Judicial Watch, Inc. v. Board of Governors of the Federal Reserve System ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 09-2138 (RWR)
)
BOARD OF GOVERNORS OF THE )
FEDERAL RESERVE SYSTEM, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. brings this action against
the Board of Governors of the Federal Reserve System (“the
Board”), alleging a violation of the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, arising out of Judicial Watch’s request
for the visitor logs from the offices of Ben Bernanke, the
Chairman of the Board, and Kevin Warsh, a member of the Board.
The Board has moved for summary judgment. Because material facts
are not in dispute and the record shows unequivocally that the
Board fulfilled its obligations under the FOIA, its motion for
summary judgment will be granted.
BACKGROUND
The Board’s security office maintains a log of visitors who
come to the Board’s buildings to see Board governors and staff.
(Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J.
(“Def.’s Mem.”), Thro Decl. ¶ 7.) Judicial Watch submitted a
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FOIA request seeking “any and all visitor logs for meetings” with
Bernanke and Warsh from August 2007 to the date of the request,
September 2, 2009. (Def.’s Stmt. of Material Facts Not In
Genuine Dispute ¶ 1.1) Each log contained a column for the
visitor’s last name, first name, and organization, the Board
employee visited, and the date. (Id. ¶ 6.) In response to the
FOIA request, the Board produced to Judicial Watch the logs but
redacted the names, and, in two instances, the organizations for
entries identified as personal visits. (Id. ¶¶ 6, 8.) Judicial
Watch brought this action complaining that the Board improperly
redacted the personal entries. The Board has moved for summary
judgment,2 arguing that its redactions were proper under
Exemption 6 of the FOIA because disclosing the names of the
personal visitors would have constituted an unwarranted invasion
of personal privacy.
DISCUSSION
Summary judgment may be granted when the materials in the
record show “that there is no genuine dispute as to any material
1
All facts cited from the Board’s Statement of Material
Facts are not disputed by Judicial Watch.
2
Judicial Watch states in its opposition to the Board’s
motion for summary judgment that it “hereby moves for summary
judgment” on its FOIA claim. (Pl.’s Opp’n to Def.’s Mot. for
Summ. J. at 1.) However, the April 6, 2010 Scheduling Order set
a dispositive motions deadline of April 29, 2010. Because
Judicial Watch did not submit its filing until after the
dispositive motions deadline, the filing will be treated only as
an opposition to the Board’s motion for summary judgment.
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fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009). A court considering a motion for summary
judgment must draw all “justifiable inferences” from the evidence
in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to
summary judgment if it demonstrates that no material facts are in
dispute and that all information that falls within the class
requested either has been produced, is unidentifiable, or is
exempt from disclosure. Students Against Genocide v. Dep’t of
State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. U.S. Dep’t
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court
must conduct a de novo review of the record in a FOIA case, and
the agency resisting disclosure bears the burden of persuasion in
defending its action. 5 U.S.C. § 552(a)(4)(B); see also Akin,
Gump, Strauss, Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F.
Supp. 2d 373, 378 (D.D.C. 2007).
I. ADEQUACY OF SEARCH
FOIA requires that government agencies make good faith
efforts to conduct reasonable searches for all records that are
responsive to FOIA requests. Baker & Hostetler LLP v. U.S. Dep’t
of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). An agency is
entitled to use detailed non-conclusory affidavits or
declarations that are submitted in good faith to show that the
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search it conducted in response to a FOIA request is adequate.
Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551-52 (D.C.
Cir. 1994) (stating that the affidavits or declarations must
describe “what records were searched, by whom, and through what
process”). Judicial Watch requested “any and all visitor logs
for meetings” with Bernanke and Warsh from August 2007 to the
date of the request, September 2, 2009. (Def.’s Mem., Thro Decl.
¶ 3.) In response to the request, the Board searched for “the
logs for visitors to Chairman Bernanke and Governor Warsh for the
period August 1, 2007 through September 9, 2009.” (Id. ¶ 7.)
The affidavit demonstrates that the search was reasonably likely
to produce results responsive to Judicial Watch’s request.
Judicial Watch has not rebutted this affidavit on this issue, nor
has it otherwise challenged the search’s adequacy. Thus, the
Board’s search was adequate.
