Lane v. Dept of Interior ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELINDA J. LANE, 
Plaintiff-Appellant,
v. No. 06-15191
DEPARTMENT OF THE INTERIOR; GALE
A. NORTON, in her professional  D.C. No.
CV-04-01287-NVW
capacity as Secretary of the
OPINION
Interior; FRAN MAINELLA, in her
professional capacity as Director,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
November 7, 2007—San Francisco, California
Filed May 2, 2008
Before: Mary M. Schroeder, Cynthia Holcomb Hall and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Hall
4837
LANE v. DEPARTMENT OF THE INTERIOR 4841
COUNSEL
Randolph B. Neal, Law Office of Randolph B. Neal, Idaho
Falls, Idaho, for the plaintiff-appellant.
James C. Hair, Jr., and Mark Wenker, Assistant United States
Attorneys, Phoenix Arizona, for the defendants-appellees.
OPINION
HALL, Circuit Judge:
Plaintiff Melinda Lane appeals the district court’s summary
judgment in favor of the United States Department of the Inte-
rior in her action for violations of the Freedom of Information
Act and Privacy Act. She also appeals the district court’s
denial of her discovery request and motion to seal records.
We affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Introduction
This case stems from a dispute between Melinda Lane, a
former park ranger, and her supervisors at the National Parks
Service (NPS), a division of the Department of the Interior.
Lane, who worked at the Lake Mead National Recreation
Area, was promoted to a position with law enforcement duties
in August of 2001, and experienced employment problems
soon after. On October 21, 2001, Chief Park Ranger Dale
Antonich received a letter from a citizen complaining that
Lane acted unprofessionally when she stopped him for a traf-
fic violation. Lane disputed certain aspects of the complaint,
but agreed to undertake a plan to improve her skills. In March
of 2002, Lane used profane language to describe some of her
instructors at the Federal Law Enforcement Training Center,
4842 LANE v. DEPARTMENT OF THE INTERIOR
and was placed on disciplinary probation as a result. A meet-
ing was held between Lane and her supervisors to discuss
concerns about her performance in June of 2002. In atten-
dance were Antonich, William Shott (Lane’s immediate
supervisor), District Ranger Mary Hinson (Lane’s second
level supervisor), and Deputy Chief Ranger Kevin Hendricks.
During the meeting, Antonich told the following story:
I watched us build a team at [Death Valley National
Park] and I had no problem going in and taking
down two of the deadliest people I’ve ever been
around. And you know, we weren’t even naughty
until the chief ranger lost his temper. He started
being naughty. We were in a position where we
thought we were gonna get killed. We were missing
a third guy with a high powered rifle. It was time to
go from sir will you give me this to putting a black
hood on his head and putting a gun to the back of
their head, and cocking back the hammer and saying
now I am gonna give you one chance to tell me the
truth or I am gonna kill you. That is an example of
how far it can go, and you don’t want to go that far.
After the meeting, Hinson noticed that Lane had a tape
recorder, and informed Antonich. Antonich sent Lane an
email the next day stating that any recording from the meeting
should be turned in or destroyed, and threatening legal action
against her if she failed to comply.
B. Investigation into Lane
Shortly after this meeting, another citizen filed a complaint
with the NPS regarding Lane’s conduct during a traffic stop.
As a result, Hendricks requested that the Regional Office con-
duct an internal investigation into Lane’s integrity. Special
Agent Eric Inman conducted the investigation. He inter-
viewed Hinson, who stated that she had viewed Lane’s Offi-
cial Personnel File, and noticed discrepancies in Lane’s files
LANE v. DEPARTMENT OF THE INTERIOR 4843
regarding her education. Inman then interviewed Lane, who
admitted that she had not earned a college degree, contrary to
the information in her file.
In total, Inman found that Lane had made twenty-four false
entries on six separate employment applications. These find-
ings led the Lake Mead Superintendent to direct Antonich to
convene a Board of Inquiry to evaluate Lane. The evaluation
concluded that Lane had falsified documents, and recom-
mended revoking her law enforcement commission. The NPS
Regional Director agreed and notified Lane that her commis-
sion was revoked on February 12, 2003. Lane unsuccessfully
appealed this decision and resigned two months later.
