Cook v. National Archives & Records Administration

No. 13-1228-cv
Cook v. Nat'l Archives & Records Admin.
In the
United States Court of Appeals
For the Second Circuit
August Term, 2013
No. 13-1228-cv
JOHN COOK,
Plaintiff-Appellant,
v.
NATIONAL ARCHIVES & RECORDS ADMINISTRATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of New York.
No. 11-cv-8624 ― Kevin T. Duffy, Judge.
ARGUED: MARCH 10, 2014
DECIDED: JULY 8, 2014
Before: LEVAL, POOLER, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Kevin T. Duffy, Judge)
COOK V. NAT'L ARCHIVES & RECORDS ADMIN.
dismissing plaintiff-appellant's complaint under the Freedom of
Information Act, 5 U.S.C. § 552. Plaintiff-appellant sought from the
National Archives records relating to requests for archived materials
made by or on behalf of a former President and Vice-President of the
United States. The district court granted summary judgment to
defendant-appellee National Archives and Records Administration,
concluding that the records fell within Exemption 6 of the statute.
AFFIRMED.
MAXWELL S. MISHKIN, Law Student (David A.
Schulz, Supervising Attorney, and Joshua S.
Weinger, Law Student, on the brief), Media
Freedom & Information Access Clinic, Yale Law
School, New Haven, Connecticut, and Charles S.
Sims, Proskauer Rose LLP, New York, NY, for
Plaintiff-Appellant.1
DAVID S. JONES, Assistant United States Attorney
(Benjamin H. Torrance, Assistant United States
Attorney, on the brief), for Preet Bharara, United
States Attorney for the Southern District of New
York, New York, NY, for Defendant-Appellee.
CHIN, Circuit Judge:
Plaintiff-appellant John Cook, a reporter, brought suit under
the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking
1 The law students appeared in this Court pursuant to Local Rule 46.1(e).
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disclosure of records held by defendant-appellee the National
Archives and Records Administration ("NARA"). Cook seeks to
obtain records of requests for archived presidential and vice-
presidential materials submitted to NARA by or on behalf of former
President George W. Bush and former Vice-President Richard B.
Cheney. The principal issue presented is whether the records fall
within FOIA's Exemption 6, which permits the withholding of
"personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6). The district court (Kevin T. Duffy,
Judge) granted summary judgment to NARA, holding that
Exemption 6 applies.
We conclude that the records are protected by Exemption 6.
Archivists and librarians have long refrained from disclosing
information about who requests materials from their collections and
what materials they are seeking, without the requesting party's
consent. These requests of the former President and Vice-President
at issue here, made for purposes of their private research, perhaps
for preparation of memoirs, reveal their preliminary thinking and
personal matters. The disclosure of this information would indeed
"constitute a clearly unwarranted invasion of personal privacy."
Accordingly, we affirm.
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BACKGROUND
I. NARA's Maintenance of Presidential Records
In passing the Presidential Records Act of 1978 (the "PRA"),
Congress made presidential and vice-presidential records the
property of the United States, ending the historic practice of
presidents taking ownership of records created during their
administrations. 44 U.S.C. § 2202; see Nixon v. United States, 978 F.2d
1269, 1277 n.19, 1284 (D.C. Cir. 1992). Under the PRA, "Presidential
records" include:
documentary materials, or any reasonably
segregable portion thereof, created or received by
the President, his immediate staff, or a unit or
individual of the Executive Office of the President
whose function is to advise and assist the
President, in the course of conducting activities
which relate to or have an effect upon the
carrying out of the constitutional, statutory, or
other official or ceremonial duties of the
President.
44 U.S.C. § 2201(2). The PRA entrusts these presidential records to
NARA. Id. § 2203(f). Vice-presidential records are treated similarly.
Id. § 2207.
Former President Bush's records are housed at the NARA-
controlled George W. Bush Presidential Library in Dallas, Texas, and
former Vice-President Cheney's at NARA's Washington, D.C.