II. WITHHOLDINGS
The FOIA requires agencies to comply with requests to make
their records available to the public, unless information is
exempted by clear statutory language. 5 U.S.C. §§ 552(a), (b);
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996). Although there is a “strong presumption in favor of
disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991), there are nine exemptions to disclosure set forth in 5
U.S.C. § 552(b). These exemptions are to be construed as
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narrowly as possible to maximize access to agency information,
which is one of the overall purposes of the FOIA. Vaughn v.
Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).
Because the party requesting disclosure cannot know the
precise contents of the documents withheld, it is at a
disadvantage to claim misapplication of an exemption, and a
factual dispute may arise regarding whether the documents
actually fit within the cited exemptions. Id. at 823-24. To
provide an effective opportunity for the requesting party to
challenge the applicability of an exemption and for the court to
assess the exemption’s validity, the agency must explain the
specific reason for nondisclosure. Id. at 826; see also Oglesby,
79 F.3d at 1176 (“The description and explanation the agency
offers should reveal as much detail as possible as to the nature
of the document, without actually disclosing information that
deserves protection.”). Conclusory statements and generalized
claims of exemption are insufficient to justify withholding.
Vaughn, 484 F.2d at 826; see also Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (noting
that “the burden which the FOIA specifically places on the
Government to show that the information withheld is exempt from
disclosure cannot be satisfied by the sweeping and conclusory
citation of an exemption” (footnote omitted)). However, the
“materials provided by the agency may take any form so long as
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they give the reviewing court a reasonable basis to evaluate the
claim of privilege.” Delaney, Migdail & Young, Chartered v. IRS,
826 F.2d 124, 128 (D.C. Cir. 1987) (referring to an index
describing withheld material and the justification for
withholding as a “Vaughn Index”). If the agency affidavits and
Vaughn index “‘contain reasonable specificity of detail rather
than mere conclusory statements,’” then a plaintiff must point
either to contradictory evidence in the record or provide
independent evidence of agency bad faith to demonstrate that the
agency improperly invoked an exemption. Williams v. FBI, 69 F.3d
1155, 1159 (D.C. Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d
168, 171 (D.C. Cir. 1994)).
Exemption 6 of the FOIA provides that an agency may withhold
“personnel . . . and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy[.]”
5 U.S.C. § 552(b)(6). The threshold inquiry is whether the
requested information is contained in a type of file covered by
the exemption. Wash. Post Co. v. U.S. Dep’t of Health and Human
Servs., 690 F.2d 252, 260 (D.C. Cir. 1982). Congress intended
the term “similar files” to be construed broadly, U.S. Dep’t of
State v. Wash. Post. Co., 456 U.S. 595, 602 (1982), and the D.C.
Circuit has held that “[a]ll information which applies to a
particular individual is covered by Exemption 6, regardless of
the type of file in which it is contained.” Wash. Post Co. v.
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U.S. Dep’t of Health and Human Servs., 690 F.2d at 260 (internal
quotation marks omitted). Judicial Watch does not dispute that
the visitor logs are “similar files” that may be subject to
Exemption 6. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s
Opp’n”) at 6.) See also Kalwasinski v. Fed. Bureau of Prisons,
No. 08 Civ. 9593 (PAC) (MHD), 2010 WL 2541363, at *8 (S.D.N.Y.
2010) (Report and Recommendation) (concluding that prison visitor
logs are “similar files” under Exemption 6).
Once the threshold inquiry is satisfied, a court must
determine whether disclosure would constitute a clearly
unwarranted invasion of privacy. Wash. Post Co. v. U.S. Dep’t of
Health and Human Servs., 690 F.2d at 260. To make this
determination, a court balances the public interest in disclosure
against the individual privacy interests in the information
contained in the files. Id. The requestor bears the burden of
articulating a significant public interest, Schwaner v. Dep’t of
Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of showing that
disclosure would advance that interest. ACLU v. Dep’t of
Justice, 698 F. Supp. 2d 163, 165 (D.D.C. 2010). “The only
public interest to be considered under the FOIA is the extent to
which disclosure ‘advances the citizens’ right to be informed
about what their government up to.’” Hertzberg v. Veneman, 273
F. Supp. 2d 67, 87 (D.D.C. 2003) (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)).
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Conversely, there is no public interest in disclosure of
information about private citizens that reveals “‘little or
nothing about an agency’s own conduct.’” Reed v. NLRB, 927 F.2d
1249, 1251 (D.C. Cir. 1991) (quoting U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).
