Stotter v. United States Agency for International Development ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DANIEL J. STOTTER, )
)
Plaintiff, )
)
v. ) No. 14-cv-2156 (KBJ)
)
UNITED STATES AGENCY FOR )
INTERNATIONAL DEVELOPMENT, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Daniel Stotter submitted a document request under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, to the United States Agency for
International Development (“USAID”) on April 10, 2014, seeking records that describe
“any USAID or United States financial grants or funding directed to any Pakistan based
media organizations for the purpose of supporting Pakistan related media projects[,]”
from January 1, 2007, through the time of the request. (Am. Compl., ECF No. 4, ¶ 13.)
Eight months later, on December 21, 2014, Stotter filed the instant FOIA lawsuit,
claiming that USAID had “fail[ed] to provide [him] with all non-exempt responsive
records for his April 10, 2014[,] FOIA request.” (Id. ¶ 47.) 1
1
Stotter’s complaint originally named as co-defendants the Broadcasting Board of Governors and the
Department of State. (See Compl., ECF No. 1, at 1.) These defendants have since been dismissed from
the lawsuit due to their settlements with Stotter on October 12, 2016, and November 18, 2016,
respectively. (See Notice of Settlement by Broadcasting Board of Governors, ECF No. 45; Notice of
Settlement by Department of State, ECF No. 49.)
1
Before this Court at present are the parties’ cross-motions for summary
judgment. (See Mem. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No.
17-1; Pl.’s Mot. for Partial Summ. J. and Opp’n to Def.’s Mot. (“Pl.’s Mot.”), ECF No.
21.) USAID has now produced all of the records it deems responsive to Stotter’s FOIA
request—totaling 1705 pages (see Def.’s Mot. at 11)—and the crux of the parties’
dispute is whether the agency was justified in employing FOIA Exemption 6 , as well as
Exemption 4, to redact some of the responsive documents (see Pl.’s Mot. at 7–17). 2 In
order to resolve these issues, Stotter asks the Court to conduct an in camera review of
the responsive records. (See id. at 17–18.)
For the reasons explained below, this Court finds that USAID has appropriately
relied on Exemption 6 to justify certain redactions, which clearly relate to sensitive
personal information that the agency is entitled to withhold, and the agency has also
complied with the FOIA’s segregability requirement with respect to Exemption 6 such
that no in camera review is warranted. However, due to an intervening Supreme Court
opinion that underscores the need for supplemental briefing and/or declarations, this
Court is unable to resolve the parties’ dispute regarding USAID’s invocation of
Exemption 4 based on the present record. Accordingly, USAID’s motion for summary
judgment will be GRANTED IN PART and DENIED IN PART, and Stotter’s motion
for partial summary judgment will be DENIED. A separate order consistent with the
memorandum opinion will follow.
2
Page-number citations to the documents that the parties and the Court have fil ed refer to the page
numbers that the Court’s Electronic Case Filing System (“ECF”) automatically assigns.
2
I. BACKGROUND 3
A. Factual Background
In a letter dated April 10, 2014, which was addressed to USAID, Stotter sought
copies of all records concerning “USAID or United States financial grants or funding
directed to any Pakistan based media organizations for the purpose of supporting
Pakistan related media projects[,]” between January 1, 2007, and the date of his request.
(Am. Compl. ¶ 13.) Soon after Stotter submitted this FOIA request, USAID’s FOIA
Office distributed it to various other agency branches, both in the United States and
locally in Pakistan, each of which searched for responsive records. (See Decl. of Lynn
P. Winston, Ex. 2 to Def.’s Mot., ECF No. 13-2, ¶ 6–13.) The various offices located
responsive documents and reviewed the found materials for any exempt information—
including sensitive financial or personal information—before sending the records back
to USAID’s FOIA Office. (See id. ¶¶ 6–13.)
Then, on June 5, 2014, USAID notified Stotter that some potentially responsive
records had been identified and were under review for clearance, and that , once cleared,
the documents would be released to Stotter on a rolling basis. (See Am. Compl. ¶ 18.)
Around August 24, 2014, USAID provided Stotter with the first tranche of documents—
213 responsive pages, of which 36 were produced in full and 177 were partially
redacted. (See id. ¶ 20.) According to USAID, this production consisted of grant
clearance forms for USAID’s programs in Pakistan, which USAID contractors or
grantees had submitted to request USAID approval for a sub-grant. (See Decl. of
3
The facts recited herein are alleged in the amended complaint, or in the agency’s summary judgment
motion, and have also been incorporated by reference in Stotter’s cross-motion for summary judgment.
(See Pl.’s Mot. at 4–5.) Thus, except where otherwise noted, these background facts are undisputed.
3
Stephen Lennon (“Lennon Decl.”), Ex. 1 to Def.’s Mot., ECF No. 13-1, ¶ 6.) Because
these grant clearance forms contained sensitive information about the proposed sub-
grantee, as well as USAID’s overall grantmaking strategy—including specific
information pertaining to American and Pakistani individuals and groups , such as their
precise geographic location (see id.) and budget information (see id. ¶ 10)—some of the
responsive documents were redacted.
