Center for Public Integrity v. U.S. Department of Energy ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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CENTER FOR )
PUBLIC INTEGRITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-1173 (ABJ)
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U.S. DEPARTMENT )
OF ENERGY, et al., )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
On September 21, 2017, the Center for Public Integrity (“plaintiff”), submitted a request
for documents to the National Nuclear Security Administration (“NNSA”), a semi-autonomous
agency within the United States Department of Energy (“DOE”), under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Suppl. Compl. [Dkt. # 9] ¶ 7. The request sought all
“reports produced by national laboratories for consideration in the upcoming Nuclear Posture
Review.” Id. On May 14, 2018, DOE issued a partial determination, stating that it had located
seventeen documents responsive to the request. Id. ¶ 8. The seventeenth document would be
withheld entirely by the agency, and the first sixteen were sent to the United States Department of
State (“DOS”) for review. Id. ¶¶ 8–9. On May 18, 2018, plaintiff filed this lawsuit against DOE
and DOS, demanding disclosure of the documents. See Compl. [Dkt. # 1] ¶ 14, Demand for Relief.
On November 13, 2018, the government, through the United States Department of Defense
(“DoD”), released the sixteen documents with redactions, claiming Exemptions 5, 6, and 7(F).
Defs.’ Corrected Statement of Material Undisputed Facts [Dkt. # 21-3] (“Defs.’ SUMF”) ¶¶ 7, 11,
18–22.
On March 1, 2019, defendants moved for summary judgment, arguing that they have
complied with their obligations under FOIA. Defs.’ Mot. for Summ. J. [Dkt. # 20] (“Defs.’ Mot.”);
Corrected Mem. in Supp. of Defs.’ Mot. for Summ. J. [Dkt. # 21-2] (“Defs.’ Mem.”). Plaintiff
opposed the motion and cross-moved for summary judgment on March 29, 2019. Pl.’s Cross-Mot.
for Summ. J. [Dkt. # 22] (“Pl.’s Cross-Mot.”); Pl.’s Mem. of P. & A. in Supp. of Pl.’s Cross-Mot.
for Summ. J. [Dkt. # 22] (“Pl.’s Mem.”).
For the following reasons, the Court will grant defendants’ motion for summary judgment
in part and deny it in part, and it will deny plaintiff’s cross-motion for summary judgment.
BACKGROUND
In 2017, based on directives from both Congress and the President, DoD started drafting
an “updated Nuclear Posture Review . . . to determine the role of nuclear weapons in U.S. security
strategy.” Pl.’s Mem. at 1. Through its own investigation, plaintiff discovered that a number of
national laboratories, “which are operated by contractors on behalf of the Department of Energy,”
had offered information relevant to the Nuclear Posture Review (“NPR”). Id.
On September 21, 2017, plaintiff submitted a FOIA request to NNSA seeking “[a]ll reports
produced by national laboratories for consideration in the upcoming Nuclear Posture Review.”
Suppl. Compl. ¶ 7. On September 25, 2017, NNSA sent the request to three laboratories: the Los
Alamos Field Office, the Livermore Field Office, and the Sandia Field Office. Defs.’ SUMF ¶ 3. 1
1 The Court cites to defendants’ statement of undisputed facts only if plaintiff does not
contest the fact at issue. See Pl.’s Statement Addressing Defs.’ SUMF & Pl.’s Statement of
Genuine Issues [Dkt. # 22-1] (“Pl.’s Resp. to Defs.’ SUMF”) at 1.
2
Defendants have asserted that these laboratories were the only NNSA laboratories involved in
producing the reports called for by the FOIA request, and plaintiff does not dispute that fact. Id.
These laboratories found seventeen responsive documents, and they sent them to the
NNSA’s Office of General Counsel with several recommended redactions. Defs.’ SUMF ¶ 4. The
Office conducted a second-level review “to evaluate whether the recommended redactions were
consistent with the provisions of the FOIA.” Id. ¶ 5. The documents were also sent to the Office
of Policy in the NNSA to review and to provide recommendations regarding the proposed
redactions. Id. On March 28, 2018, NNSA received the Office of Policy’s proposed redactions.