C. FOIA Request for Documents Relating to Antonich
Investigation
On November 22, 2002, Lane sent a letter to the United
States Attorney General recounting her description of
Antonich’s story and requesting that the Department of Jus-
tice investigate Antonich. The Justice Department forwarded
the letter to the Department of the Interior Office of the
Inspector General, which conducted an investigation into
Antonich. The results of the investigation were forwarded to
NPS in July of 2003. In mid-November 2003, the NPS
Regional Director concluded that the report disclosed no evi-
dence supporting the truthfulness of the story Antonich had
told at the June 11, 2002 meeting, no direct relationship
between Lane’s knowledge of the story and the subsequent
administrative action against her, and no reason to discipline
Antonich. The Chief of the NPS Labor and Employee Rela-
tions Branch reached the same conclusion.
On December 26, 2003, Lane filed a Freedom of Informa-
tion Act (FOIA) request for “any and all applicable reports,
responses, documents, or other information pertaining to the
investigation of [Antonich]” to the Department of the Interior
Office of the Inspector General and the NPS. The NPS
4844 LANE v. DEPARTMENT OF THE INTERIOR
Regional Office stated that it did not have a copy of the report
on site, but the Office of the Inspector General located the
report, which included twelve attachments and numbered
approximately 400 pages. On April 2, 2004, FOIA officer
Sandra Evans provided Lane with a redacted copy of the
investigative report as well as Attachment 1 (Lane’s allega-
tions), Attachment 3 (interview of Lane), and Attachment 4
(email to Lane directing her to destroy her recording of the
June 11 meeting). Evans stated that she assumed Lane had
copies of two other attachments to the report (Attachment 2,
the CD containing Lane’s recording of Antonich’s story, and
Attachment 6, Agent Inman’s report on Lane) and that the
seven remaining attachments were being withheld under
FOIA Exemptions 6 and 7(C).1
Lane appealed this response. On June 23, 2004, a Depart-
ment of the Interior appeals officer informed Lane that, based
on a June 8, 2004 legal memorandum from the Solicitor’s
Office of the Department of the Interior, the information in
the Antonich report had been properly withheld pursuant to
FOIA Exemptions 6 and 7(C). A copy of the legal memoran-
dum, which explained why the information had been withheld
under the respective exemptions, was provided to Lane. This
was the final administrative determination involving Lane’s
FOIA requests.
D. Privacy Act Request for Lane’s Personnel Documents
On February 12, 2004, Lane requested from Antonich “all
reports and documentation concerning [her] Board of Inquiry,
investigations, and separation from employment.” Lane sent
1
As discussed in greater detail below, Exemption 6 allows the govern-
ment to withhold personnel files whose disclosure would constitute a
clearly unwarranted invasion of personal privacy. Exemption 7(C) covers
law enforcement records whose disclosure could reasonably be expected
to constitute an unwarranted invasion of personal privacy. 5 U.S.C.
§§ 552(b)(6); 552(b)(7)(C).
LANE v. DEPARTMENT OF THE INTERIOR 4845
similar letters to the NPS and the Lake Mead Superintendent
on March 6 and 29, 2004, requesting all of her personnel files
pursuant to the Privacy Act.
FOIA Agent Holly Bundock was responsible for Lane’s
Privacy Act request. She conducted the search for responsive
documents, and on August 30, 2004, the NPS sent Lane an
itemized list of files and 577 pages of documents.2 Lane
appealed on September 19, 2004, maintaining that responsive
documents existed that had not been provided to her and
requesting to be informed of any destroyed files. Bundock
conducted a second search, contacting persons who might
have relevant documents. All responded that no additional
responsive documents existed in their files, though an
employee from the Federal Law Enforcement Training Center
stated that the Training Center maintains files on all law
enforcement commissioned rangers, including Lane, that con-
tain receipts for guns and badges, law enforcement commis-
sions, and training records. Neither Bundock nor any other
employees knew of any destroyed documents.