When USAID released these documents, it clarified that the agency had not
completed its search for records that were responsive to Stotter’s FOIA request (see
Am. Compl. ¶ 20), nor had USAID completed its processing of the records that it had
located by the time Stotter filed this lawsuit in December of 2014 (see Def.’s Answer,
ECF No. 7, ¶ 26).
B. Procedural History
Stotter’s complaint, which was filed on December 21, 2014, seeks declaratory
and injunctive relief for USAID’s failure to provide him with all non-exempt records
responsive to his FOIA request of April 10, 2014. (See Am. Compl. ¶ 1.) After
Stotter’s complaint was filed, the various agency offices involved in the search for
records confirmed that they had completed their searches and had provided all
documents to the USAID FOIA Office. (See Def.’s Mot. at 10.) Thus, as of June 30,
2015, USAID had released 1,705 pages of responsive material to Stotter, some of which
was redacted pursuant to claimed exemptions. (See Ex. 1 to Def.’s Notice of Filing of
Letter Providing Bates Stamped Records, ECF No. 14-1, at 1.)
In the context of the instant lawsuit, the agency maintains that “[t]he documents
that USAID has produced are grant clearance forms for one of USAID’s programs in
Pakistan.” (Lennon Decl. ¶ 6.) “These documents are submitted by a USAID
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contractor or grantee to request USAID approval to award a sub -grant[,]” and as a
result, “[e]ach grant clearance form contains a range of details about the proposed sub -
grant[]” and “USAID’s overall strategy for the program at the local, regional, and
national scope[,]” in addition to “[i]nformation pertaining to American and Pakistani
individuals and groups, as well as their location[.]” (Id.) Consequently, the agency
claims to have withheld two general categories of information with respect to the
records it released. First, “pursuant to FOIA Exemption (b)(6), USAID redacted from
the grant clearance forms identifying information of contractor, grantee, and sub -
grantee staff and beneficiaries, and related information that could be used to identify
them, such as the name of a group with whom they were affiliated, or its location .” (Id.
¶ 9.) Second, with respect to each of the grant clearance forms, “a page of budget
information from the grantee . . . was redacted pursuant to FOIA Exemption 4.” (Id.
¶ 10.)
The parties have since proceeded to file cross -motions for summary judgment in
this Court. (See Def.’s Mot. (filed on December 14, 2015); Pl.’s Mot. (filed on January
18, 2016).) The agency’s motion argues that USAID’s supplemental declarations and
Vaughn index together sufficiently demonstrate the adequacy of the agency’s search
process, and that these filings also establish that the agency’s withholdings are justified.
(See Def.’s Mot. at 11.) For example, as relevant here, USAID argues that FOIA
Exemption 6—which covers personnel, medical, and similar files implicating personal
privacy—applies to the grant clearance forms at issue, because the material contains
myriad personal details about American and Pakistani individuals and groups, and the
disclosure of such information would compromise protected privacy interests and
5
threaten the safety of the individuals and groups mentioned in the records given the
risky security environment in Pakistan, in a manner that raises concerns that outweigh
the minimal public interest in the identifying information. (See id. at 24–25.) USAID
also contends that FOIA Exemption 4—which protects commercial and financial
information—similarly precludes the disclosure of forms that detail budgetary
information, which might cause competitive disadvantages if disclosed. (See id. at 19.)
Finally, USAID argues that, in carefully reviewing the responsive materials and
cataloguing the withholdings so as to justify the category of sensitive material the
agency has withheld, it has satisfied its segregability burden, and that no additional
non-exempt material remains to be segregated and released. (See id. at 26–27.)
Stotter’s summary judgment motion argues that USAID has improperly applied
Exemptions 6 and 4 in various ways. (See Pl.’s Mot. at 7–17.) In particular, Stotter
maintains that USAID has misapplied Exemption 6 to withhold information pertaining
to organizations, as opposed to individuals (see id. at 8–9), and that, in any event, the
agency has alleged “only highly speculative potential harm that ‘could occur,’” which
fails to exceed the public interest in the disclosure of such information ( see id. at 11–
13). Similarly, Stotter contends that USAID has improperly invoked Exemption 4 to
withhold financial information in the absence of evidence of actual competition and
evidence of the likelihood of competitive injury resulting from disclosure of the
material at issue. (See id. at 15–16.) Stotter also argues that, “by employing overly
broad withholdings and redactions” under those exemptions, the agency has failed to
satisfy its burden of releasing all reasonably segregable, non -exempt information. (See
id. at 17.)
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 The parties’ cross-motions for summary judgment have been fully briefed (see
Def.’s Reply and Opp’n to Pl.’s Cross-Mot. for Summ. J. (“Def.’s Reply”), ECF No.
31), and are now ripe for this Court’s consideration. 4
II. LEGAL STANDARDS
A. Summary Judgment In FOIA Cases
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.
2009) (citing Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C.
2007)). A district court deciding a motion for summary judgment in a FOIA case must
review the record de novo, and has the authority “to order the production of any agency
records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). “In
reviewing the agency action, the Court must analyze the facts and inferences in the light
most favorable to the FOIA requester.” Unrow Human Rights Impact Litig. Clinic v.
Dep’t of State, 134 F. Supp. 3d 263, 271 (D.D.C. 2015).