Corrected Decl. of Delilah M. Perez in Supp. of Defs.’ Mot. for Summ. J. [Dkt # 21-1] (“Perez
Decl.”) ¶ 9. The FOIA staff at NNSA compared all of the proposed redactions, and redacted
information pursuant to FOIA Exemptions 5, 6, and 7(F). Id.
On May 14, 2018, DOE notified plaintiff that “it had located 17 documents responsive to
the request and was withholding [D]ocument 17 in its entirety . . . .” Suppl. Compl. ¶ 8. Document
17 was withheld under Exemption 5 as protected by the deliberative process privilege. Perez Decl.
¶ 14. The other sixteen documents were sent to the Department of State for review. Defs.’ SUMF
¶ 18. On May 17, 2018, plaintiff appealed the withholding of Document 17 to DOE’s Office of
Hearing and Appeals. Suppl. Compl. ¶ 12. The appeal was denied on May 29, 2018. Id.
On May 17, 2018, plaintiff submitted a FOIA request to the State Department, requesting
the sixteen documents forwarded to it from DOE. Suppl. Compl. ¶ 16; Decl. of Eric F. Stein
[Dkt. # 20-7] (“Stein Decl.”) ¶ 5. The Department informed plaintiff on June 14, 2018, that it was
processing the documents and asked if plaintiff wanted it to process the FOIA request. Stein Decl.
¶ 6. Plaintiff did not respond. Id.
3
On August 3, 2018, the State Department notified NNSA that it had no recommended
“redactions but that review by DoD was necessary” because DoD “also had equities in the
documents.” Perez Decl. ¶ 22; Stein Decl. ¶ 8. NNSA “transferred the documents to DoD on
August 7, 2018 “for [its] review and release determination.” Defs.’ SUMF ¶ 20, citing Perez Decl.
¶ 23. The department redacted additional information pursuant to Exemption 5 from the sixteen
documents. Decl. of Mark H. Herrington [Dkt. # 24-1] (“Herrington Decl.”) ¶ 4. On November
13, 2018, it produced the documents to plaintiff along with a letter explaining that information had
been redacted under Exemptions 3, 5, 6, and 7(F) on November 13, 2018. 2 Ex. C to Perez Decl.
[Dkt. # 20-6] at 1. After plaintiff filed suit, the Defense Department determined that additional
information could be segregated and released, and it provided plaintiff with versions of the sixteen
documents with fewer redactions on April 12, 2019. Herrington Decl. ¶ 4.
On March 13, 2020, the Court determined that in-camera review of the sixteen redacted
documents would aid it in making a responsible, de novo ruling on defendants’ claims of
exemptions. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). It ordered defendants to
produce the unredacted versions of the documents for inspection. Min. Order (Mar. 13, 2020).
Defendants complied with the order on March 17, 2020. See Min. Order (Mar. 20, 2020); Min.
Order (Mar. 25, 2020).
STANDARD OF REVIEW
Summary judgment is appropriate “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.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
2 While the letter stated that redactions were made pursuant to Exemption 3, defendants have
not moved for summary judgment arguing that their redactions were proper under this exemption.
Furthermore, the declarations submitted by NNSA and DoD do not mention Exemption 3.
4
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with
cross-motions for summary judgment, it analyzes the underlying facts and inferences in each
party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Id.,
at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving
party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248;
Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
When considering a motion for summary judgment under FOIA, the court must conduct a
de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment
based on information provided in an agency’s affidavits or declarations when they are “relatively
detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(citation omitted), and “not controverted by either contrary evidence in the record nor by evidence
of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.” SafeCard,
926 F.2d at 1200 (citation and internal quotation marks omitted).
5
ANALYSIS
FOIA requires government agencies to release records upon request in order to “ensure an
informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person,”
5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions.