E. This Action
Dissatisfied with the government’s response to her FOIA
and Privacy Act requests, Lane filed this action, asserting four
claims against the government. In her first claim, Lane sought
the information redacted from the Antonich report under the
FOIA. The second claim sought Lane’s Board of Inquiry file
and other unspecified files under the Privacy Act (the “access
to records” Privacy Act claim). In her third claim, Lane
alleged the government violated the Privacy Act when Hinson
viewed and disclosed her personnel file (the “improper
access” Privacy Act claim). Last, Lane requested judicial
review of the Board of Inquiry hearing concerning the revoca-
tion of her law enforcement commission.
2
The delay between Lane’s request and receipt of materials was due in
part to disagreements between Lane and Bundock over who would be
responsible for the costs of copying the documents.
4846 LANE v. DEPARTMENT OF THE INTERIOR
The district court deferred Lane’s request for discovery
until after it ruled on the government’s summary judgment
motion. The government moved for summary judgment on all
four claims, and Lane filed a cross-motion on the first and
second claims. The district court granted summary judgment
for the government on the first, third, and fourth counts. It
denied summary judgment on the second claim pending the
delivery of certain files to Lane. Several months later, satis-
fied that the government had provided the files, the court
granted summary judgment for the defendant on that claim as
well. Lane timely appealed the first three claims, as well as
the district court’s delay of discovery and denial of her
request to seal court records containing personal information
about her.
II. DISCUSSION
A. Discovery Claim
Lane argues that the district court erred when it allowed the
government to move for summary judgment before granting
her the opportunity to take discovery. We disagree.
[1] A district court “has wide latitude in controlling discov-
ery, and its rulings will not be overturned in absence of a clear
abuse of discretion.” White v. City of San Diego, 605 F.2d
455, 461 (9th Cir. 1979) (internal quotations omitted). While
ordinarily the discovery process grants each party access to
evidence, in FOIA and Privacy Act cases discovery is limited
because the underlying case revolves around the propriety of
revealing certain documents. Wiener v. FBI, 943 F.2d 972,
977 (9th Cir. 1991). Accordingly, in these cases courts may
allow the government to move for summary judgment before
the plaintiff conducts discovery. See Miscavige v. IRS, 2 F.3d
366, 369 (11th Cir. 1993) (“The court’s denial of discovery
. . . was within [its] discretion. . . . Generally, FOIA cases
should be handled on motions for summary judgment . . . .”);
Nolan v. Dep’t of Justice, 973 F.2d 843, 849 (10th Cir. 1992)
LANE v. DEPARTMENT OF THE INTERIOR 4847
(“[T]he district court acted well within its discretion in defer-
ring discovery so as to determine the propriety of the [Privacy
Act] exemptions.”); Simmons v. Dep’t of Justice, 796 F.2d
709, 711-12 (4th Cir. 1986) (“[T]he district court has the dis-
cretion to limit discovery in FOIA cases and to enter summary
judgment on the basis of agency affidavits . . . .”); see also
Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d
55, 63 (D.D.C. 2001) (“[D]iscovery is not typically a part of
FOIA and Privacy Act cases, and whether to permit discovery
is well within the sound discretion of the district court
judge.”) (citation omitted).
In the instant case, the court was faced with a discovery
request for twenty depositions in four separate cities. The
court not only found the request highly burdensome, but also
noted that Lane appeared to be requesting via discovery “the
very information that is the subject of the FOIA complaint.”3
The court reviewed the case law addressing discovery in
FOIA and Privacy Act cases, as well as the burden the discov-
ery would place on the government and the court, and decided
to delay Lane’s discovery until after it ruled on the govern-
ment’s summary judgment motion. However, it reassured
Lane that she would have the opportunity for discovery if it
was necessary for her response to the government’s summary
judgment motion.
[2] The court’s delay of discovery with respect to Lane’s
FOIA claim and right of access Privacy Act claim was cer-
tainly within its discretion. Courts routinely delay discovery
until after summary judgment in such cases, see Miscavige, 2
F.3d at 369, Nolan, 973 F.2d at 848, Simmons, 796 F.2d at
711-12, and this circuit has affirmed denials of discovery
3
At the discovery hearing, Lane stated that the purpose of her discovery
was to establish that Antonich engaged in proven misconduct, and to
determine the existence of certain personnel documents not provided to
her. This was the same information that she sought to uncover in the
underlying FOIA and Privacy Act litigation.