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archives. Like the other historical records it maintains, NARA
makes these records available to the public for research.
Id. § 2203(f)(1); 36 C.F.R. § 1254.1(b).
There are limits on access. Presidential and vice-presidential
records are not publicly available during a period of up to five years
while NARA processes and organizes records it receives. 44 U.S.C.
§ 2204(b)(2)(A)-(B). Before leaving office, a president or vice-
president may also designate a period of up to twelve years during
which certain records will be unavailable to the public. Id. § 2204(a).
During periods when the records are not yet available to the
public, former presidents and vice-presidents, or their designated
representatives, may access the archived records of their respective
administrations by submitting special access requests. Id. § 2205(3).
The incumbent president, the judiciary, and Congress may also
request archived records of prior administrations, but only in
connection with their official duties. Id. § 2205(2). At the Bush
Library, once special access requests are received -- often by email
and sometimes orally -- a paper folder is created reflecting the
request. The requests "are logged by date of receipt, and reveal the
identity of the specific requestor (an authorized representative of
former President George W. Bush) and the specific item or
information sought." J.A. at 113-14 ¶ 16.
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NARA maintains that it treats the special access requests
received from former officials or their representatives "in a manner
wholly consistent with how [it] handle[s] typical researcher requests
in terms of the privacy and confidentiality afforded to any
requestors." Id. at 115 ¶ 21. As set forth in its staff manual, NARA's
general policy on the disclosure of researcher requests is as follows:
"Unless required by law, staff members will not reveal the subject of
a researcher's project or the specific items provided to a researcher
without the express consent of the researcher." Id. at 116 ¶ 21.
II. Cook's FOIA Request and NARA's Response
By letter dated October 21, 2010, Cook submitted a FOIA
request to NARA seeking: (1) "copies of all requests for access to
records received by the [Bush Library] since February 1, 2009"; (2)
"copies of all requests for access to the records of former
Vice-President Dick Cheney received by NARA staff since February
1, 2009"; and (3) "any subsequent correspondence regarding those
requests, with the exclusion of copies of records governed by the
[PRA]." Id. at 19. Cook did not seek the Bush/Cheney records
themselves; he only sought NARA's documentation of the requests
for the records. His stated purpose for seeking these records was "to
gain insight into the way in which the former President and Vice
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President have chosen to shape the public's perception of their time
in office." J.A. at 8 ¶ 5.
NARA responded by letter dated December 1, 2010. The
agency explained that requests for access to the Bush/Cheney
records came in the form of either (a) special access requests
submitted by current and former officials or (b) public FOIA
requests. First, with respect to the special access requests, the
agency stated: "[NARA] treats these requests as researcher reference
requests. . . . These records include but are not limited to the
following categories: correspondence between NARA staff and
researchers containing information about the research topic(s),
field(s) of interest, identification of requested records, and other
information furnished by the researcher." J.A. at 22. The agency
further informed Cook that, because it protects the privacy of
researchers, it would withhold the records of the special access
requests under FOIA's Exemption 6.
Second, with respect to Cook's FOIA demand for public FOIA
requests, NARA indicated that "FOIA requesters are not subject to
the same right to privacy as . . . researchers." Id. at 23. Thus, the
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agency made available to Cook redacted copies of all such FOIA
requests, as well as its responses to those requests.2
Cook filed an administrative appeal by letter dated January
3, 2011, protesting NARA's decision to withhold the records of the
special access requests. In response, NARA amended its initial
decision by letter dated June 3, 2011. The agency distinguished
special access requests submitted by the former officials (former
President Bush, former Vice-President Cheney, and their designated
representatives) from special access requests submitted by current
officials (the incumbent President, Congress, and the judiciary).
NARA deemed the former officials' special access requests to be
"researcher reference requests that have been made [by or] on behalf
of private citizens" and thus properly withheld under Exemption 6.
Id. at 32. In contrast, NARA deemed the current officials' special
access requests to be in furtherance of "official business" and thus
not entitled to protection as private researcher reference requests.
