Pavement Coatings Technology v. United States Geological Survey ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 14, 2020 Decided May 7, 2021
No. 20-5035
PAVEMENT COATINGS TECHNOLOGY COUNCIL,
APPELLANT
v.
UNITED STATES GEOLOGICAL SURVEY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01200)
Lawrence S. Ebner argued the cause for appellant. With
him on the briefs was David A. Kanter.
Joshua M. Koppel, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Ethan P. Davis, Acting Assistant Attorney General, at the time
the brief was filed, and Mark B. Stern, Attorney. Paul Cirino,
Trial Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney, entered appearances.
Before: ROGERS, MILLETT and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
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WILKINS, Circuit Judge: The U.S. Geological Survey
(“USGS” or “Survey”) is the nation’s largest water, earth, and
biological science agency. Housed within the Department of
the Interior, it has no regulatory mandate and is instead relied
upon to provide unbiased and policy-neutral information to
decision-makers at the local, state, and federal level. The
Survey and its scientists regularly publish this research in
agency reports and scientific journals. Two studies, and the
records that underlie them, are at issue in this Freedom of
Information Act (“FOIA”) appeal.
With a note on the special role of summary judgment in
FOIA cases, we reverse and remand to the District Court with
respect to the model runs withheld under Exemption Five for
further proceedings consistent with this opinion. We affirm the
District Court’s ruling as to Exemption Six.
I.
A.
Requestor Pavement Coatings Technology Council
(“PCTC”) is a trade association for producers of refined coal
tar-based sealant. Coal tar sealant prolongs asphalt’s service
life by protecting it from degradation caused by sunlight, water,
and leaked oil or gasoline. It has also been identified as a major
source of polycyclic aromatic hydrocarbons (“PAHs”). A. 18.
There are different types of PAHs, sixteen of which are
considered priority pollutants by the Environmental Protection
Agency (“EPA”). See 40 C.F.R. Part 423, App. A; see also A.
18–19. PAHs are toxic, mutagenic, teratogenic, and some are
probable human carcinogens. A. 19. In the late 1990s,
scientists at Respondent USGS noted an upward trend in PAH
levels in sediment recovered from urban lakes.
3
USGS Research Hydrologists Barbara J. Mahler and Peter
Van Metre undertook several studies to identify the sources of
PAHs in urban environments. Two of those studies—
“Contribution of PAHs from coal tar pavement sealcoat and
other sources to 40 U.S. lakes” (“urban lakes study”) and
“Coal-tar-based pavement sealcoat: An unrecognized source
of PAH to settled house dust” (“house dust study”)—and their
records are at issue here. Both studies identified coal tar sealant
as a major source of urban PAHs. USGS has released all of the
raw data underlying both studies.
Mahler and Van Metre produced computer modeling input
and output data to analyze this raw data. As described by Van
Metre, “[m]odeling is a broad term that generally means to
develop a mathematical model of some natural process” by
relating one or more variables (e.g., urban land use) to the
occurrence of other variables (e.g., the concentration of a
pollutant in local streams) in order to better understand how the
environment works. A. 23. Complicated models require
calibration, achieved by adjusting or replacing variables and
parameters that control the model in order to test how well the
model represents the natural process studied. In the urban lakes
study, Mahler and Van Metre sought to determine what PAH
sources—vehicle emissions, power plant emissions, or coal tar
sealant, among other sources—contributed to the PAHs they
measured in lake sediment samples collected across the United
States.
To do so, Mahler and Van Metre tested three widely used
source receptor models developed by the EPA. A source
receptor model attempts to isolate the source of contaminants
identified in a sample. Testing the three models with different
combinations of sediment samples and PAHs revealed that the
EPA’s “contaminant mass balance” (“CMB”) model was the
preferred choice. The CMB model, like the raw data it
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crunched, is publicly available. See United States
Environmental Protection Agency, Chemical Mass Balance
(CMB) Model, https://www.epa.gov/scram/chemical-mass-
balance-cmb-model (last visited Apr. 23, 2021). Mahler and
Van Metre did not publish the “exploratory decision-making
process” behind their choice to use the CMB model because
such a comparative modeling analysis “would be a major
undertaking” distinct from their goal of “using a given model
to evaluate sources in the environment.” A. 24.