4848 LANE v. DEPARTMENT OF THE INTERIOR
where, as here, the plaintiff’s requests consisted of “precisely
what defendants maintain is exempt from disclosure to plain-
tiff pursuant to the FOIA.” Pollard v. FBI, 705 F.2d 1151,
1154 (9th Cir. 1983).
[3] Lane’s third claim — that Hinson violated the Privacy
Act by improperly accessing her personnel file — might have
initially warranted discovery. Unlike the FOIA claim or the
access to records Privacy Act claim, the improper access Pri-
vacy Act claim did not revolve around the propriety of dis-
closing certain documents. Nonetheless, we cannot say that
the district court abused its discretion on this claim either. The
district court only delayed Lane’s discovery until after the
government filed its summary judgment motion, and Lane
never requested additional discovery to respond to that motion
under Fed. R. Civ. P. 56(f).4 Because Lane failed to follow the
proper procedures, it was within the district court’s discretion
to rule on the improper access claim at summary judgment as
well. See THI-Haw., Inc. v. First Commerce Fin. Corp., 627
F.2d 991, 994 (9th Cir. 1980) (“THI’s failure to move for a
continuance under Rule 56(f) prevents it from complaining of
the timing of summary judgment in this case. . . . The court
did not err in granting the defendants’ motion prior to any dis-
covery.”); see also British Airways Bd. v. Boeing Co., 585
F.2d 946, 954 (9th Cir. 1978), cert. denied, 440 U.S. 981
(1979) (“The airline can hardly argue at this late date that the
district court abused its discretion in ruling on the summary
judgment motion in light of the fact that [it] failed to pursue
the procedural remedy which the Federal Rules so clearly pro-
vided.”).
4
We recognize that this court has allowed certain motions not formally
denominated as Rule 56(f) requests to raise the issue of additional discov-
ery adequately. See Garrett v. City & County of San Francisco, 818 F.2d
1515, 1518 (9th Cir. 1987). However, Lane’s mentions of discovery in her
opposition papers are insufficient. See Brae Transp., Inc. v. Coopers &
Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (“References in memoranda
and declarations to a need for discovery do not qualify as motions under
Rule 56(f).”).
LANE v. DEPARTMENT OF THE INTERIOR 4849
B. FOIA Claim
Lane argues that the district court erred in holding that the
government was authorized under the FOIA to withhold the
redacted information in the Antonich report. We disagree, and
affirm the district court’s ruling that the government properly
withheld the information under FOIA Exemption 7(C).
[4] In the Ninth Circuit, a two-step standard of review
applies to summary judgment in FOIA cases. Lion Raisins,
Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir.
2004). The court first determines under a de novo standard
whether an adequate factual basis exists to support the district
court’s decisions. Id. If an adequate factual basis exists, then
the district court’s conclusions of fact are reviewed for clear
error, while legal rulings, including its decision that a particu-
lar exemption applies, are reviewed de novo. Id.; Minier v.
CIA, 88 F.3d 796, 800 (9th Cir. 1996); Schiffer v. FBI, 78
F.3d 1405, 1409 (9th Cir. 1996).
1. Adequate Factual Basis
[5] A court may rely solely on government affidavits “so
long as the affiants are knowledgeable about the information
sought and the affidavits are detailed enough to allow the
court to make an independent assessment of the government’s
claim.” Lion Raisins, 354 F.3d at 1079. “If the affidavits con-
tain reasonably detailed descriptions of the documents and
allege facts sufficient to establish an exemption, ‘the district
court need look no further.’ ” Lewis v. IRS, 823 F.2d 375, 378
(9th Cir. 1987) (quoting Church of Scientology of Calif. v.
Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1979)).