Under Rule 56 of the Federal Rules of Civil Procedure, a court may grant
summary judgment only when the pleadings, materials on file, and affidavits “show that
there is no genuine issue as to any material fact and that the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(a). To prevail on summary judgment
with respect to a FOIA claim, the agency must demonstrate that it has: (1) conducted an
4
On December 6, 2016, Stotter notified the Court that he “inadvertently did not timely file his final
reply briefing . . . due to confusion by [Plaintiff’s counsel] as to the multi-party briefing schedule[.]”
(Pl.’s Consent Mot. for Extension of Time, ECF No. 52, at 1.) The Court denied Stotter’s request for
an extension to file a reply brief, in light of “the history of this action, which includes multiple missed
deadlines and extension requests, and also Plaintiff ’s failure to demonstrate the existence of any
circumstances that justify the proposed filing of a brief that was due more than four months ago, much
less ‘exceptional’ circumstances[.]” (Minute Order of Dec. 6, 2016.)
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adequate search for responsive records, (2) withheld records only pursuant to a valid
FOIA exemption (if at all), and (3) released to the requestor all non-exempt and
reasonably segregable responsive records. See Walston v. Dep’t of Def., 238 F. Supp.
3d 57, 62 (D.D.C. 2017) (crediting the agency’s argument that “summary judgment is
warranted because it conducted an adequate search for records in response to
[Plaintiff’s] FOIA request; properly redacted its productions pursuant to the applicable
FOIA exemptions; and complied with FOIA’s segregability requirement”).
The first requirement “for an agency to prevail on summary judgment [is to]
prove that its search was reasonable[,]” Conservation Force v. Ashe, 979 F. Supp. 2d
90, 98 (D.D.C. 2013), “which it can do by submitting ‘[a] reasonably detailed affidavit,
setting forth the search terms and the type of search performed, and averring that all
files likely to contain responsive materials (if such records exist) were searched[,]’”
Reporters Comm. for Freedom of Press v. F.B.I., 877 F.3d 399, 402 (D.C. Cir. 2017)
(second alteration in original) (quoting Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)). Although the responsive records that an agency locates in the course of an
adequate search ordinarily must be released in full to the requestor, the FOIA authorizes
agencies to withhold certain documents, in whole or in part, pursuant to any of nine
statutory exemptions. See Milner v. Dep’t of Navy, 562 U.S. 562, 564 (2011). Thus,
for the agency to prevail on summary judgment, in addition to demonstrating the
adequacy of the search, the agency must “demonstrate that the records have not been
improperly withheld.” Ctr. for the Study of Servs. v. Dep’t of Health & Human Servs.,
874 F.3d 287, 288 (D.C. Cir. 2017) (internal quotation marks and citation omitted).
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“The burden is on the agency to justify withholding the requested documents,
and the FOIA directs district courts to determine de novo whether non-disclosure was
permissible.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 777 F.3d 518, 522
(D.C. Cir. 2015). Affidavits from agency officials that explain the withholdings are
sufficient to support summary judgment “when the affidavits describe 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
773, 776 (D.C. Cir. 1984)). By contrast, “conclusory and generalized allegations of
exemptions” do not suffice to support summary judgment. Morley v. C.I.A., 508 F.3d
1108, 1115 (D.C. Cir. 2007) (quoting Founding Church of Scientology of Wash., D.C.,
Inc. v. N.S.A., 610 F.2d 824, 830 (D.C. Cir. 1979)). In addition, an agency may seek to
justify its withholdings by presenting a detailed listing of the records at issue, the
information withheld, and the justification for any withholding. See generally Vaughn
v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
Finally, because the FOIA further mandates that “[a]ny reasonably segregable
portion of a record shall be provided to any person requesting such record after deletion
of the portions which are exempt[,]” 5 U.S.C. § 552(b), the agency has a duty to
produce all non-exempt portions of records that can be reasonable segregated from the
exempt parts, and the court must ensure that this segregability requirement is followed,
even if it must do so sua sponte. See Morley, 508 F.3d at 1123.
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B. FOIA Exemption 6
FOIA Exemption 6 pertains to “personnel and medical files and similar files”
when the disclosure of such information “would constitute a clearly unwarranted
invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6). Thus, this exemption protects an
individual’s substantial privacy interests in the absence of a superseding public interest
in disclosure. See, e.g., Nat’l Association of Home Builders v. Norton, 309 F.3d 26, 33
(D.C. Cir. 2002); Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1230 (D.C.
Cir. 2008). This means that “corporations, businesses[,] and partnerships have no
privacy interest whatsoever under Exemption 6[,]” Washington Post Co. v. Dep’t of
Agric., 943 F. Supp. 31, 37 n.6 (D.D.C. 1996); see also Canning v. Dep’t of State, 134
F. Supp. 3d 490, 514 (D.D.C. 2015); however, “to the extent that identifying
information such as an organization’s address can implicate the privacy of individuals,
releasing such sensitive information about the organization is functionally the same as
releasing similar information about the organization’s individual members[,]” and is
thus exempted under the FOIA’s Exemption 6, Pavement Coatings Tech. Council v.
U.S. Geological Survey, 436 F. Supp. 3d 115, 131 (D.D.C. 2019).
Courts generally follow a two-step process when considering withholdings or
redactions pursuant to Exemption 6. First, the court determines whether the records are
the type of personnel, medical, or similar files that the exemption covers. “The
Supreme Court has interpreted the term ‘similar files’ broadly so as ‘to cover detailed
Government records on an individual which can be identified as applying to that
individual.’” Ayuda, Inc. v. F.T.C., 70 F. Supp. 3d 247, 264 (D.D.C. 2014) (quoting
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)); see also Roseberry-
Andrews v. Dep’t of Homeland Sec., 299 F. Supp. 3d 9, 29 (D.D.C. 2018). Second, if the
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records are of the type covered by the exemption, the court proceeds to determine
whether their disclosure “would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6); see also Dep’t of Air Force v. Rose, 425 U.S. 352, 382
(1976); Long v. I.C.E., 279 F. Supp. 3d 226, 243 (D.D.C. 2017).
This latter step itself entails another two-prong analysis, see Am. Immigration
Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 673–74 (D.C. Cir.
2016), whereby the court first determines whether “disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest[,]” Nat’l Ass’n of Home
Builders, 309 F.3d at 33 (internal quotation marks and citation omitted), and, if a
substantial privacy interest is implicated, the court proceeds to evaluate “whether the
public interest in disclosure outweighs the individual privacy concerns [,]” Multi Ag
Media., 515 F.3d at 1230 (D.C. Cir. 2008) (internal quotation marks and citation
omitted). Notably, “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 Defense v. F.L.R.A., 510 U.S. 487, 495
(1994) (emphasis in original) (quoting Dep’t of Justice v. Reporters Comm. for
Freedom of Press, 489 U.S. 749, 775 (1989)); see also Roseberry-Andrews, 299 F.
Supp. 3d at 29–30.
C. FOIA Exemption 4
Under FOIA Exemption 4, “trade secrets and commercial or financial
information” that an agency obtains from a person and that is otherwise “privileged or
confidential” may be withheld. 5 U.S.C. § 552(b)(4). Thus, an agency may rely on
Exemption 4 if it can establish that withheld information is “(1) commercial or
11
financial, (2) obtained from a person, and (3) privileged or confidential.” Pub. Citizen
Health Research Grp. v. F.D.A., 704 F.2d 1280, 1290 (D.C. Cir. 1983) (internal citation
omitted); see also 5 U.S.C. § 551(2) (defining “person” broadly to “include[] an
individual, partnership, corporation, association, or public or private organization other
than an agency”). Only the last prong is at issue here.
The Supreme Court has recently “set forth a single test for determining whether
information—regardless [of] whether voluntarily or involuntarily submitted to the
government—is confidential under Exemption 4.” Ctr. for Investigative Reporting v.
U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 109 (D.D.C. 2019). Specifically,
“[a]t least where commercial or financial information is [1] both customarily and
actually treated as private by its owner and [2] provided to the government under an
assurance of privacy, the information is ‘confidential’ within the meaning of Exemption
4.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019). Although
the Supreme Court did not “need to resolve” whether the second condition it announced
was necessary in every case, it is clear beyond cavil that whether the agency provided
an “assurance of privacy” when it receive the information is relevant to determining
whether financial information that is shared with the government is “confidential”
pursuant to the FOIA’s Exemption 4. Id. at 2363; see also Ctr. for Investigative
Reporting, 436 F. Supp. 3d at 109.
D. FOIA’s Segregability Requirement
Finally, if an agency demonstrates with reasonably specific detail that the
information it has withheld logically falls within one of the FOIA’s exemptions, and if
contrary evidence or agency bad faith does not controvert this justification for the
withholdings, courts conclude that the agency has appropriately applied the claimed
12
exemptions to withhold the disputed information. See Larson v. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009). However, the FOIA also expressly requires agencies to
extract “[a]ny reasonably segregable portion of a record” and provide it to the
requesting party “after deletion of the portions which are exempt.” 5 U.S.C. § 552(b).
The difference between the segregability requirement and the FOIA’s more general
requirement of disclosure of non-exempt information is that segregability is specifically
concerned with extricability and acknowledges the practical limitations of disclosure
insofar as non-exempt and exempt material may be inextricably interlaced . Indeed, “it
has long been the rule in this Circuit that non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with exempt portions.” Wilderness
Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting Mead Data
Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)) (emphasis in
original) (alteration omitted). Furthermore, “a district court must not ‘simply approve
the withholding of an entire document without entering a finding on segregability, or
the lack thereof.’” Barouch v. Dep’t of Justice, 962 F. Supp. 2d 30, 55 (D.D.C. 2013)
(quoting Schiller v. N.L.R.B., 964 F.2d 1205, 1210 (D.C. Cir. 1992)).
“To withhold the entirety of a document, the agency must demonstrate that it
cannot segregate the exempt material from the non -exempt and must disclose as much
as possible.” Hertzberg v. Veneman, 273 F. Supp. 2d 67, 90 (D.D.C. 2003). This
showing requires more than “conclusory statements to demonstrate that all reasonably
segregable information has been released.” Valfells v. C.I.A., 717 F. Supp. 2d 110, 120
(D.D.C. 2010) (internal quotation marks omitted). The government m ay meet its
obligation of “reasonable specificity” through “[t]he combination of the Vaughn index
13
and [agency] affidavits[,]” Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776
(D.C. Cir. 2002), and the agency need not “commit significant time and resources to the
separation of disjointed words, phrases, or even sentences which taken separately or
together have minimal or no information content . . . because the cost of line-by-line
analysis would be high and the result would be an essentially meani ngless set of words
and phrases.” Mead Data, 566 F.2d at 261 & n.55; see also Johnson, 310 F.3d at 776
(explaining that, “[i]n order to demonstrate that all reasonably segregable material has
been released, the agency must provide a detailed justification ” for the withheld
information’s non-segregability, but “the agency is not required to provide so much
detail that the exempt material would be effectively disclosed.” (cleaned up)).
Where the agency has outlined its review process in detail to show compliance, it
is not necessary for the court to conduct in camera review to confirm that the agency
has complied with the segregability requirement. See Jett v. F.B.I., 241 F. Supp 3d 1,
14 (D.D.C. 2017) (holding that, “[i]n the absence of any reason to believe the
[agency’s] representation is not made in good faith, the court is satisfied that the
[agency] has demonstrated it released to [the requester] any segregable, nonexempt
portions of the records at issue”). The D.C. Circuit has also held that, “[w]hen the
agency meets its burden by means of affidavits, in camera review is neither necessary
nor appropriate.” Am. Civil Liberties Union v. Dep’t of Def., 628 F.3d 612, 626 (D.C.
Cir. 2011) (internal quotation marks omitted) (quoting Hayden v. N.S.A., 608 F.2d
1381, 1387 (D.C. Cir. 1979)).
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III. ANALYSIS
In their cross-motions for summary judgment, the parties are at odds over
whether it is appropriate for USAID to invoke FOIA Exemptions 6 and 4 under the
circumstances presented here, and whether the agency has fulfilled its obligation to
release all segregable material. (Compare Pl.’s Mot. at 3–4 (arguing that USAID has
made improper withholdings and has failed to satisfy its statutory obligation to release
all reasonably segregable non-exempt material) with Def.’s Mot. at 8 (asserting that
USAID has properly justified its withholdings and has complied fully with the FOIA’s
segregability requirement ).) For the reasons explained below, this Court concludes
that USAID’s invocation of Exemption 6 was proper with respect to the documents at
issue, and that the agency is entitled to summary judgment concerning those particular
withholdings, because it has demonstrated that all reasonably segregable material has
been released. However, due to intervening binding precedent, the record is presently
insufficient to allow the Court to determine whether the agency has properly justified
its withholdings pursuant to Exemption 4, or whether USAID has complied with the
FOIA’s segregability requirement with respect to this exemption.
A. USAID’s Withholding Of Identifying Information Was Proper Under
FOIA Exemption 6
The FOIA request at issue in this case sought copies of the grant clearance forms
that relate to USAID’s funding of Pakistan-based media organizations, among other
things (see Pl.’s Mot. at 3–4), and as it turned out, those grant forms constituted the
entirety of the records that USAID located in response to Stotter’s request (see Def.’s
Mot. at 24 (citation omitted)). USAID released redacted copies of those records,
claiming, inter alia, that the agency was entitled to withhold personal identifying
15
information concerning individual and organizational grantees pursuant to Exemption 6.
(See id. at 19–26.) As explained below, this Court concludes that USAID has made the
requisite showing that the information it has withheld pursuant to Exemption 6 logically
falls within the scope of that exemption, because the records qualify as the types of
records to which Exemption 6 applies, and the privacy interests at stake are both
substantial and outweigh any public interest in disclosure. See Pavement Coatings, 436
F. Supp. 3d at 130.
To begin with, the Court has little doubt that the withheld information in the
grant records qualifies as “similar files” for the purpose of Exemption 6, because the
“similar files” qualification pertains not only to entire records, but also “bits of
personal information, such as names and addresses,” the disclosure of which would
create “a palpable threat to privacy.” Judicial Watch, Inc. v. F.D.A., 449 F.3d 141,
152–53 (D.C. Cir. 2006) (quoting Carter v. Dep’t of Commerce, 830 F.2d 388, 391
(D.C. Cir. 1987)). So, for example, even when the requested records do not themselves
qualify as “personnel” files, “[t]he names and contact information of federal employees
are the type of information that is eligible for withholding under Exemption 6.” Long,
279 F. Supp. 3d at 243.
Here, the grant forms that Stotter seeks contain personal, identifying information
about the grant recipients, and USAID represents that it has “redacted from the grant
clearance forms identifying information of contractor, grantee, and sub -grantee staff
and beneficiaries, and related information that could be used to identify them, such as
the name of a group with whom they were affiliated, or its location.” (Lennon Decl.
¶ 9.) This Court sees no material difference between the information that USAID has
16
withheld here and the “names[,] work locations, and other personally identifiable
information” that has been deemed clearly protected under Exemption 6 in prior cases .
Roseberry-Andrews, 299 F. Supp. 3d at 30.
In addition to establishing that the redacted information in the grant clearance
forms at issue falls within the scope of Exemption 6, USAID has also demonstrated that
the privacy interest in non-disclosure is a substantial one and not “de minimis.” Nat’l
Ass’n of Home Builders, 309 F.3d at 33. As USAID maintains (see Def.’s Reply at 4–
5), there is a recognized risk that the release of identifying information concerning
individuals who are tied to the U.S. government and who work in a sensitive
geopolitical region like Pakistan might subject those individuals to targeting, potential
inquiries, or harassment. See Long, 279 F. Supp. 3d at 243–44 (finding that “employees
have a legitimate privacy interest in avoiding targeted harassment based on their role ”
in certain sensitive employment-related duties). And in this regard, USAID’s
declarations ably explain that, “[i]n its work in Pakistan, the U.S. government faces a
somewhat risky security environment, one in which U.S. Government staff . . . are
careful not to openly advertise their U.S Government affiliation due to se curity risks
and occasional threats.” (Lennon Decl. ¶ 7.) Indeed, apparently, “[t]he risks of
advertising U.S. affiliation have been noted to USAID in meetings with officials
representing the Government of Pakistan and by staff of USAID funded contractors and
grantees[,]” and the declaration avers that “[t]he violent extremist actors who are
responsible for these threats and who oppose U.S. Government activities would pose a
security risk to persons and groups identified in the grant clearance forms as being
affiliated with USAID.” (Id. ¶ 8.)
17
Lastly, the privacy interest in withholding identifying information regarding
USAID-affiliated grantees in Pakistan outweighs any public interest in the disclosure of
information. In fact, it is not at all clear how the withheld information advances the
general public interest in shedding light on “the operations or activities of government,”
Dep’t of Def. v. F.L.R.A., 510 U.S. 487, 495 (1994) (internal quotation marks and
citation omitted), and the seemingly de minimis interest in the identified of the
individuals and groups named in the grant records must be weighed against the
substantial personal privacy interests that these records implicate (see Lennon Decl.
¶¶ 7–8). It is also clear that the unredacted information that USAID has released already
details the agency’s operations and activities that involve expanding access to , and
improving, the quality of media in Pakistan. (See, e.g., Ex. B to Pl.’s Mot., ECF No.
21-2, at 9–14 (providing the “Program Description” and “over-arching goals” for an
agency program called “Enabling Progressive Media Voices in Pakistan”).) Thus,
“[t]he incremental value of revealing the identity of the affected individuals . . . would
provide only a small benefit to the public interest[ ,]” Pinson v. Dep’t of Justice, 243 F.
Supp. 3d 74, 84 (D.D.C. 2017) (internal citation and quotation marks omitted)) , and that
interest is not manifestly more important than the privacy interest of grantees or
partners of the USAID in Pakistan.
Stotter’s arguments in support of the view that the information at issue has
nevertheless been improperly withheld are unpersuasive. For instance, Stotter
maintains that USAID has submitted a Vaughn index and affidavits that are insufficient
to distinguish between personal identifying information involving individuals (which
Exemption 6 protects) and personal identifying information involving organizations as
18
a whole (to which Exemption 6 is inapplicable). (See Pl.’s Mot. at 8; see also, e.g.,
Def.’s Vaughn Index, Ex. 3 to Def.’s Mot., ECF No. 13-3, at 1 (explaining that the
information redacted relates to “individuals and groups” (emphasis added)).) To be
sure, as explained above, courts have consistently held that Exemption 6 “cover[s]
detailed Government records on an individual which can be identified as applying to
that individual” and whose disclosure might invade that individual’s privacy interests,
Ayuda, 70 F. Supp. 3d at 264 (internal citation and quotation marks omitted), and that
“organizations have no privacy interests” under Exemption 6 , Canning, 134 F. Supp. 3d
at 514. But the “privacy interest at stake may vary depending on the context in which it
is asserted[,]” Armstrong v. Executive Office of the President, 97 F.3d 575, 582 (D.C.
Cir. 1996), and Stotter fails to explain why the individual-versus-organization
distinction makes any difference in this particular case.
In particular, courts in this circuit have long held that, under certain
circumstances, “an individual person’s privacy interests might be implicated even if the
name or address at issue pertains to an organization or other non-individual entity.”
Pavement Coatings, 436 F. Supp. 3d at 131. For example, where “organizations whose
identities have been withheld are very small[,]” the “organizational identity of . . .
grantees is information [that] . . . ‘applies to a particular individual,’ and thus . . . may
be protected from disclosure by Exemption 6 of the FOIA.” Bigwood, 484 F. Supp. 2d
at 76. This same analysis gave rise to the D.C. Circuit’s conclusion in Judicial Watch,
Inc. v. F.D.A., 449 F.3d 141 (D.C. Cir. 2006), where the FDA had redacted “the names
of agency personnel and private individuals and companies who worked on the approval
of mifepristone”—an abortion medication—as well as “the street addresses of the
19
intervenors and all business partners associated with the manufacturing of the drug.”
Id. at 153. The D.C. Circuit held that the invocation of Exemption 6 was proper with
respect to both individuals and non-individual entities, because the FDA’s affidavits
had “fairly asserted abortion-related violence as a privacy interest for both the names
and addresses of persons and businesses associated with mifepristone[,]” id. (emphasis
added), and concluded that, because “[t]he privacy interest extends to all such
employees[,]” the agency did not need to “justify the withholding of names on an
individual-by-individual basis under FOIA Exemption 6[,]” id. (cleaned up).
So it is here. USAID has averred that violence might befall both individuals and
organizations in Pakistan if their ties to the United States are revealed. (See Lennon
Decl. ¶¶ 7–8.) Accordingly, the agency asserts that withholding identifying information
about grantee-organizations is necessary to protect the security of a grantee-
organization and its individual employees, and “to the extent that identifying
information such as an organization’s address [or name] can implicate the privacy of
individuals, releasing such sensitive information about the organization is functionally
the same as releasing similar information about the organization’s individual
members[,]” Pavement Coatings, 436 F. Supp. 3d at 131. Notably, although Stotter
maintains that any alleged harm to the identified individuals and groups is merely
speculative (see Pl.’s Mot. at 11–12), Stotter does not dispute that Pakistan remains a
“risky security environment” from the standpoint of U.S.-Pakistani relations (Def.’s
Mot. at 24–25; see also Pl.’s Mot. at 11–12). And USAID’s affidavits not only explain
in detail the threats faced by U.S.-affiliated individuals and organizations in Pakistan
generally (see Lennon Decl. ¶¶ 7–8), but also note that there are heightened security
20
concerns with respect to the records that Stotter seeks, given that “[t]he documents at
issue here primarily relate to USAID programming in the Federally A dministered Tribal
Areas in the Khyber Pakhtunkhwa province (sometimes referred to as FATA/KP),
which is one of the most insecure areas of Pakistan” (id. ¶ 7). Thus, because “publicly
identifying” USAID’s grantees “would subject those individuals” to “potentially
malicious inquiries” or “even harassment[,]” disclosure of their identities implicates a
substantial privacy interest for the purpose of Exemption 6. Long, 279 F. Supp. 3d at
244 (emphasis added).
Finally, Stotter’s conclusory assertion that there is “a very significant public
interest” in the requested identifying information—which is supported solely by his
own declaration contending as much (Pl.’s Mot. at 13 (citing Decl. of Daniel J. Stotter,
Ex. 2 to Pl.’s Mot., ECF No. 21-2, ¶¶ 3–8); see also id. at 13–14)—does little to suggest
or demonstrate that there is a substantial public interest in the identities of these
grantees and affiliates in particular, such that their private interests in nondisclosure is
overcome. See Salas v. Office of Inspector General, 577 F. Supp. 2d 105, 112 (D.D.C.
2008). Stotter also fails to point to any public good or need that disclosure would
promote, see Martin v. Dep’t of Justice, 488 F.3d 446, 458 (D.C. Cir. 2007) (explaining
that “the public interest sought to be advanced” must be “more specific than [the
requestor] having the information for its own sake” (citation omitted)), nor has he
established that the withheld identifying information has inherent value or in any way
advances the public’s interest in understanding USAID’s operations or activities, see
Dep’t of Def., 510 U.S. at 495.
21
In sum, the withheld information is of the type that Exemption 6 protects, and
there is a substantial privacy interest in the requested identifying information due to the
personal security risks that disclosure poses, which clearly outweighs the negligible
public interest in the release of that information in light of the related programs and
activities of USAID that have already been disclosed. Therefore, the Court concludes
that the agency’s withholdings of personal identifying information concerning
individuals and organizations in the requested grant forms are authorized under
Exemption 6.
B. With Respect To The Agency’s Withholdings Pursuant To Exemption 6,
USAID Has Complied With FOIA’s Segregability Requirement
It is also clear to this Court that USAID has met its segregability burden with
respect to the information that is has withheld pursuant to Exemption 6. After
collecting the 1,705 pages of documents responsive to Stotter’s FOIA request ( see
Def.’s Mot. at 11), USAID “carefully examined each of the responsive documents and
released all reasonably segregable nonexempt information to Plaintiff ,” accompanied by
a “chart that summarizes representative information contained in each grant clearance
form determined to be responsive to Plaintiff’s FOIA request and the potentially
sensitive information that may appear in these documents and that may be redacted for
particular grants[.]” (Def.’s Mot. at 26–27; see also Lennon Decl. ¶ 11.) The agency’s
Vaughn index and affidavits were exceedingly specific in detailing the categories of
identifying responsive information which it chose to redact from each of the grant
clearance forms under Exemption 6. 5 In addition, the agency’s declarations explain the
5
For example, the index states that the redaction pertains to “all or part of [the] following fields[:]
Grant Activity Number; Grant Activity Name; Awardee; Point of Contact/Awardee Contact (Including
Work Phone, Mobile, Fax Number, Email, Address, City and Postal Code); Activity
22
reasons for withholding each category of information pursuant to Exemption 6. (See,
e.g., Lennon Decl. ¶ 11 (explaining that “[p]ortions of the grant activity number are
often redacted because the alphanumeric codes contain indications of where grant
activities occur and which implementing partner is responsible for the activity”).) And
it appears that the agency deliberately released some information that was not otherwise
deemed protected under a FOIA exemption. (See, e.g., Attachments B and C, Ex. 2 to
Pl.’s Mot., ECF No. 21-2, at 9–16 (attaching a document Stotter received that details
the objectives of a specific media program, as well as a copy of the accompanying
cooperative agreement and total sum awarded to the media partner, with neither
attachment revealing detailed financial information or personal information regarding
affiliated individuals).)
USAID also revisited fields that it had formerly “redacted in some instances in
the initial release of documents” and proceeded to release information in a subsequent
disclosure. (See Lennon Decl. ¶ 11 n.1.) Thus, the line-by-line analysis for the 1,705
responsive records was neither “short in length [nor] small in number” (Def.’s Reply at
10); yet, the agency undertook the difficult task of untangling the non -exempt from the
exempt material. See Mead Data, 566 F.2d at 261 n.55 (recognizing the cost of line-by-
line analysis); see also Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 19
(D.D.C. 2004) (noting that it is not sufficient for the agency merely to present “a
blanket declaration that all facts are so intertwined” as not to be reasonably segregable).
The fact that the agency specified the sensitive fields that were redacted from the
release, released the fields not subject to Exemption 6, and even reconsidered former
Summary/Justification; Tehsil, Town, City/Village[.]” (Def.’s Vaughn Index at 1.)
23
redactions gives the Court confidence that USAID made a serious effort to release what
it could, and excluded only that which was permissible under Exemption 6. This
showing gives rise to a presumption of compliance with the segregability requirement,
cf. Soto v. Dep’t of State, 118 F. Supp. 3d 355, 370 (D.D.C. 2015), and as a result, the
Court concludes that USAID has satisfied its segregability burden with respect to
Exemption 6.
C. This Court Cannot Determine At This Time Whether USAID’s
Withholding Of Budgetary Information Was Proper Under FOIA
Exemption 4
With respect to USAID’s withholdings that are purportedly justified based on
FOIA Exemption 4, the parties dispute whether the information that Stotter has
requested—i.e., “any USAID or United States financial grants or funding directed to
any Pakistan based media organizations” (Am. Compl. ¶ 13)—qualifies as
“confidential” information for the purpose of Exemption 4. See Pub. Citizen, 704 F.2d
at 1290 (explaining that, per the terms of the FOIA, information that is provided to the
government is protected from wider public disclosure under Exemption 4 if that
information is “(1) commercial or financial, (2) obtained from a person, and (3)
privileged or confidential”). Until recently, in the D.C. Circuit, a court’s analysis of
whether financial information was confidential pursuant to Exemption 4 “turn[ed] on
whether the information was provided to the government voluntarily or involuntarily[,]”
100Reporters LLC v. Dep’t of Justice, 248 F. Supp. 3d 115, 138 (D.D.C. 2017), and if
the information was provided involuntarily—as is the case with the financial records
that are a required component of the USAID grant applications—the court further
evaluated whether a substantial and actual competitive injury would result from its
disclosure, see Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C.
24
Cir. 1976). 6 Accordingly, the parties in the instant matter centered their respective
arguments around this test (see Pl.’s Mot. at 15–16; Def.’s Reply at 8–9), and the
agency’s affidavits and Vaughn index similarly focused on assertions of competitive
harm (see Lennon Decl. ¶ 10 (“If released, the budget information in the [grants under
contract] could a cause competitive cost disadvantage with other partners or grantees.”);
Vaughn Index at 1 (explaining that disclosing certain information “could cause
competitive harm by: (1) allowing competing implementing partners to gain a
competitive cost advantage over one another and/or (2) allowing vendors to collude and
drive up prices at the expense of U.S. Government assistance”)).
However, while the instant case was pending, the Supreme Court abrogated the
D.C. Circuit’s competitive-harm test, see Food Mktg. Inst., 139 S. Ct. at 2365–66, such
that the applicable standard now requires an assessment of “two conditions that might
be required for information communicated to another to be considered confidential[,]”
regardless of whether the information is voluntarily or involuntarily shared with the
government: (1) whether the information is “customarily and actually treated as private
by its owner[,]” and (2) whether it was “provided to the government under an assurance
of privacy[,]” id. at 2366. And because neither Stotter nor USAID has addressed this
new test for confidentiality, this Court is unable to resolve the parties’ Exemption 4
dispute based on the record presently before it. Consequently, and for this reason
6
Long-standing D.C. Circuit precedent held that financial information that was provided to an agency
voluntarily was to be treated as confidential for Exemption 4 purposes only “if it [was] of a kind that
would customarily not be released to the public by the person from whom it was obtained.” Critical
Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992). But if the agency
had obtained financial material through an involuntary disclosure, the D.C. Circuit treated that
information as “confidential” under Exemption 4 if the agency demonstrated that the persons who
submitted the information “(1) actually face competition, and (2) substantial competitive injury would
likely result from disclosure.” Nat’l Parks, 547 F.2d at 679.
25
alone, this Court cannot order summary judgment in favor of either party at this time,
and it will require supplemental briefing in order to resolve the remaining legal issues
in this case.
IV. CONCLUSION
As set forth in the accompanying Order, and for the reasons explained above,
Defendant USAID’s motion for summary judgment must be GRANTED IN PART and
DENIED IN PART, and Plaintiff’s cross-motion for summary judgment must be
DENIED in full. The agency has established that it has properly invoked FOIA
Exemption 6 to justify the withholdings that pertain to the identifying information of
individuals and organizations that are contained in the requested records , and it has also
sufficiently demonstrated that it has complied with the FOIA’s segregability obligation
with respect to those Exemption 6 withholdings. But due to an intervening change in
the applicable standards for evaluating withholdings under Exemption 4, the Court
cannot yet rule on the propriety of USAID’s withholdings pursuant to that exemption .
Supplemental briefing is required, and will be ordered.
DATE: October 3, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
26