See § 552(b); FBI v. Abramson, 456 U.S. 615, 630–31 (1982). This framework “represents a
balance struck by Congress between the public’s right to know and the government’s legitimate
interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 925 (D.C. Cir. 2003), citing John Doe Agency v. John Doe Corp., 493 U.S.
146, 152 (1989). When an agency withholds documents or parts of documents, it must explain
what it is withholding and specify the statutory exemptions that apply. See Vaughn v. Rosen, 484
F.2d 820, 825–28 (D.C. Cir. 1973).
In this case, defendants argue that they: (1) conducted a reasonable search for records
responsive to plaintiff’s FOIA request; (2) properly invoked Exemptions 5, 6, and 7(F); and (3)
complied with FOIA’s segregability requirement. See Defs.’ Mot.; Defs.’ Mem. In its combined
cross-motion for summary judgment and opposition, plaintiff stated explicitly that it does not
contest the adequacy of the search performed by the agencies. Pl.’s Mem. at 1. Therefore, there
is no dispute of fact as to the issue, and the Court need not address it. See Shapiro v. U.S. Dep’t
of Justice, 239 F. Supp. 3d 100, 105–06 n.1 (D.D.C. 2017), citing Winston & Strawn, LLP v.
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McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). The Court will address the remaining issues – the
claimed exemptions and the segregability requirement – below.
I. Exemption 5
Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party other than an agency in litigation with the
agency[.]” 5 U.S.C. § 552(b)(5); Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8 (2001). A document may be properly withheld under Exemption 5 only if (1) its source
is a government agency, and (2) it falls “within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it.” Klamath, 532 U.S.
at 8. The exemption encompasses “protections traditionally afforded [to] certain documents
pursuant to evidentiary privileges in the civil discovery context[,]” including the executive
“deliberative process” privilege. Taxation with Representation Fund v. IRS, 646 F.2d 666, 676
(D.C. Cir. 1981). FOIA “places the burden on the agency to sustain the lawfulness of specific
withholdings in litigation.” Nat. Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d
1180, 1190 (D.C. Cir. 2000). Both NNSA and DoD have exempted information claiming that the
deliberative process privilege applies to it. Perez Decl. ¶ 12; Herrington Decl. ¶ 4.
“The deliberative process privilege rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery,” and its
purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
among those who make them within the Government.” Klamath, 532 U.S. at 8–9 (citations
omitted), quoting NLRB v. Sears, Roebuck & Co. (“Sears”), 421 U.S. 132, 151 (1975). To
accomplish that goal, “[t]he deliberative process privilege protects agency documents that are both
predecisional and deliberative.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151
7
(D.C. Cir. 2006), citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980). A document is predecisional if “it was generated before the adoption of an agency policy,”
and deliberative if “it reflects the give-and-take of the consultative process.” Coastal States, 617
F.2d at 866. “[E]ven if the document is predecisional at the time it is prepared, it can lose that
status if it is adopted, formally or informally, as the agency position on an issue or is used by the
agency in its dealings with the public.” Id.
Plaintiff objects to defendants’ invocation of Exemption 5 on two grounds: (1) the
information is not deliberative; and (2) defendants have not sufficiently shown that disclosure
would cause foreseeable harm. Pl.’s Mem. at 4–7. The Court will address each objection in turn.
A. Deliberative
Plaintiff first argues that the information redacted is not deliberative because “[a]t least 15
of the 17 responsive documents carry a disclaimer on the first page stating[:] ‘This paper does not
provide policy recommendations. As an unclassified background paper, it is intended to help
frame key issues, assemble relevant background information, and sketch out alternative pathways
forward.’” Pl.’s Mem. at 5, citing Ex. 2. Plaintiff contends that the disclaimer means that in the
absence of policy recommendations, the documents only transmit facts, and therefore, they are not
deliberative.
Defendants respond that the information is deliberative for several reasons. First, the
NNSA declarant, Delilah Perez, averred that the “information withheld . . . reveals the
[g]overnment’s deliberative process with allies on sensitive policy matters whose release could
undermine the [g]overnment’s ability to engage in future deliberations on the matter.” Perez Decl.
¶ 12. She added:
8
The NNSA information redacted pursuant to this Exemption also relates to
recommendations about the United States’ position with regard to the
[International Atomic Energy Agency (“IAEA”)]. The U.S. position on this
matter is in flux and politically sensitive; release of this recommendation
could harm the [g]overnment’s deliberations as to how to approach this
topic and confuse the public. Moreover, the IAEA is not discussed in the
Nuclear Posture Review itself, and therefore this information is truly
deliberative.
Id. ¶ 12.
Similarly, NNSA withheld Document 17 on the grounds that it contained an analysis of a
specific country’s nuclear capabilities. Perez Decl. ¶ 14. This analysis “had been presented to
decision makers for inclusion in the final Nuclear Posture Review (NPR), but was ultimately
rejected. The evaluation of that country was not included in the final NPR.” Id.
DoD’s declarant stated that “[t]he materials withheld pursuant to the deliberative process
privilege are predecisional because they preceded finalization of the 2018 Nuclear Posture
Review . . . . The documents are deliberative because they provide analysis, advice, and options
to be considered by DoD when formulating the nuclear posture.” Herrington Decl. ¶ 6.
Specifically, the withheld information contained analyses regarding a variety of topics, including:
[T]he best way to manage the U.S. nuclear stockpile; strategies for warhead
modernization; hedging strategies to help reduce risk and avoid threats that
otherwise may emerge over time, including geopolitical, technological,
operational, and programmatic; possible messaging strategies to utilize both
for deterrence of adversaries and assurance of allies; and geopolitical
considerations concerning Russia, China, and North Korea.
Id. ¶ 8. Other parts of the redactions contained “alternative ways forward.” Id. ¶ 10. While the
reports do not recommend which pathway is optimal, they do propose several alternatives, which
the agency purports is “itself advice”:
For example, as it is not an objective fact that there are exactly X number
of options when deciding what the U.S. should do with its existing nuclear
weapons or X number of options when deciding what the U.S. should do
regarding the development of any future nuclear weapons, nor is it an
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objective fact what those options are, providing a list of options is advice
and analysis to be considered by DoD when reaching a decision on the
nuclear posture. The analysis contained in these sections detailed pros and
cons of each alternative, again to aid in DoD’s deliberative process.
Id.
Finally, the Defense Department declarant averred that: “The truly factual background
information has been released to [p]laintiff. The portions that have been withheld relate to the
analysis required to frame key issues and the considerations essential in deciding the pathway
forward,” Herrington Decl. ¶ 7, but “if the information was more analytical, such as predications
about how China or Russia may act in the future, then the information was withheld as
deliberative.” Id. ¶ 9.
Based on the Court’s in-camera review, as well as the information provided in the
government’s affidavits, the Court finds that the information is deliberative, and that defendants
have not withheld purely factual information. The agencies withheld policy alternatives that were
not ultimately adopted by the agency in the Nuclear Posture Review, as well as analyses of national
security concerns related to foreign nuclear capabilities. The disclaimer that plaintiff relies upon
states that each report is intended to “frame key issues” – which can be a first step in a deliberative
process of selecting issues for presentation – and it also indicates that the purpose of each report
is to outline “alternative pathways forward” – which, as defendants point out, is a form of advice.
Herrington Decl. ¶¶ 7, 10; see Sears, 421 U.S. at 151 (the privilege’s ultimate purpose is to prevent
injury to the quality of agency decisions by allowing government officials freedom to debate
alternative approaches in private). The reports lay out the pros and cons involved in a number of
potential decisions, which is precisely what is meant by the “give-and-take of the consultative
process.” Coastal States, 617 F.2d at 866. Therefore, the Court finds that the exemption was
properly invoked and the information properly withheld.
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In addition, “where the factual information is inextricably connected to the deliberative
material such that its disclosure would reveal, and harm, the deliberative process, the factual
material itself is protected.” Cofield v. City of LaGrange, Ga., 913 F. Supp. 608, 616 (D.D.C.
1996), citing Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980).
Defendants have averred that they have released all the purely factual information they
could without jeopardizing deliberations, Herrington Decl. ¶ 9; see Perez Decl. ¶ 20, and given the
detail they have provided to support that statement and the presumption of good faith that attaches
to agency declarations the Court finds that there is no additional factual information that can be
disclosed.
B. Foreseeable Harm
Plaintiff also challenges defendants’ withholdings under Exemption 5 by pointing to the
2016 FOIA Improvement Act. See Pub. L. No. 114-185, 130 Stat. 538. It contends that the
agencies have failed to satisfy the “foreseeable harm” standard. Pl.’s Mem. at 4–5. As amended,
the statute now provides that “[a]n agency shall . . . withhold information under this section only
if [] (I) the agency reasonably foresees that disclosure would harm an interest protected by [a
FOIA] exemption described in [5 U.S.C. § 552(b)]; or (II) disclosure is prohibited by law[.]” 3 5
U.S.C. § 552(a)(8)(A).
3 This standard was established in 2009. See S. Rep. No. 114-4, at 3 & n.8 (2015), citing
Attorney General Eric Holder, Memorandum for Heads of Executive Departments and Agencies,
Subject: Freedom of Information Act (Mar. 19, 2009); S. Rep. No. 114-4, at 7–8. Pursuant to the
“foreseeable harm” standard, the Department of Justice would “defend an agency’s denial of a
FOIA request only if (1) the agency reasonably fores[aw] that disclosure would harm an interest
protected by one of [FOIA’s] statutory exemptions, or (2) disclosure [was] prohibited by law. U.S.
Dep’t of Justice, Guide to the Freedom of Information Act 25 (2009 ed.),
https://www.justice.gov/archive/oip/foia_guide09/procedural-requirements.pdf (internal
quotation marks omitted). By codifying this standard, Congress sought to establish a “presumption
of openness” in FOIA. See H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No. 114-4, at 3, 7.
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Plaintiff argues that this provision requires agencies to make a specific showing that
foreseeable harm will occur if the documents are disclosed in their entirety, and that defendants
have failed to make the requisite showing because: (1) The documents were sent to DOS for
review, and DOS did not recommend any redactions, and thus there can be no harm to the
“government’s ability to engage in future deliberations on policy matters” with other countries,
Pl.’s Mem. at 5, citing Defs.’ Mem. at 9; (2) there is no harm to candid discussion, because the
reports were created by a committee and contained a disclaimer that the reports did not represent
“official positions of the NNSA national laboratories,” id. at 7; and (3) there is no substantial risk
of public confusion. Id., citing Defs.’ Mem. at 9.
The Court finds that the record supports a finding that the agencies reasonably foresaw that
disclosure of the redacted portions of the records could cause harm that Exemption 5 was meant
to prevent.
The agencies have avowed that release of the information “could undermine the
government’s ability to engage in future deliberations on the matter” and cause confusion because
“the information reflects opinions stated in apparent fact form about U.S. policy toward other
countries.” Perez Decl. ¶ 12. The withholdings also contain information regarding the IAEA,
which was not included in the final Nuclear Posture Review, and the “U.S. position on this matter
is in flux and politically sensitive; release of this recommendation could harm the [g]overnment’s
deliberations as to how to approach this topic and confuse the public.” Id. ¶ 13. As stated above,
Document 17 (which was withheld completely) pertains to an analysis of a country’s nuclear
capabilities and it was not included in the final NPR. Id. ¶ 14. Finally, DoD’s declarant stated
that “the final report discusses China, Russia, and North Korea and the geopolitical posture of each
country at some length . . . . Any discrepancies between NNSA’s analysis and the statements in
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the final report that may exist could similarly confuse the general public as well as the governments
of those countries regarding the United States’ belief of their military posture, intentions, and
actions.” Herrington Decl. ¶ 12.
The Court finds that defendants have adequately explained that disclosure of the
information would cause foreseeable harm. The information at issue is related to national security,
and the agencies should be free to discuss proposals internally that did not ultimately find their
way into the final policy statement of the agency – the Nuclear Posture Review. Furthermore, if
disclosure was ordered, deliberations on sensitive nuclear policy matters would be impaired, which
goes to the very heart of the deliberative process privilege.
Plaintiff’s argument that the fact that the State Department did not make any redactions
suggests that there would be no harm to this country’s ability to engage in future deliberations on
these matters with its allies is beside the point. Pl.’s Mem. at 5–6. The State Department had no
redactions of its own, but it specifically suggested that the Defense Department review the
documents. Stein Decl. ¶ 8. This agency was sensitive to the gravity of national security issues
contained in the reports, and it exercised caution in the release of predecisional material concerning
nuclear policy.
Thus, the Court finds that the agencies have properly invoked Exemption 5, and it will
grant defendants’ motion on this issue.
II. Exemption 6
Exemption 6 protects “personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.” Nat’l Ass’n of Retired Fed.
Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), quoting 5 U.S.C. § 552(b)(6). “Exemption
6 is designed to protect personal information in public records, even if it is not embarrassing or of
13
an intimate nature[.]” Id. at 875. The relevant inquiry is “the extent of the interference with
privacy that would be caused by disclosure of the name, address,” or other personal information.
Id.
Defendants state that the information withheld under Exemption 6 “are contractor names
and email addresses. The individuals’ names are of non-executive employees who acted in
furtherance of their contractor employment circumstances.” Perez Decl. ¶ 16. However, “the
names of the laboratory directors, who are all high-level decision makers for the various
contractors, were released.” Id. ¶ 17.
When considering the validity of redactions under Exemption 6, the “threshold question is
whether the requested information is contained in a personnel, medical, or similar file.” Nat’l
Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002), citing U.S. Dep’t of State v.
Wash. Post Co., 456 U.S. 595, 598 (1982). “Similar files” encompasses “not just files, but also
bits of personal information, such as names and addresses, the release of which would ‘create[] a
palpable threat to privacy.’” Judicial Watch, 449 F.3d at 152–53, quoting Carter v. U.S. Dep’t of
Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987). The parties do not dispute that the information at
issue falls within that category.
Next, the Court must consider whether disclosure of the information at issue – the names
and email addresses of non-executive employees of the laboratories – would constitute a “clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). This inquiry involves a two-
step process. “The first step . . . requires determining that disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest.” Am. Immigration Lawyers Ass’n v. Exec.
Office for Immigration Review (“AILA”), 830 F.3d 667, 673–74 (D.C. Cir. 2016), quoting Norton,
309 F.3d at 33 (internal quotation marks omitted). The term “substantial” merely means “anything
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greater than a de minimis privacy interest,” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224,
1229–30 (D.C. Cir. 2008), and the standard to determine whether a privacy interest is substantial
“is not very demanding.” Id. at 1230; see Norton, 309 F.3d at 35, 37 (finding that even a
“speculative” risk of invasion of privacy may be enough to establish a substantial privacy interest).
If the answer is yes, “then the court must ‘balance’ the individual’s right of privacy against
the public interest in disclosure.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir.
2015), quoting Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005). “[T]he 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.’” U.S. Dep’t of Defense v. Fed. Labor Relations
Auth., 510 U.S. 487, 495 (1994), quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom
of Press, 489 U.S. 749, 775 (1989) (emphasis in original).
Here, the Court finds that there is a substantial interest at stake in the release of the names
and email addresses of the low-level employees. Defendants did not release the names and email
addresses of “non-executive employees who acted in furtherance of their contractor employment
duties[,]” Defs.’ Mem. at 8, because “[r]elease of their names would likely cause an unwarranted
invasion of their privacy because they could be subjected to unwanted attention, scrutiny or
harassment by persons or entities harboring political, philosophical or other objections to the
mission and operations of the management and operation contracts.” Perez Decl. ¶ 16. The Court
agrees; such a disclosure would allow the general public to associate them with the planning of
possibly controversial nuclear policy and their work at NNSA’s laboratories, which relates to
national security issues.
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Plaintiff contends that this privacy interest is outweighed by the public interest in the
disclosure of the information. It argues that the public should be informed of the identity of
individuals involved in the preparation of these reports to determine whether certain government
contractors have a financial stake in the outcome or a conflict of interest that may have influenced
the information provided to the government. Pl.’s Mem. at 9. But, upon in-camera review of the
reports, it appears that all of the names that were redacted were employees at the laboratories that
wrote the reports, and all of the email addresses were government email addresses. Furthermore,
the agency averred that it released the names of the individuals who were responsible for major
decisions and who could have a financial interest in the nuclear policy decisions embedded in the
final Nuclear Posture Review. See Perez Decl. ¶ 17; Defs.’ Reply in Supp. of Summ. J. [Dkt. # 24]
(“Defs.’ Reply”) at 4. In the end, plaintiff has not explained how the names of low-level
employees, with no decision-making authority, will expose the operations of the government. See
Fed. Labor Relations Auth., 510 U.S. at 505 (Ginsburg, J., concurring).
Thus, the Court finds that the interest in keeping these employees’ names private outweighs
any public interest. The employees’ names may be redacted pursuant to Exemption 6. However,
the Court finds that the names of the laboratories associated with each individual are not
appropriately withheld under this Exemption. Therefore, that portion of an email address in
question that consists of an individual’s name may remain redacted, but the portion after the “@”
symbol that identifies the lab must be disclosed. (E.g., [redacted name] @llnl.gov, or lanl.gov).
III. Exemption 7(F)
“To fall within FOIA Exemption 7, ‘documents must first meet a threshold requirement:
that the records were compiled for law enforcement purposes.’” Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015), quoting Pub. Emps. For Envtl.
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Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex. (“PEER”), 740 F.3d
195, 202–03 (D.C. Cir. 2014). If a record satisfies Exemption 7’s threshold test, an agency may
only withhold the record pursuant to Exemption 7(F) if the record’s release “could reasonably be
expected to endanger the life or physical safety of any individual[.]” 5 U.S.C. § 552(b)(7)(F).
Exemption 7(F) “may be invoked to protect ‘any individual’ reasonably at risk of harm[,]” not
merely law enforcement personnel. Long v. U.S. Dep’t of Justice, 450 F. Supp. 2d 42, 79 (D.D.C.
2006), quoting 5 U.S.C. § 552(b)(7)(F).
NNSA 4 has redacted just two paragraphs from the stack of records pursuant to this
exemption. The information “consists of details about safety-related shut downs at various
government facilities.” Perez Decl. ¶ 19. The government claims that disclosing this information
would “reveal[] detailed information about how these facilities have been subject to safety-related
shut downs” and it “would show a level of detail about the vulnerability that could cause the
nation’s enemies to attempt to exploit the vulnerabilities further.” Id. Finally, the agency avers
that “[r]evealing this information could reasonably be expected to endanger the lives of the
employees who work at those facilities.” Id.
Plaintiff contends that defendants have not made any argument that the information at issue
were “compiled for law enforcement purposes” and so, they fail the Exemption 7 threshold test.
Pl.’s Mem. at 11. Defendants, in response, state that “law enforcement” can include “activities
associated with preventing breaches to national security.” Defs.’ Opp. at 5, citing Pratt v. Webster,
673 F.2d 408, 421 (D.C. Cir. 1982).
Based on the Court’s in-camera inspection of the information, the Court finds that the
information falls within Exemption 7(F). “‘Law enforcement entails more than just investigating
4 It appears that DoD only made redactions pursuant to Exemption 5.
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and prosecuting individuals,’” Elec. Privacy, 777 F.3d at 522, quoting PEER, 740 F.3d at 203, it
“‘includes . . . proactive steps designed to prevent criminal activity and to maintain security.’” Id.,
quoting Milner v. Dep’t of Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring). Because the
information relates to security concerns at nuclear facilities, and the declarants have credibly
averred that disclosure could make these facilities targets of foul play and endanger the individuals
who work there or the public at large, the Court finds that the information was compiled for law
enforcement purposes, and it falls within the exemption. See also Ctr. for Pub. Integrity v. U.S.