[6] If, however, the court finds that the government affida-
vits are “too generalized,” it may examine the disputed docu-
ments in camera to make a “first-hand determination of their
exempt status.” Id. (quoting Church of Scientology, 611 F.2d
at 742). In camera inspection is “not a substitute for the gov-
4850 LANE v. DEPARTMENT OF THE INTERIOR
ernment’s burden of proof, and should not be resorted to
lightly,” due to the ex parte nature of the process and the
potential burden placed on the court. Church of Scientology,
611 F.2d at 743; Pollard, 705 F.2d at 1153-54. However, it
may be appropriate if the “preferred alternative to in camera
review — government testimony and detailed affidavits —
has first failed to provide a sufficient basis for a decision.” Id.
at 1154. In Church of Scientology, this court held that the dis-
trict court’s in camera viewing of the disputed documents, in
combination with “somewhat conclusory” affidavits, consti-
tuted an adequate factual basis, because the “small number of
documents requested, and their relative brevity, made these
cases appropriate instances for exercise of the district court’s
inspection prerogative.” 611 F.2d at 743.
[7] In this case, the government produced only one “some-
what conclusory” affidavit at summary judgment. On its own,
the affidavit of FOIA Officer Sandra Evans may not consti-
tute an adequate factual basis for the court’s decision, because
it merely states that Exemptions 6 and 7(C) apply to the
redacted and withheld documents, and does not identify the
withheld or redacted material. See Wiener, 943 F.2d at 978-79
(affidavits consisting of “boilerplate” descriptions that fail “to
tailor the explanation to the specific document withheld” are
insufficient).5 However, the government also produced the
entire unredacted Antonich report for the district court’s in
camera review. The report’s “relative brevity” — it consisted
of only twelve short attachments — made this case an “appro-
priate instance” for in camera inspection, like in Church of
Scientology. 611 F.2d at 743. Unfortunately, it is unclear from
the record whether the district court in fact reviewed the dis-
puted documents in camera. The court did not reference any
in camera review in its decision, and at oral argument the gov-
5
While the Department of the Interior also produced a more detailed
legal memorandum, the author of the memo did not provide the court with
any affidavit or declaration.
LANE v. DEPARTMENT OF THE INTERIOR 4851
ernment indicated that it did not believe the court had engaged
in an in camera viewing.
[8] Nonetheless, we see no reason to remand in this particu-
lar case. The full record, including the entire Antonich report,
was available to us on appeal, and we have carefully exam-
ined it. Based on our in camera review of the report and de
novo review of the legal questions, we conclude that the dis-
trict court reached the proper result, making remand for the
district court’s possible lack of adequate factual basis unnec-
essary. See Schell v. Dep’t of Health & Human Servs., 843
F.2d 933, 936-43 (6th Cir. 1988). We recognize, though, that
such in camera review is discretionary and is to be rarely
exercised. As the Schell court noted:
[T]he FOIA affidavit submitted to the district court
was too conclusory for a well-informed assessment
of the applicability of [the exemption in question].
. . . It is only because we have exercised our discre-
tion to review in camera the document that we are
prepared to address this exemption. We caution that
such review is rare, and should not be a substitute for
a specific and detailed affidavit setting forth the rea-
sons supporting nondisclosure.
Id. at 940 n.5.
2. De novo review of the FOIA Exemptions
The FOIA reflects “a general philosophy of full agency dis-
closure unless information is exempted under clearly delin-
eated statutory language.” Dep’t of the Air Force v. Rose, 425
U.S. 352, 360-61 (1976) (quoting S. Rep. No. 813, 89th
Cong., 1st Sess., 3 (1965)). Congress set forth nine categories
of documents that are exempt from the FOIA’s disclosure
requirement. Id. at 361. In the instant case, the district court
held that the government properly withheld the redacted infor-
mation under Exemptions 6 and 7(C). We hold that the infor-
4852 LANE v. DEPARTMENT OF THE INTERIOR
mation was properly withheld under Exemption 7(C), and do
not reach whether it might also be protected under Exemp-
tion 6.