On the other side of the balance, an individual has a privacy
interest in the presence of his name on a list if “many parties
in addition to the party making the initial FOIA request would be
interested in obtaining” the name. Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989); see also
Blazy v. Tenet, 979 F. Supp. 10, 24 (D.D.C. 1997) (finding that
individuals have a privacy interest in “protecting the fact that
their names appear” in CIA Employee Review Panel files).
Judicial Watch argues that the public has an interest “in
full disclosure about the activities of powerful government
officials during one of the greatest economic disasters in United
States history[,]” and that, with the exception of visitors
identified as family members, the private visitors “could have
been anyone, meeting high level government officials for what, at
the moment, are completely unknown purposes.” (Pl.’s Opp’n at
7.) However, the Board staff charged with responding to Judicial
Watch’s FOIA request confirmed with the offices of Bernanke and
Warsh that for all but one visitor whose log entry under
“Organization” suggested a personal visit, “the visit was in fact
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of a personal nature and was in no way business related.”3
(Def.’s Mem., Thro Decl. ¶ 8.) Judicial Watch has not pointed to
any evidence in the record suggesting that these visits were not
of a personal nature, nor has it provided any independent
evidence of bad faith. Mere speculation that the visits may not
have been, in fact, personal is insufficient to rebut the
presumption of good faith accorded to the agency affidavit. See
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991). Because the names of personal visitors reveal nothing
about the Board’s activities or conduct, there is no public
interest in their disclosure. On the other side of the balance,
the visitors have at least some privacy interest in protecting
their names from disclosure, as it is quite conceivable that
parties other than Judicial Watch might be interested in
obtaining the names of individuals personally affiliated with
high-ranking members of the Board. See Nat’l Ass’n of Retired
Fed. Employees, 879 F.2d at 876. Because this privacy interest
is more than de minimis, the Board’s withholding under Exemption
6 was proper. See Schwaner, 696 F. Supp. 2d at 83 (noting that
“‘even a modest privacy interest outweighs nothing every time’”
3
The Board staff review determined that one visitor
designated as personal actually visited for nonpersonal reasons,
and the Board did not withhold information about that visitor.
(Def.’s Mem., Thro Decl. ¶ 8.)
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(quoting Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C.
2008)).
III. SEGREGABILITY
An agency must disclose “[a]ny reasonably segregable
portion” of an otherwise exempt record. 5 U.S.C. § 552(b). An
agency cannot withhold non-exempt portions of a document unless
they “are inextricably intertwined with exempt portions.” Mead
Data, 566 F.2d at 260. While an agency is presumed to have
complied with its obligation to disclose non-exempt portions of
the record, a “district court must make specific findings of
segregability regarding the documents to be withheld.” Sussman
v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). To
demonstrate that the withholding agency has disclosed all
reasonably segregable material, “the withholding agency must
supply ‘a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a
withheld document to which they apply.’” King v. U.S. Dep’t of
Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (quoting Mead Data,
566 F.2d at 251). Presenting a “comprehensive Vaughn index,
describing each document withheld, as well as the exemption under
which it was withheld” supplemented by an affidavit indicating
that an agency official conducted a review of each document and
determined that no document contains segregable information is
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sufficient to fulfill the agency’s obligation. See Johnson v.
Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002);
see also Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir.
2008) (noting that a court “may rely on government affidavits
that show with reasonable specificity why documents withheld
pursuant to a valid exemption cannot be further segregated”).
The Board’s Vaughn index states that it has withheld only
the first and last names of the personal visitors, and in two
instances, the names of the visitors’ organizations. (Def.’s
Mem., Vaughn Index at 1-2.) The Vaughn Index and the Board’s
supplementing declaration both explain that the information in
the organization column for these two visitors “would reveal the
family relationship, and therefore the identity, of the visitor.”
(Def.’s Mem., Thro Decl. ¶ 11.) Because disclosing this
information would reveal exempt information, it is “inextricably
intertwined” with the withheld names. See Mead Data, 566 F.2d at
260. The Board produced to Judicial Watch all other portions of
the visitors logs (Def.’s Mem., Thro Decl. ¶¶ 11-12, Vaughn Index
at 1-2), and Judicial Watch does not argue that the Board failed
to produce any reasonably segregable information. Thus, the
Board has complied with its obligation to disclose all reasonably
segregable information.
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CONCLUSION
No material facts are in dispute, and the Board has
fulfilled its obligations under the FOIA. Accordingly, the
Board’s motion for summary judgment will be granted. A final
Order accompanies this Memorandum Opinion.
SIGNED this 29th day of March, 2011.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge