Shepherd v. Consumer Financial Protection Bureau ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TODD SHEPHERD,
Plaintiff,
v.
Civil Action No. 18-2004 (TJK)
CONSUMER FINANCIAL PROTECTION
BUREAU,
Defendant.
ORDER
Journalist Todd Shepherd filed this lawsuit under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, against the Consumer Financial Protection Bureau (CFPB), seeking the
phone records of its employee Leandra English from November 2017 through March 2018. The
public focused its attention on the CFPB during those months when English sought—
unsuccessfully—to be recognized as the CFPB’s acting Director. See English v. Trump, 279
F. Supp. 3d 307, 313–15 (D.D.C. 2018). This case turns on whether the CFPB may properly
withhold certain phone numbers reflected in the six pages of records identified as private,
personal information under FOIA’s Exemption 6. The CFPB and Shepherd have moved for
summary judgment. ECF Nos. 10, 16. For the reasons explained below, the Court will deny
both motions without prejudice and require the parties to propose a schedule for further summary
judgment briefing. Neither the CFPB’s motion and accompanying declaration nor Shepherd’s
motion are adequate for the Court to determine whether either party is entitled to summary
judgment.
* * *
“Summary judgment is appropriately granted when, viewing the evidence in the light
most favorable to the non-movants and drawing all reasonable inferences accordingly, no
reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.–Islamic Relations
Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “The evidence presented must show
‘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)).
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007)
(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). There is a “strong presumption
in favor of disclosure,” which “places the burden on the agency to justify the withholding of any
requested documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014).
“The FOIA ‘mandates that an agency disclose records on request, unless they fall within one of
nine exemptions.’” Electronic Privacy Info. Ctr. v. DHS, 777 F.3d 518, 522 (D.C. Cir. 2015)
(quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)). And those exemptions “are
explicitly made exclusive” and “must be narrowly construed.” Id. (quoting Milner, 562 U.S. at
565).
When the propriety of an agency’s withholding is at issue, summary judgment for the
agency is justified if the agency’s supporting declarations and exhibits describe the requested
documents and “the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d
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773, 776 (D.C. Cir. 1984)). The agency cannot rely on “conclusory and generalized allegations
of exemptions.” Morley, 508 F.3d at 1115 (quoting Founding Church of Scientology of Wash.,
D.C., Inc. v. NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).
Exemption 6 provides that agencies 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). Courts follow a two-step process when considering
withholdings or redactions under Exemption 6. First, they “determine whether the [records] are
personnel, medical, or ‘similar’ files covered by Exemption 6.” Multi Ag Media LLC v. Dep’t of
Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). The phrase “similar files” includes all information
that “applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599–
603 (1982). Second, if the records are so covered, courts “determine whether their disclosure
‘would constitute a clearly unwarranted invasion of personal privacy.’” Multi Ag. Media, 515
F.3d at 1228 (quoting 5 U.S.C. § 552(b)(6)).
In making the latter determination, courts must “balance the public interest in disclosure
against the interest Congress intended [Exemption 6] to protect.” Dep’t of Def. v. FLRA, 510
U.S. 487, 495 (1994) (quoting Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 776 (1989)). This involves a second two-step process. Courts first determine whether
“disclosure would compromise a substantial, as opposed to a de minimis, privacy interest.” Nat’l
Ass’n of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002) (quoting Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989)). If the interest is substantial,
they “weigh the interest against the public interest in the release of the records.” Id. (internal
quotation marks omitted) (quoting Horner, 879 F.2d at 874). Exemption 6 “does not
categorically exempt individuals’ identities . . . because the ‘privacy interest at stake may vary
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depending on the context in which it is asserted.’” Judicial Watch, Inc. v. FDA, 449 F.3d 141,
153 (D.C. Cir. 2006) (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C.
Cir. 1996)). The “only relevant ‘public interest in disclosure’ to be weighed in this balance is the
extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]
significantly to public understanding of the operations or activities of the government.’” Dep’t of
Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (alteration in original) (quoting
Reporters Comm., 489 U.S. at 775).
* * *
The CFPB has identified six pages of landline and government-issued cell phone records
that reflect the time, date, duration, and phone numbers associated with English’s incoming and
outgoing calls during the period requested. ECF No. 10-3 ¶ 8. It seeks to withhold a subset of
the phone numbers reflected in those records—which it redacted when it produced the records to
Shepherd—under Exemption 6. In arriving at its redactions, the CFPB followed the following
process: first, it identified its own employees’ “Washington, D.C. office landline phone
numbers,” which it did not redact under Exemption 6. Id. ¶¶ 9, 11. And second, it used “the
internet search tool Google” to determine whether the remaining phone numbers belonged to “a
private individual or a business entity.” Id. ¶ 10. Similarly, it did not redact phone numbers
associated with business entities under Exemption 6. Id. ¶ 11. The CFPB does not say one way
or the other whether it successfully used Google to associate any of the phone numbers with
individuals. It represents only that it redacted all phone numbers it could not link, as explained
above, to either the CFPB’s Washington, D.C. landlines or to businesses. Id.
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As explained below, the CFPB’s motion and accompanying declaration and Shepherd’s
motion are inadequate for the Court to determine whether either party is entitled to summary
judgment.
FOIA mandates a strong presumption of disclosure. And the CFPB bears the burden of
proving that the phone numbers it redacted from the six pages of records at issue may be
withheld under Exemption 6. But all the CFPB has told the Court about them is that they are not
either (1) the CFPB’s own Washington, D.C. landlines or (2) numbers that the CFPB could
associate with businesses using Google. This information is insufficient for the Court to
determine whether these phone numbers are personnel, medical, or “similar files” that apply to a
particular individual; and, if so, whether, upon balancing the public interest in disclosure against
the privacy interests at stake, their disclosure would constitute a clearly unwarranted invasion of
personal privacy. To undertake the above analysis, the Court needs more information about the
redacted phone numbers—as opposed to what they are not. As the Circuit has instructed, a
privacy interest related to Exemption 6 may vary depending on the context in which it is
asserted. Simply put, the Court has little context here.
Moreover, the CFPB’s approach shows why the Court cannot—as the CFPB urges—
simply assume on this record that all the redacted phone numbers are those of individuals with
substantial privacy interests. The CFPB identified—and therefore did not redact—its own
Washington, D.C. landlines that appeared in the records. But it apparently took no steps to
identify landlines associated with other CFPB offices or CFPB-issued cell phones, two types of
phone numbers that, at a minimum, do not clearly warrant withholding under Exemption 6.
Similarly, the CFPB does not represent that it tried to identify, and therefore not redact, phone
numbers associated with government offices or officials outside the CFPB. Whether Exemption
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6 would cover such phone numbers—as in countless other situations—would depend on the
particular facts, circumstances, and interests at stake. And finally, the CFPB’s use of Google to
exclude phone numbers associated with businesses from the redacted phone numbers did not
adequately accomplish that task, at least on the record here. The Court has no information about
the likelihood that a Google search of a phone number accurately reflects whether that phone
number belongs to a business. The Court therefore has no basis to infer there are no business
phone numbers among those that the CFPB redacted and withheld from Shepherd.
* * *
For all the above reasons, it is hereby ORDERED that Defendant’s Motion for Summary
Judgment, ECF No. 10, is DENIED WITHOUT PREJUDICE, and Plaintiff’s Cross-Motion
for Summary Judgment, ECF No. 16, is DENIED WITHOUT PREJUDICE. It is further
ORDERED that by October 16, 2019, the parties shall jointly propose a schedule for filing
renewed motions for summary judgment.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 17, 2019
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