Calibrating the CMB model required Mahler and Van
Metre to make several choices: they selected which lakes to
include and, from each lake, which samples. They decided
how to process that data before entering it into the model (for
example, by using the logarithm of the actual sample values or
tweaking how sample uncertainty was estimated). They chose
which types of PAHs to source. And they chose which sources
to include, since there are statistical limits on how many
sources the model can consider in a run. For example, it made
sense to the researchers to include coke-oven emissions for
lakes near Chicago, where coke ovens are still in operation, but
not for lakes in Washington State or Florida, where coke-ovens
are not.
The USGS scientists also ran combinations of variables
that the researchers believed were highly unlikely to occur in
the real world to see how the model would respond to
adjustments to those variables. Other runs allowed them to
“investigate alternative hypotheses for the causes of . . . PAH
contamination.” A. 24. The scientists also shifted parameters
for various runs, including instructing the model to run a
certain number of iterations before arriving at a solution.
Given these possible combinations of inputs, “the possible
outcomes of a particular model—even if used on the same data
set—are virtually limitless.” A. 26. Van Metre explained that
5
the process of selecting “samples, source profiles, PAHs and
modeling parameters reflects the working thoughts of a
scientist as he or she attempts to make sense of the data
presented.” A. 26. Mahler described the process as “not
dissimilar to a writer trying out different combinations of
words or paragraphs in a draft document in an effort to create
the most logical sequence.” A. 14.
From the more than 200 model runs tested, Van Metre and
Mahler chose four representative runs “on the basis of good
quantitative and qualitative model performance.” A. 27. These
four runs were “in general agreement with the vast majority of
the 200 models tested,” though there was “considerable
variability in those results that could be exploited to make it
appear” that USGS overstated coal tar sealant’s role as a
source. A. 27. The record does not disclose whether peer
reviewers—either within USGS or engaged by the publishing
journals—reviewed the 196 model runs that were not selected
for publication. At oral argument, counsel for USGS suggested
that approving officials within the agency “may have seen
some [of the 196 model runs] in the preliminary drafts,” but
conceded that neither scientist declared that they selected the
four chosen model runs to inform the ultimate decision-
maker’s decision whether to publish the urban lakes study.
Oral Arg. Tr. 16:22–17:9; 27:19–28:12; see also 21:13–17.
Requestor PCTC engages experts who use the Survey’s
data to conduct in-depth post-publication peer reviews “to
better understand data that has been collected about products
made by PCTC members.” To test the soundness of the urban
lakes study’s methods and conclusions, PCTC seeks the
computer modeling input and output data Mahler and Van
Metre produced while analyzing their raw data. PCTC takes
issue with USGS’s decision not to publish the exploratory
decision-making process, namely, the inputs and parameters
6
for each run. PCTC believes that Mahler and Van Metre
manipulated the model inputs to ensure that outputs identified
coal tar sealants as the source. Mahler and Van Metre allegedly
achieved this result by using unweathered PAH source profiles
for the non-coal tar sealant sources and weathered samples for
the coal tar sealant source. According to PCTC, since “all
combustion sources of PAHs have similar PAH profiles and all
weather to similar, undistinguishable weathered profiles,
Mahler and Van Metre have rigged the model to guarantee that
most PAHs in the environment (which are all weathered) look
like what they have called [coal tar sealant].” A. 120. PCTC
points to this alleged manipulation to illustrate why it “must be
provided with the model runs it has requested to both attempt
to replicate the reasoning behind the work of Mahler and Van
Metre, and to defend itself against attempts to ban or restrict
the sale and use of [coal tar sealant].” A. 120. Van Metre’s
affidavit stated that providing PCTC with the model runs
would “give [it] yet another tool to try and confuse the public
and discredit our work.” A. 27.
PCTC’s Executive Director, Anne LeHuray, testified in
her affidavit that concealing scientific processes is unsound
scientific methodology. She claimed that a “full account of the
work performed” is necessary to attempt to reproduce Mahler
and Van Metre’s research and pointed to the scientific journal
Nature’s conditions of publication, which require authors to
“make materials, data, code, and associated protocols promptly
available to readers without undue qualifications,” to support
the argument that these model runs would usually be revealed
to the scientific community and the public. A. 129, 168.
