,
and we see none. Therefore, the privacy interest prevails, and
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 383
the VA may withhold the reasons the recipient’s mother does
not meet the trial’s requirements under Exemption 6.
There is no reason, however, to withhold the first sentence
of the redacted portion of this email. It does not relate to the
concerns addressed above and is, in fact, entirely mundane.
Most importantly, the first sentence of this email is “reason-
ably segregable” from the portions of the record that may be
permissibly withheld; the VA must therefore disclose it. See
5 U.S.C. § 552(b); Pacific Fisheries, Inc. v. United States,
539 F.3d 1143, 1149-50 (9th Cir. 2008).
Email 4
The redacted portion of Email 4 is described in the Vaughn
index as “a discussion concerning the location of an identified
EEO complainant and access to her records in the VA organi-
zational structure. As an aside, the complainant is not the
plaintiff.” Here, too, the VA fails to provide enough informa-
tion to ascertain the privacy interest at stake. We do not even
know, for example, what is meant by “location.” The term
could refer to something geographic (a home or office), in
which case the level of specificity would matter (street
address, city, state, etc.). Or it could refer to the employee’s
position within the organization—for example, the subdivi-
sion of the VA in which she works, or her job title. The lack
of detail in the Vaughn index means we can only speculate as
to why disclosing the information would invade a nontrivial
privacy interest. See Wiener, 943 F.3d at 988.
[21] Examining the record in camera, moreover, we con-
clude that the vast majority of it cannot be withheld under
Exemption 6. Although there are aspects of this record that
might cause “embarrassment, shame, stigma, and harass-
ment,” legitimate privacy concerns under Exemption 6, For-
est Serv. Emps., 524 F.3d at 1026, disclosure would invade
those privacy interests only if the information is linked to a
particular, identifiable individual. Ray held that disclosure of
384 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
“highly personal information”— there, “marital and employ-
ment status, children, living conditions and attempts to enter
the United States”— “constitute[d] only a de minimis invasion
of privacy” if not “linked publicly with particular, named
individuals.” 502 U.S. at 175-76. Examining the record in
camera, we cannot tell what information, if disclosed, would
reveal the individual’s identity.10 We therefore remand for the
district court to reconsider its ruling as to Email 4 after the
record is supplemented.
Emails 6, 8, & 9
The Vaughn index describes the redacted portions of
Emails 6 and 8 as a discussion “concerning [the recipient’s]
interest in another position and his responses as to why he is
not interested.” Email 9 concerns “an alleged premature
rumor concerning who was selected for the Director for the
VA in Hawaii.” These descriptions are entirely inadequate for
a de novo review of the agency’s claim of exemption.
After viewing the document in camera, we still cannot
ascertain whether disclosure would impinge on nontrivial per-
sonal privacy interests. We therefore remand for the district
court to reconsider these emails after further factual develop-
ment, including balancing the nontrivial personal privacy
interest, if any, against the public interest in evaluating the
performance of public employees and the selection process
for governmental positions.
Email 10
Email 10, according to the Vaughn index, involves an
employee “air[ing] complaint[s] about [an]other employee she
works with,” and responses from others regarding “working
to improve the issue.” This description suggests a substantial
10
For example, the email contains a number of acronyms with which we
have no familiarity and about which the record is silent.
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 385
privacy interest but omits the details necessary to evaluate the
public interest in disclosure. Depending on the nature of the
complaint, for example, as well as how VA management han-
dled it, there may be a particularized public interest in disclo-
sure. See, e.g., Favish, 541 U.S. at 172-73; Lissner, 241 F.3d
at 1223-24; Dobronski, 17 F.3d at 178-79.
Reviewing the email in camera, we conclude that the email
was properly withheld. Disclosing its contents, comprised of
complaints from one VA employee about the personality of
another, would cause significant embarrassment to both the
email’s author and its subject. See Forest Serv. Emps., 524
F.3d at 1026. Moreover, disclosing these relatively petty com-
plaints would reveal nothing about the inner workings of the
agency. See Bibles, 519 U.S. at 355-56. Accordingly, we
affirm withholding Email 10 under Exemption 6.
Email 11
The VA’s Vaughn index states that Email 11 has two sub-
jects. The first is mundane (one person’s “son’s college
schedule and what her daughter is doing”), while the second
is more substantive (“concerns about the Honolulu VA having
to pay from its budget the expenses for employees relocating
from or back to the mainland”). The Vaughn index principally
justifies the redactions in terms of Exemption 5, which the
VA has abandoned on appeal, and mentions Exemption 6 only
in passing.
Turning to the document in camera, we hold that nearly all
of this document should be released. There may be a suffi-
cient threat to personal privacy to justify redacting the names
of particular individuals discussed in the email, a question
which we leave to the district court on remand. But the pri-
vacy interest in the remainder of the email is de minimis at
best. Additionally, there is a strong public interest in the pri-
mary substance of this email: how much the Honolulu VA has
to pay to relocate employees it hires from other locales (pre-
386 YONEMOTO v. DEP’T OF VETERANS AFFAIRS
sumably, the mainland), and the possible effects of those
incentives on hiring decisions. See Bibles, 519 U.S. at 355-56;
cf. Dobronski, 17 F.3d at 178-79. The redacted portions of
Email 11, therefore, could not be withheld entirely.
Email 12
The final email is described as a discussion between a VA
employee and a workers’ compensation expert regarding the
“timeliness in responding to a Department of Labor letter and
thoughts about how to address this in the future.” The discus-
sion apparently concerns “an employee from an identified ser-
vice,” though we do not know what that “service” is or
whether the employee is identified by name.
An in camera evaluation tells us little more. The subject
line contains a person’s name, but we do not know whether
that person is a workers’ compensation claimant, a healthcare
provider, or someone else entirely. If it is the name of a claim-
ant, moreover, it appears unlikely that the rest of the informa-
tion could be linked to that person were the name redacted.
On the other hand, there is a particularized public interest in
disclosure, as the email appears to be complaining about how
and why workers compensation matters are handled ineffi-
ciently. See Bibles, 519 U.S. at 355-56. We remand to the dis-
trict court for it to reconsider this email after the VA provides
a more detailed Vaughn index.
CONCLUSION
Yonemoto’s claim as to the 157 emails was not mooted by
the VA’s offer to provide him the records in his capacity as
its employee. We remand for the district court to consider the
VA’s claimed exemptions as to those emails in the first
instance. “After receiving an adequate Vaughn index and con-
ducting any additional proceedings the district court deems
necessary on remand,” it should “state in reasonable detail the
YONEMOTO v. DEP’T OF VETERANS AFFAIRS 387
reasons for its decision as to each document in dispute.” Wie-
ner, 943 F.2d at 988.
[22] As to the VA’s application of Exemption 6 to the nine
in camera emails, we vacate the district court’s decision and
remand for proceedings consistent with this opinion.11 Each
side shall bear its own costs on appeal. See Fed. R. App. P.
39(a)(4).
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART AND REMANDED.
11
At the appropriate time, the district court should also consider Yone-
moto’s eligibility for and entitlement to attorneys’ fees and litigation costs
at under 5 U.S.C. § 552(a)(4)(E). As the VA conceded at oral argument,
the amendments to the FOIA made by the Openness Promotes Effective-
ness in our National (“OPEN”) Government Act of 2007, Pub. L. No. 110-
175, 121 Stat. 2524, apply to this case.