[9] Exemption 7(C) protects law enforcement records
whose disclosure “could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C).6 Because it requires the court “to protect, in
the proper degree, the personal privacy of citizens against the
uncontrolled release of information,” the “usual rule that the
citizen need not offer a reason for requesting the information
must be inapplicable.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004). Rather, the court must
“balance the competing interests in privacy and disclosure.”
Id.
[10] We agree with the district court that Antonich has a
privacy interest in the information withheld from Lane as the
subject of “an [agency] investigation that could lead to [his]
discipline or censure.” Hunt v. FBI, 972 F.2d 286, 288 (9th
Cir. 1992). The other NPS personnel interviewed or men-
tioned in the report also have a privacy interest in “not being
associated unwarrantedly with alleged criminal activity.”
Schiffer, 78 F.3d at 1410; see also Kimberlin v. Dep’t of Jus-
tice, 139 F.3d 944, 949 (D.C. Cir. 1998). That the public may
be aware of the allegations against Antonich does not lessen
his privacy interest, because notions of privacy in the FOIA
exemption context encompass information already revealed to
the public. Dep’t of Justice v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 770 (1989); Kimberlin, 139 F.3d
at 949; Schiffer, 78 F.3d at 1410-11.7
6
Lane does not dispute that the Antonich report is a law enforcement
record.
7
Lane argues that Antonich has no privacy interest in the report because
he has made statements on local news channels that he wants the report
released. However, Lane presents no evidence of these purported state-
ments, and even if Antonich consented to disclosure, “courts have long
frowned upon the release of government compiled documents by individ-
ual consent.” Church of Scientology Int’l v. IRS, 995 F.2d 916, 921 (9th
Cir. 1993).
LANE v. DEPARTMENT OF THE INTERIOR 4853
[11] Because the privacy interests of third parties have been
established, Lane must show that “the public interest sought
to be advanced is a significant one” and that “the information
[sought] is likely to advance that interest.” Favish, 541 U.S.
at 172. As the district court found, Lane does not clearly artic-
ulate the public interest in the disclosure of the requested doc-
uments. The public interest may be in exposing the negligence
of the government’s investigation into Antonich, though it
could also be in learning about Antonich’s misconduct itself.
In either case, the public interest is heightened because
Antonich is a high level employee. Hunt, 972 F.2d at 289 (cit-
ing Stern v. FBI, 737 F.2d 84, 94 (D.C. Cir. 1984)). However,
because the interest in disclosure derives from a government
employee’s negligence or misconduct, Lane must provide
more than a “bare suspicion” of agency misconduct; rather,
she must “produce evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety
might have occurred.” Favish, 541 U.S. at 174.8
[12] We agree with the district court that Lane has failed
to carry this burden. She has produced no evidence that the
government acted negligently in investigating the June 11
incident beyond her own suggestion that the investigation was
not sufficiently thorough. And while the recording of
Antonich’s statements at the July 11 meeting could theoreti-
cally “warrant a belief by a reasonable person” that Antonich
himself engaged in improper behavior, Favish, 541 U.S. at
174, the court must look further than the specific reasons for
Lane’s request in evaluating the public interest in disclosure.
Whether disclosure is warranted “must turn on the nature of
the requested document and its relationship to the basic pur-
8
Lane argues that she cannot meet this high standard without discovery.
However, it is within the discretion of the district court to limit discovery
in FOIA cases generally, Simmons, 796 F.2d at 711-12, and Lane cites no
authority supporting a different standard in cases involving Exemption
7(C), which requires plaintiffs to provide some evidence of government
misconduct.
4854 LANE v. DEPARTMENT OF THE INTERIOR
pose of the [FOIA] to open agency action to the light of pub-
lic scrutiny, rather than on the particular purpose for which
the document is being requested.” Reporters Comm., 489 U.S.
at 772 (internal citations omitted). That Lane only seeks the
report of one isolated incident makes it highly unlikely that
disclosure would increase public understanding of govern-
ment activities, because the information she seeks will at most
provide information about Antonich’s actions on one day and
the government’s investigative procedures in this instance —
it will reveal nothing about the activities of the agency as
whole. See Hunt, 972 F.2d at 289 (“The single file sought by
Hunt will not shed any light on whether all such FBI investi-
gations are comprehensive or whether sexual misconduct by
agents is common.”); see also Boyd v. Dep’t of Justice, 475
F.3d 381, 388 (D.C. Cir. 2007) (“[A] single instance of [gov-
ernment misconduct] . . . would not suffice to show a pattern
of government wrongdoing . . . .”).