PCTC also seeks location information for dust samples
collected as part of the urban house dust study. USGS
scientists collected samples from twenty-three Austin, Texas
residences in mid-2008. USGS labeled each sample with a
7
sample ID and created sample sheets linking the sample IDs
and concentrations of PAHs found in each associated sample.
Participants filled out a questionnaire and answered follow-up
questions to identify factors that may have affected PAH
concentrations in their house dust. The questions asked
participants to disclose how many adults and children lived in
the residence, whether they smoked, how often they left their
homes and how long they were gone, their eating and cooking
habits, and whether and how long their windows were kept
open. Volunteers were told their samples would be used only
for the purposes of the study and that personally identifiable
information would remain confidential.
USGS produced all sample sheets and questionnaires (with
the volunteer’s name and address, and sample and site IDs,
redacted) and a “means by which to match the responses to the
results of the sample analysis.” A. 55, 148. However, PCTC
seeks the location information associated with each sample in
order to “conduct a study (or a post-publication peer review of
the USGS’ [sic] dust study) which examines the potential role
alternative (non-[coal tar sealant]) factors—known as
confounders—may have contributed to the PAH levels found
in the USGS dust study.” A. 171. PCTC argues that it must be
provided with volunteers’ addresses because “[w]ithout the
addresses of locations used in the USGS dust study, PCTC will
not be able to construct a study design that adequately
replicates the USGS dust study.” A. 172.
B.
In 2011, PCTC filed a FOIA request seeking release of
USGS records relating to the agency’s coal tar sealant studies.
PCTC sought eight years of documents, including
correspondence regarding coal tar sealant and all documents
relating to studies or publications about coal tar sealant, as well
8
as all lab data for coal tar sealant-related research. USGS
produced 52,000 pages of records, including all raw data
collected for both the urban lakes and house dust studies, but
withheld the modeling data and personally identifiable
information relevant to this appeal. USGS withheld the model
runs under FOIA’s Exemption Five on the ground that
“[r]elease of the exploratory analysis would inhibit the ability
to freely explore and analyze data without concern for external
criticism.” A. 50. It withheld the house dust study participants’
personal information under FOIA’s Exemption Six because
“[r]elease would constitute a clearly unwarranted invasion of
personal privacy” and “would not serve a public interest
because the pertinent scientific data associated in this category
of records is already released.” A. 55–56.
After PCTC filed its complaint in 2014, the parties
submitted cross-motions for summary judgment. The District
Court ruled on those motions on November 13, 2019, issuing
an order granting USGS’s motion for summary judgment and
denying PCTC’s cross-motion. PCTC timely appealed. The
District Court exercised jurisdiction under 5 U.S.C.
§ 552(a)(4)(B) and 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291.
II.
As we have often observed, “FOIA protects the basic right
of the public to be informed about what their government is up
to.” Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020)
(quoting Competitive Enter. Inst. v. Office of Sci. & Tech.
Policy, 827 F.3d 145, 150 (D.C. Cir. 2016) (internal quotations
omitted)). FOIA, 5 U.S.C. § 552, requires agencies to disclose
records upon request, unless they fall within one of nine
exemptions. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,
— U.S. —, 141 S. Ct. 777, 785 (2021). We construe these
9
exemptions narrowly. Milner v. Dep’t of Navy, 562 U.S. 562,
565 (2011).
We review the District Court’s decision on summary
judgment in a FOIA case de novo. Hall & Assocs., 956 F.3d at
629. Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Id.
(quoting FED. R. CIV. P. 56(a)); see also Petroleum Info. Corp.
v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)
(“This circuit applies in FOIA cases the same standard of
appellate review applicable generally to summary judgments.”
(citing Wash. Post Co. v. Dep’t of Health and Hum. Servs., 865
F.2d 320, 325–26 & n.8 (D.C. Cir. 1989))). “In the FOIA
context this requires that we ascertain whether the agency has
sustained its burden of demonstrating that the documents
requested are . . . exempt from disclosure.” Am. C.L. Union v.
U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting
Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) and citing
5 U.S.C. § 552(a)(4)(B) (stating that “the burden is on the
agency to sustain its action”)). At this stage, “the inferences to
be drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion,” in this
case, requestor PCTC. Judicial Watch, Inc. v. U.S. Secret
Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (internal quotations omitted)).
USGS seeks to withhold some 196 unpublished model
runs under Exemption Five. Exemption Five excludes from
FOIA’s disclosure requirements “inter-agency or intra-agency
memorandums or letters that would not be available . . . in
litigation with the agency.” 5 U.S.C. § 552(b)(5). “A form of
executive privilege, the deliberative process privilege covers
deliberative, pre-decisional communications within the
10
Executive Branch,” Nat’l Sec. Archive v. CIA, 752 F.3d 460,
462 (D.C. Cir. 2014), and was “intended to protect not simply
deliberative material, but also the deliberative process of
agencies,” Montrose Chem. Corp. of Cal. v. Train, 491 F.2d
63, 71 (D.C. Cir. 1974). To qualify for withholding,
information must be both pre-decisional and deliberative.
Petroleum Info. Corp., 976 F.2d at 1434.
With respect to the urban lakes study, USGS stumbles at
both hurdles. The agency first failed to introduce any evidence
establishing what role the requested model runs played in its
decision to publish the urban lakes study. Second, we find no
evidence on this record that disclosing the model runs would
expose the Survey’s decision-making process “in such a way
as to discourage candid discussion within the agency and
thereby undermine the agency’s ability to perform its
functions.” See Dudman Commc’ns Corp. v. Dep’t of Air
Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).
A.
USGS failed to carry its burden to show that the model
runs are pre-decisional. In order to establish that government
documents are pre-decisional, “the agency has the burden of
establishing what deliberative process is involved, and the role
played by the documents in issue in the course of that process.”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868
(D.C. Cir. 1980); see also Paisley v. CIA, 712 F.2d 686, 698
(D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d
201 (D.C. Cir. 1984). Put simply, a pre-decisional record is
one “prepared in order to assist an agency decisionmaker in
arriving at his decision.” Petroleum Info. Corp., 976 F.2d at
1434 (quoting Renegotiation Bd. v. Grumman Aircraft, 421
U.S. 168, 184 (1975)). The government says that the relevant
agency decision to which the model runs are assertedly pre-
11
decisional is the Survey’s decision to adopt and publish the
urban lakes study in its own name. USGS Br. 15–16. PCTC
accepts that as the relevant decision for purposes of Exemption
Five. See PCTC Br. 22. But we are faced with a record devoid
of evidence that any decision-maker at USGS considered the
discarded model runs in determining whether and in what form
to publish the urban lakes study. The agency bears the burden
of explaining its decision-making process, but we have no
declaration that does so. Indeed, counsel for the agency
conceded as much at oral argument. See Oral Arg. Tr. 21:12–
22:1 (“I don’t believe that what the approving officials look at
is in the record.”). Counsel is correct.
All we are told is that “approving officials may have seen
some” of the discarded runs in preliminary drafts, id. at 17:1–2
(emphasis added), but this claim was made only at oral
argument and is unsupported by the record evidence. USGS
chose to identify its decision as the decision to publish, but it
did not explain how that decision was made, aside from
averring that the process included peer review. A. 52–53. Yet
USGS failed to explain in detail whether the model runs were
shared with peer reviewers and what role, if any, they played
in the peer review process. USGS instead conflates the
deliberative process of coming to a reliable scientific result
with the approving officials’ decision to publish the urban lakes
study. See Oral Arg. Tr. 20:20–25. The Survey is widely
respected because it publishes reliable scientific research, but,
for FOIA purposes, the decision to publish a paper and the
underlying scientific determination are not one and the same.
Without more, we cannot find that USGS has carried its burden
to explain the model runs’ role in its decision-making process.
The “more” we are looking for requires USGS to establish
how its decision to publish the urban lakes study was reached;
what information was shared with reviewers, internal and
12
external; whether drafts reviewed by agency officials making
the publication decision included the underlying model run
data; and how the exploratory data runs influenced the decision
to publish or the form the final publication would take.
Without this information, USGS has “failed to supply us with
even the minimal information necessary to make a
determination.” See Coastal States, 617 F.2d at 861. We
remind USGS that “the burden is on them to establish their
right to withhold information from the public and they must
supply the courts with sufficient information to allow us to
make a reasoned determination that they were correct.” Id.B.
USGS also failed to prove beyond dispute that the model
runs are deliberative. Our deliberativeness inquiry “focuse[s]
on whether disclosure of the requested material would tend to
discourage candid discussion within an agency.” Petroleum
Info. Corp., 976 F.2d at 1434 (internal quotations omitted). We
ask whether the document is “so candid or personal in nature
that public disclosure is likely in the future to stifle honest and
frank communication,” Coastal States, 617 F.2d at 866, “and
thereby undermine the agency’s ability to perform its
functions,” Dudman, 815 F.2d at 1568. USGS failed to
establish how or why disclosure of the model runs would chill
scientists’ use of exploratory model runs in the future or impact
the accuracy or efficiency of the Survey’s operations.
The agency’s affidavits contain no explicit statement that
disclosure will harm the agency’s decision-making. At oral
argument agency counsel could not point to a similar claim, nor
did we find one in the record. Cf. Oral Arg. Tr. 24:9–10
(USGS’s counsel conceded he was “not sure if” the agency
affidavits “explicitly say that [release] would change the way
they do their business”). We find only claims that releasing the
13
model runs will enable criticism of USGS. A. 27, 49. But
criticism is not a recognized harm against which the
deliberative process privilege is intended to protect. Granted,
USGS argues that release could cause public confusion, and we
have acknowledged misperception of agency positions as a
ground for withholding deliberative materials. See Judicial
Watch, Inc. v. Dep’t of Def., 847 F.3d 735, 739 (D.C. Cir.
2017). But the privilege’s “‘ultimate aim’ is to ‘prevent injury
to the quality of agency decisions.’” Petroleum Info. Corp.,
976 F.2d at 1434 (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 151 (1975)). And it is also clear from our—and
Supreme Court—precedent that we are obligated to construe
the exemption narrowly and focus on whether disclosure will
harm intra-agency candor and efficiency. Id. at 1434–35; see
also Milner, 562 U.S at 565 (“[FOIA’s] exemptions are
explicitly made exclusive, and must be narrowly construed.”
(internal citations and quotations omitted)); U.S. Fish &
Wildlife Serv., 141 S. Ct. at 785 (“To encourage candor, which
improves agency decisionmaking, the privilege blunts the
chilling effect that accompanies the prospect of disclosure.”).
USGS does not say it will and does not explain how, if these
model runs are disclosed, scientists will cease to conduct model
runs in the future or do them differently.
To the contrary, PCTC introduced evidence that disclosure
of the model runs will not impede or impair the scientists’ work
going forward. The Director of PCTC introduced, in her
affidavit, an unrebutted excerpt from Nature Magazine’s
conditions of publication, which require authors to “make
materials, data, code, and associated protocols promptly
available to readers without undue qualifications.” A. 168.
Although it is not clear that other scientific journals, or even
Nature, would expect the authors to release all 200 model runs,
the Survey cannot meet its burden of justifying the categorical
withholding of all unpublished model runs given this
14
unrebutted evidence. And at oral argument the Survey’s
attorney admitted that performing preliminary model runs “is
quite standard.” Oral Arg. Tr. 22:23–24. Consequently, we
hesitate to presume that USGS scientists will be discouraged
from performing these standard calibrations in the future in a
way that would harm the agency’s decision-making. For the
same reason, it is not obvious that disclosure would result in
the same harm to agency decision-making as in Dudman, 815
F.2d at 1569 (finding that publication of draft agency history
would discourage the candid exchange of ideas), and Russell v.
Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)
(same).
Nor do we find these model runs exactly analogous to peer
review comments. See Formaldehyde Inst. v. Dep’t of Health
& Human Servs., 889 F.2d 1118, 1120, 1123–25 (D.C. Cir.
1989). In Formaldehyde we found reviewers’ comments that
contained “advice, constructive criticism and guidance with
respect to revision” of a scientific study submitted for
publication protected by the privilege where the “undisputed
factual record clearly establishe[d] that [agency]
personnel . . . must regularly rely on the comments of expert
scientists to help them evaluate the readiness of agency work
for publication.” Id. at 1124–25. That record also contained
“unrefuted evidence” that release of reviewers’ comments
“would very likely have a chilling effect on either the candor
of potential reviewers of government-submitted articles or on
the ability of the government to have its work considered for
review at all.” Id. at 1125. Those findings supported the
inference that “a government author is likely to be less willing
to submit her work to a refereed journal at all if critical reviews
could come to light somewhere down the line” resulting “in the
publication of inferior work in (presumably) inferior and less
widely circulated journals.” Id. Because there is no evidence
here that scientists will cease to run thorough and searching
15
exploratory analyses, we cannot follow the same chain of
inferences we did in Formaldehyde, where we could easily see
the detrimental effects of disclosure.
We find sufficient uncertainty about whether this type of
data is ordinarily disclosed, or whether there is an expectation
that it will not be disclosed, or what impact it would have if is
disclosed, to rule for USGS at the summary judgment stage.
C.
The absence of evidence establishing that the requested
model runs are protected from disclosure amounts to the
agency’s failure to establish that it is entitled to judgment as a
matter of law. See FED. R. CIV. P. 56(a). We leave to the
District Court the decision how to proceed. Generally
speaking, discovery is rarely appropriate in FOIA cases, In re
Clinton, 970 F.3d 357, 364 (D.C. Cir.), on reh’g, 973 F.3d 106(D.C. Cir. 2020), cert. denied sub nom. Jud. Watch, Inc. v.
Clinton, No. 20-1051, 2021 WL 1163766 (U.S. Mar. 29, 2021),
and the preferred approach, if possible, is to resolve the lawsuit
without discovery and by summary judgment. If the District
Court believes that it can resolve this case for one side or the
other with supplemental affidavits and further summary
judgment briefing, it should do so. This strikes us as the
prudent course where it allows the District Court to resolve a
contested FOIA request most efficiently. FED. R. CIV. P. 1
(“[These rules] should be construed, administered, and
employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and
proceeding.”).
Of course, summary judgment is not barred merely
because “the parties’ affidavits disagree on the probable
consequences of a disclosure,” Alyeska Pipeline Serv. Co. v.
EPA, 856 F.2d 309, 313 (D.C. Cir. 1988), but if the undisputed
16
material facts “are susceptible to divergent inferences bearing
upon an issue critical to the disposition of the case, summary
judgment is not available,” id. at 314. In such an instance, the
matter can be resolved by an adjudicatory proceeding tailored
to the factual dispute in the case, such as a “paper trial” on a
stipulated evidentiary record with findings of fact and
conclusions of law set forth pursuant to Federal Rule of Civil
Procedure 52. See Wash. Post Co., 865 F.2d at 326; Sears,
Roebuck & Co. v. Gen. Servs. Admin., 553 F.2d 1378, 1382–83
(D.C. Cir. 1977).
III.
We affirm the District Court’s grant of summary judgment
to USGS with respect to the sampling location information
collected for the 2010 house dust study. Exemption Six allows
withholding of “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). It aims
“to protect individuals from the injury and embarrassment that
can result from the unnecessary disclosure of personal
information.” Dep’t of State v. Wash. Post Co., 456 U.S. 595,
599 (1982).
The study participants have a greater than de minimis
privacy interest in their addresses, household compositions,
smoking and cooking habits, and the extensive personal details
included in the questionnaires. See U.S. Dep’t of Def. v. FLRA,
510 U.S. 487, 500–01 (1994). And releasing their addresses
serves no cognizable public interest because it would shed no
additional light on the Survey’s “operations or activities,” since
USGS has already produced the questionnaires and a “means
by which to match [participants’] responses to the results of the
sample analysis.” See Nat’l Ass’n of Home Builders v. Norton,
309 F.3d 26, 33–34 (D.C. Cir. 2002) (internal quotations
17
omitted); A. 55, 148. PCTC thus has all the data it needs to
replicate the USGS scientists’ analysis of how participants’
habits may have impacted the concentration of coal tar sealant
in their homes. And in any case, PCTC’s desire to identically
replicate the study using the addresses is foreclosed given that
coal tar sealant has been outlawed in the relevant area since
2006.
Since “something, even a modest privacy interest,
outweighs nothing every time,” the District Court correctly
found the study participants’ personal information properly
withheld under Exemption Six. Nat’l Ass’n of Retired Fed.
Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
IV.
For the foregoing reasons, we reverse and remand to the
District Court PCTC’s claims regarding the urban lakes model
runs withheld under Exemption Five, and affirm its decision to
withhold the house dust study location information under
Exemption Six.
So ordered.