Dep’t of Energy, 234 F. Supp. 3d 65, 83 (D.D.C. 2017) (finding that DOE was entitled to redact
information that would reveal the “vulnerabilities” of “sensitive governmental programs” that
“relate to protection of nuclear materials, detection and sensing foreign nuclear weapon
proliferation and nuclear defense risks” under Exemption 7(F)). However, defendants should keep
in mind that future affiants should provide more information regarding when, by whom, and why
the information was “compiled” to show how the information falls within Exemption 7 in general,
and not simply rely on the ability to satisfy subsection (F).
Plaintiff alternatively argues that DOE has already released information regarding
“shutdowns” and so it has waived its right to claim a FOIA exemption. Pl.’s Mem. at 11–12. A
FOIA plaintiff may compel disclosure of information “even over an agency’s otherwise valid
exemption claim” if the government previously “officially acknowledged” the information. Am.
Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 620 (D.C. Cir. 2011). The D.C.
Circuit has established a “strict test” to be applied to claims of official disclosure. Moore v. CIA,
666 F.3d 1330, 1333 (D.C. Cir. 2011), quoting Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009).
Information is officially acknowledged by an agency when: (1) “the information requested [is] as
specific as the information previously released,” (2) the requested information “match[es] the
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information previously disclosed,” and (3) the requested information was already “made public
through an official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990).
Plaintiff points to two public documents that it contends qualifies as “official
acknowledgment”: (1) A July 2015 Audit Report issued by the Department of Energy Office of
Inspector General entitled “Follow-up on Nuclear Safety: Safety Basis and Quality Assurance at
the Los Alamos National Laboratory,” available at
https://www.energy.gov/sites/prod/files/2015/07/f24/A13AL046%20Issued%20Final%20Report
%20LANL%20Nuclear%20Safety%20%207-16.pdf; and (2) a June 14, 2016 Consent Order
Incorporating Agreement Between the U.S. Department of Energy, the National Nuclear Security
Administration, and National Security Technologies, LLC, available at
https://www.energy.gov/sites/prod/files/2016/06/f33/NCO-2016-
02%20NSTec%20Signed%20Consent%20Order%206-22-16.pdf. See Pl.’s Mem. at 11–12.
These public documents do not meet the strict test of official acknowledgment, because the
information requested does not match the information publicly disclosed. The information
contained in the public sources does not overlap with the information redacted in the reports.
Furthermore, the public documents that plaintiff referenced are not related to the Nuclear Posture
Review, and defendants have averred that the information in the reports that was redacted under
this exemption has not been publicly released. Decl. of John Weckerle [Dkt. # 24-2] (“Weckerle
Decl.”) ¶ 8. Thus, defendants have not waived their right to claim a FOIA exemption over the
requested information. The Court will grant defendants’ motion as to this issue.
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IV. Segregability
The Court must make a segregability determination, even if not raised by the plaintiff.
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). While agencies must
provide a detailed justification for withholdings, the Court will give a presumption of compliance
to the agency in segregating material, see Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566
F.2d 242, 260 (D.C. Cir. 1977), but the plaintiff may overcome this by presenting evidence to the
contrary. Sussman, 494 F.3d at 1117. Plaintiff has not provided any such evidence. The Court
finds that “there is no further non-exempt information that can be reasonably segregated and
released without revealing exempt information.” Perez Decl. ¶ 20; see Herrington Decl. ¶ 4.
CONCLUSION
For the reasons stated, the Court will grant the government’s motion for summary judgment
in part and deny it in part, and it will deny plaintiff’s cross motion for summary judgment.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: April 6, 2020
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