[13] Thus, because the private interests of Antonich and
others mentioned in the report outweigh the relatively low
public interest in disclosure, we affirm the district court’s rul-
ing that Exemption 7(C) applies to protect the materials the
government withheld from Lane.
C. Right of Access Privacy Act Claim
Lane argues that the government has not provided her with
all of her personnel records pursuant to her Privacy Act
request, and asks us to overturn the district court’s summary
judgment in the government’s favor on this claim. We review
de novo a grant of summary judgment in Privacy Act claims,
Louis v. Dep’t of Labor, 419 F.3d 970, 973 (9th Cir. 2005),
and hold that the district court correctly concluded that the
government conducted an adequate search for Lane’s person-
nel files.
The Privacy Act governs the disclosure of, access to, and
amendment of records on individuals that are maintained by
LANE v. DEPARTMENT OF THE INTERIOR 4855
federal agencies. 5 U.S.C. § 552a. An individual may “gain
access to his [or her] record” upon request, id. § 552a(d)(1),
and a cause of action arises if an agency refuses to comply
with a request, id. § 552a(g)(1)(B). Lane brought her action
under this provision.
[14] In right of access cases, the government need not show
that it produced every responsive document, but only that “the
search for those documents was adequate.” Zemansky v.
Env’t Prot. Agency, 767 F.2d 569, 571 (9th Cir. 1985)
(emphasis in original) (quoting Weisberg v. Dep’t of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984)).9 The search need only
be reasonable, and the government may demonstrate that it
undertook an adequate search by producing “reasonably
detailed, nonconclusory affidavits submitted in good faith.”
Id.
[15] Here, the government produced the affidavit of FOIA
agent Holly Bundock, which explains the search procedures
she used, the staff members she contacted, the files and e-
mails examined, the time spent on various searches, and the
577 pages of documents sent to Lane in response to her
request. Notwithstanding the production of this detailed, good
faith affidavit, the district court initially declined to grant
summary judgment for the government on this claim. Based
on information in Bundock’s affidavit suggesting the exis-
tence of certain files pertaining to Lane at the Federal Law
Enforcement Training Center, the court directed the govern-
ment to search for additional documents at that location. Sat-
isfied with government’s secondary search, the district court
granted summary judgment for the government.10
9
Zemansky discussed the search burden in a FOIA case, but the same
standard applies to Privacy Act cases. See Hill v. U.S. Air Force, 795 F.2d
1067, 1069 n.4 (D.C. Cir. 1986) (per curiam).
10
A Training Center employee was quoted as stating that the Training
Center keeps files on all law enforcement commissioned rangers which
house receipts for guns and badges, law enforcement commissions, and
training records.
4856 LANE v. DEPARTMENT OF THE INTERIOR
No different result is warranted here. Lane contends the
government’s search of the Training Center was inadequate
because it did not produce the files referenced in Bundock’s
declaration. Specifically, she faults the government for inquir-
ing of the Department of Homeland Security rather than the
custodian of the Training Center files in Glynco, Georgia. The
record reveals, however, that the government requested from
Document Manager Billy Spears at the Federal Law Enforce-
ment Training Center, a division of the Department of Home-
land Security in Glynco, Georgia, “all copies of records
possessed by [the Training Center] concerning Melinda J.
Lane.” In response, Spears provided Lane’s Training Center
student file, which included Lane’s transcript and registration,
several exams, and training evaluations. Spears provided an
affidavit stating that he was the custodian of Lane’s student
record from the Training Center, and a cover letter stating that
all information responsive to the request was enclosed.
[16] Together, the government’s original and secondary
responses to Lane’s Privacy Act request constitute an ade-
quate search for Lane’s files. The government’s actions were
“reasonably calculated to uncover all relevant documents,”
Zemansky, 767 F.2d at 571 (internal citations omitted), and it
demonstrated the adequacy of its searches by producing two
separate affidavits, which Lane does not allege are impugned
by bad faith, id. We therefore affirm the district court on this
claim.
D. Improper Disclosure Privacy Act Claim
Lane argues that the district court erred in granting sum-
mary judgment in favor of the government on the improper
disclosure claim because Hinson’s view of her file violated
the Privacy Act. Our de novo review, Louis, 419 F.3d at 973,
reveals that Lane failed to present sufficient evidence to
defeat summary judgment on this claim, and we affirm the
district court.
LANE v. DEPARTMENT OF THE INTERIOR 4857
[17] Lane alleges that Hinson’s review of her Official Per-
sonnel file violated section 552a(b) of the Privacy Act, which
prohibits disclosure of personnel files unless certain excep-
tions apply. 5 U.S.C. § 552a(b). An agency’s improper disclo-
sure gives rise to a cause of action if the Privacy Act violation
caused an adverse effect and the violation was willful or
intentional. 5 U.S.C. § 552a(g)(1)(D); Quinn v. Stone, 978
F.2d 126, 131 (3d Cir. 1992).11 The district court did not
decide whether Hinson’s viewing of Lane’s file in fact vio-
lated the Privacy Act, but instead found that Lane failed to
“state a claim for damages” because she did not plead any
adverse effect or allege willful intent in her Complaint or
Response.
[18] We agree with the district court’s approach. Lane has
not provided evidence in her pleadings, depositions, answers
to interrogatories, or affidavits to show willfulness or dam-
ages. Fed. R. Civ. P. 56(c). Lane points only to her attorney’s
statements at oral argument to establish that Hinson’s pur-
poseful, retaliatory viewing of her file resulted in the adverse
consequence of the loss of her law enforcement commission.
Her complaint arguably alleges willful conduct on Hinson’s
part, but that allegation is unsupported by evidence, and nei-
ther the complaint nor declaration assert that Hinson’s view-
ing of her file resulted in an adverse effect.
[19] Lane’s allegations in her complaint and her attorney’s
statements at oral argument are insufficient to defeat a sum-
mary judgment motion. Fed. R. Civ. P. 56(c); 56(e)(2). More-
over, her attempts to justify her lack of evidence — as due to
the district court’s denial of her discovery request and the
government’s failure to raise the issues of damages and will-
ful intent until its reply brief — are not well taken. While it
is true that the government did not raise the issues of damages
11
The plaintiff must also establish that the information disclosed is a
Privacy Act record and that the agency disclosed the information, Quinn,
978 F.2d at 131. These factors are not in dispute here.
4858 LANE v. DEPARTMENT OF THE INTERIOR
or willful conduct until its reply to Lane’s summary judgment
response, a district court has the discretion to consider an
argument first raised in a reply brief. Glenn K. Jackson, Inc.
v. Roe, 273 F.3d 1192, 1201-02 (9th Cir. 2001). Further, Lane
cannot complain of missed discovery opportunities in light of
her failure to file a Rule 56(f) motion. THI-Hawaii, 627 F.2d
at 994. Therefore, we affirm the district court on this claim.
E. Refusal to seal Lane’s documents
[20] Last, Lane assigns error to the district court’s denial of
her motion to seal her personal records, which were part of
the government’s exhibits. In the district court, she unsuccess-
fully argued the records in question were protected by the Pri-
vacy Act. On appeal, she does not reargue the Privacy Act
point, but for the first time contends that the documents
“might . . . become a vehicle for improper purposes.” Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). The
panel need not consider arguments not before the district
court unless review is necessary to preserve the integrity of
the judicial process, a new issue arose while the appeal was
pending due to a change in the law, or the issue is purely one
of law and does not depend on the factual record below.
Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). None
of these circumstances present themselves here. In any event,
Nixon is inapposite — it involved reporters seeking permis-
sion to copy, sell and broadcast tapes from the Nixon trial, not
a routine motion to seal records. 435 U.S. at 597-99. Accord-
ingly, we affirm the district court on this claim as well.
III. CONCLUSION
We AFFIRM the district court.