2 Cook's FOIA request also sought "[a]ny agreements or memoranda of
understanding between the [Bush Library] and any researchers, scholars, former
government officials, or any other entities governing current or future access to
records maintained by the Library." J.A. at 19. The agency, however, found no
responsive records.
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COOK V. NAT'L ARCHIVES & RECORDS ADMIN.
Id. Accordingly, Cook was permitted access to the current officials'
requests, but not the former officials' requests.
Cook filed suit in the district court to challenge NARA's
failure to produce the records he requested. The only issue on
appeal is NARA's decision with respect to the special access requests
of the former officials.
III. Proceedings Before the District Court
In the district court, the parties agreed to narrow Cook's FOIA
request to (a) records of the special access requests submitted by
former President Bush, former Vice-President Cheney, or their
designated representatives; (b) NARA's written responses to the
requests; and (c) internal NARA documents memorializing requests
that were not in writing. NARA identified 907 such records from
the Bush records and 61 from the Cheney records.
NARA maintained that the narrowed records Cook sought
were exempt from disclosure under Exemption 6, while retaining
the right to assert that other FOIA exemptions apply to certain
content within the records. The parties thereafter stipulated that
"NARA first will file a motion for summary judgment asserting
whatever exemptions NARA contends may properly be asserted on
a categorical basis, meaning legal reasons that NARA asserts apply
equally to all documents at issue in this action, and to the entirety of
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COOK V. NAT'L ARCHIVES & RECORDS ADMIN.
each such document." Id. at 51. They further agreed that if the
motion did not resolve the suit in its entirety, NARA would then "be
entitled to assert whatever exemptions it contends apply on a non-
categorical basis in a second, subsequent motion." Id.
NARA moved for summary judgment asserting Exemption 6
categorically. The district court determined that the records Cook
seeks are "similar files" for purposes of Exemption 6 because they
reveal detailed information about the former officials -- the identity
of the official who sought information from NARA and what
information was sought. Cook v. Nat'l Archives & Records Admin., 921
F. Supp. 2d 148, 155-56 (S.D.N.Y. 2013). The district court then
concluded that, given the former officials' privacy interest in their
research inquiries and the minimal public interest involved,
disclosure would amount to an unwarranted invasion of personal
privacy. Id. at 156-57. Consequently, the district court granted
summary judgment to NARA. Id. at 157-58.
This appeal followed.
DISCUSSION
We review de novo a district court's summary judgment
decision in a FOIA case. Wood v. F.B.I., 432 F.3d 78, 82 (2d Cir. 2005).
Congress enacted FOIA "to pierce the veil of administrative
secrecy and to open agency action to the light of public scrutiny."
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U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (quoting Dep't of
Air Force v. Rose, 425 U.S. 352, 361 (1976)). Thus, FOIA mandates the
public disclosure of records of federal agencies upon request, unless
one of nine statutory exemptions applies. 5 U.S.C. § 552(a), (b)(1)-
(9); Wood, 432 F.3d at 82-83. Because FOIA manifests a "strong
presumption in favor of disclosure," Ray, 502 U.S. at 173, we
construe FOIA exemptions narrowly, resolving doubts in favor of
disclosure and imposing on the government the burden of showing
that an asserted exemption indeed applies. Wood, 432 F.3d at 83;
Perlman v. U.S. Dep't of Justice, 312 F.3d 100, 105 (2d Cir. 2002),
vacated, 541 U.S. 970 (2004), reaffirmed, 380 F.3d 110 (2d Cir. 2004).
On appeal, Cook argues that NARA's assertion of Exemption
6 is not well-founded and, alternatively, that NARA should be
compelled to segregate any portions of the records that may fall
under Exemption 6. We address the applicability of Exemption 6
and the segregability of the records in turn.
I. Exemption 6
FOIA's Exemption 6 permits the withholding of "personnel
and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6). We employ a two-prong inquiry in deciding
whether the government has correctly withheld records under
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Exemption 6. First, we determine whether the records in question
are "personnel," "medical," or "similar" files. Associated Press v. U.S.
Dep't of Def., 554 F.3d 274, 291 (2d Cir. 2009); Wood, 432 F.3d at 86.
Second, if so, we then "balance the public need for the information
against the individual's privacy interest in order to assess whether
disclosure would constitute a clearly unwarranted invasion of
personal privacy." Associated Press, 554 F.3d at 291.
A. "Personnel and Medical Files and Similar Files"
NARA maintains that the records of the former officials'
requests for archived materials are "similar files." We agree.
The phrase "similar files" sweeps broadly and has been
interpreted by the Supreme Court to mean "detailed Government
records on an individual which can be identified as applying to that
individual." U.S. Dep't of State v. Washington Post Co., 456 U.S. 595,
602 (1982) (internal quotation marks omitted); see also Ray, 502 U.S.
at 173; Associated Press, 554 F.3d at 291; Perlman, 312 F.3d at 106. The
Supreme Court noted that it would be anomalous for information
about a person to be protected by Exemption 6 because it was found
in a "medical" or "personnel" file, but lose protection if it happened
to be found in another file. See Washington Post, 456 U.S. at 601
("[T]he protection of an individual's right of privacy[,] which
Congress sought to achieve by preventing the disclosure of
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[information] which might harm the individual, surely was not
intended to turn upon the label of the file which contains the
damaging information." (internal quotation marks and citation
omitted) (first and third alterations in original)).
The Court in Washington Post also specifically rejected the
notion that only files containing "intimate details" and "highly
personal" information could qualify as "similar files." Id. at 600. As
the Court pointed out, "'personnel and medical files,' the two
benchmarks for measuring the term 'similar files,' are likely to
contain much information about a particular individual that is not
intimate," such as place and date of birth, date of marriage, and
employment status. Id.
The case law also makes clear that to qualify as a "similar file"
under Exemption 6, a record need not be like a personnel file in the
sense that it is employment-related or a medical file in the sense that
it contains a record of a person's medical history or medical
treatment and care. Indeed, the record need not even be a "file."
Hence, the following types of records have been deemed to be
"similar files" for purposes of Exemption 6: Passport Office records
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revealing citizenship status;3 an investigation report revealing
alleged misconduct;4 letters to Guantanamo Bay detainees revealing
the names and addresses of family members;5 and records of
interviews of deported aliens revealing their identities.6
Accordingly, a record is a "similar file" if it contains personal
information identifiable to a particular person. Washington Post, 456
U.S. at 599-602; Associated Press, 554 F.3d at 291.7 As the Court noted
in Washington Post, "Congress' primary purpose in enacting
Exemption 6 was to protect individuals from the injury and
embarrassment that can result from the unnecessary disclosure of
personal information." Id. at 599.
We conclude that the records Cook seeks are "similar files," as
they contain detailed records containing personal information
identifiable to the former officials and their representatives. Cook
3 Washington Post, 456 U.S. at 602.
4 Perlman, 312 F.3d at 106.
5 Associated Press, 554 F.3d at 291.
6 Ray, 502 U.S. at 173.
7To be sure, this interpretation of "similar files" does not mean that the phrase
has no limits, as "[i]nformation unrelated to any particular person presumably
would not satisfy the threshold [similar files] test." Washington Post, 456 U.S. at
602 n.4.
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seeks records that show what specific archived materials were
sought by former President Bush and former Vice-President Cheney
and their representatives. The approximately one thousand records
identified by NARA "reveal the identity of the specific requestor,"
J.A. at 113 ¶ 16, and include "correspondence between NARA staff
and researchers containing information about the research topic(s),
field(s) of interest, identification of requested records, and other
information furnished by the researcher," id. at 22. Because they
reveal what archived materials were sought from NARA, who
sought those materials, and the general research topics and fields of
interest of particular requestors, the records Cook seeks contain
information about specific persons that can be identified as applying
to those persons and are therefore "similar files."
Cook insists that, by taking advantage of the PRA's grant of
early access to publicly unavailable records, the former officials have
"voluntarily engage[d] with the government to receive some benefit
or privilege" and are thus less entitled to the protection of
Exemption 6. Appellant's Br. at 17. For this proposition, Cook cites
News-Press v. U.S. Dep't of Homeland Sec., 489 F.3d 1173 (11th Cir.
2007), and Elec. Frontier Found. v. Office Dir. of Nat'l Intelligence, 639
F.3d 876 (9th Cir. 2010). To the extent that the former officials and
their representatives may have voluntarily engaged with the
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government to receive benefits or privileges, that fact only enters
into the Exemption 6 calculus when deciding how to balance their
privacy interest against the public interest in disclosure; it is not
relevant to the threshold question of whether the records are
"similar files." See News-Press, 489 F.3d at 1202; Elec. Frontier, 639
F.3d at 886-87.
B. "Clearly Unwarranted Invasion of Privacy"
We now consider whether disclosure of the records would
amount to an unwarranted invasion of privacy, the "crux" of the
Exemption 6 inquiry. News-Press, 489 F.3d at 1197. In doing so, we
weigh the privacy interests of the former officials in the records
against the public interest in "opening agency action to the light of
public scrutiny." Associated Press, 554 F.3d at 291.
1. Privacy Interest
"'The balancing analysis for FOIA Exemption 6 requires that
we first determine whether disclosure of the files would
compromise a substantial, as opposed to de minimis, privacy interest,
because if no significant privacy interest is implicated FOIA
demands disclosure.'" Long v. Office of Pers. Mgmt., 692 F.3d 185, 191
(2d Cir. 2012) (quoting Multi Ag Media LLC v. Dep't of Agric., 515 F.3d
1224, 1229 (D.C. Cir. 2008)); accord Associated Press, 554 F.3d at 286;
Fed. Labor Relations Auth. v. U.S. Dep't of Veterans Affairs, 958 F.2d
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503, 510 (2d Cir. 1992). Furthermore, the Supreme Court teaches that
"both the common law and the literal understandings of privacy
encompass the individual's control of information concerning his or
her person." U.S. Dep't of Justice v. Reporters Comm. For Freedom of the
Press, 489 U.S. 749, 763 (1989); see also id. at 765 (recognizing privacy
interest in FBI "rap sheet").8 Thus, "regardless of the nature of the
information contained in them, disclosure of records containing
personal details about private citizens can infringe significant
privacy interests." Veterans Affairs, 958 F.2d at 510 (internal
quotation marks omitted).
We are persuaded that the former officials have more than a
de minimis privacy interest in the nondisclosure of their requests for
archived materials. Information about what archived materials the
former officials requested from NARA would reveal personal details
-- what they were thinking, considering, and planning as they
8Reporters Committee interpreted Exemption 7, which permits the withholding of
records gathered for law enforcement purposes where disclosure "could
reasonably be expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(7). Although Exemption 7 affords a greater degree of
privacy protection than Exemption 6,"the sort of privacy interest that must first
be shown before protection is afforded" is the same for both exemptions. Fed.
Labor Relations Auth. v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 509 (2d Cir.
1992). Reporters Committee's discussion of privacy therefore informs the analysis
under Exemption 6 as well. See id. at 510.
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transitioned back to private life after their years of service to the
country. The implicated privacy interests are compelling. The
former officials have a significant interest in developing their ideas
privately, free from unwanted public scrutiny. There are compelling
reasons to include within the privacy protection established by
Exemption 6 the subjects of a person's research and intellectual
inquiry, lest such activity be chilled. See United States v. Rumely, 345
U.S. 41, 57 (1953) ("When the light of publicity may reach any
student, any teacher, inquiry will be discouraged.") (Douglas, J.,
concurring).
In addition, the confidential nature of research requests is
well-recognized. All fifty states and the District of Columbia protect
the confidentiality of the records of a person's use of public library
materials.9 Similarly, the "Code of Ethics for Archivists" approved
by the Society of American Archivists commands archivists to
"respect all users' rights to privacy by maintaining the
confidentiality of their research and protecting any personal
9See, e.g., Cal. Gov't Code § 6267 (West 2008 & Supp. 2013) (California); Conn.
Gen. Stat. § 11-25 (2001) (Connecticut); D.C. Code § 39-108 (2002) (District of
Columbia); Fla. Stat. § 257.261 (2002) (Florida); N.H. Rev. Stat. Ann. § 91-A:5
(2002) (New Hampshire); N.J. Stat. Ann. § 18A:73-43.2 (West 2002) (New Jersey);
N.Y. C.P.L.R. § 4509 (McKinney 2002) (New York); 24 Pa. Cons. Stat. § 9375
(2002) (Pennsylvania); Vt. Stat. Ann. tit. 1, § 317(c)(19) (2001) (Vermont).
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information collected about the users."10 Likewise, the "Code of
Ethics" of the American Library Association recognizes "each library
user's right to privacy and confidentiality with respect to
information sought or received and resources consulted, borrowed,
acquired or transmitted."11
Cook argues that the privacy interests of the former officials
are entitled to only diminished protection because they are "quasi-
governmental actors" who continue to receive governmental salaries
and secret service protection and are granted special access to the
records before they become publicly available. We are not
persuaded. An individual does not lose her right to privacy merely
because she once served the government in an official capacity or
because she receives benefits from the government, such as secret
service protection (in recognition of the continued danger to her
personal safety incurred as a result of her former government
service). Moreover, the balance struck by the PRA and its interplay
with FOIA would be undermined if we were to hold that the former
officials were not entitled to the full protection of Exemption 6 on
10http://www2.archivists.org/statements/saa-core-values-statement-and-code-of-
ethics#code_of_ethics, (last visited July 1, 2014).
11http://www.ala.org/advocacy/proethics/codeofethics/codeethics, (last visited
July 1, 2014).
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the theory that they enjoyed only a "diminished" privacy interest.
We must keep the historical context in mind: before the passage of
the PRA, the President's papers were his property after he left office,
and he was free to consult his papers at will, completely privately.
The PRA gives no indication that Congress intended to alter the
President's historically unfettered access to his papers by, for
example, making his requests to access them subject to public
disclosure. Indeed, the President and his designated representatives
are the only persons afforded unrestricted access to these records
under the PRA. See 44 U.S.C. § 2205(3).
2. Public Interest
The public does have an interest, of course, in accessing
government documents "to pierce the veil of administrative secrecy"
and to open agency action to "public scrutiny." Rose, 425 U.S. at 361.
Hence, we must consider "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 Def. v. Fed. Labor Relations Auth., 510
U.S. 487, 495 (1994) (emphasis and alteration in original) (quoting
Reporters Committee, 489 U.S. at 775). Indeed, "[g]oals other than
opening agency action to public scrutiny are deemed unfit to be
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accommodated under FOIA when they clash with privacy rights."
Veterans Affairs, 958 F.2d at 510-11.
The public interests asserted by Cook do not justify the
substantial intrusion into the former officials' privacy. First, Cook
insists that
[d]isclosure of the special access requests --
including the identities of the requesters and the
description of the records sought -- would enable
the public to assess the relationship between
powerful, quasi-governmental Former Officials
and an independent agency that may not have
aligning interests. In this way, seeing how NARA
responds to special access requests provides the
public with insight into "what their government
is up to."
Appellant's Br. at 37 (quoting Reporters Committee, 489 U.S. at 773).
We are unpersuaded. While information as to how NARA responds
to special access requests submitted by the former officials may shed
some light on the internal functioning of the agency, knowledge of
what specific information was sought and by whom sheds little light
on how NARA is carrying out its obligations.
Second, Cook argues that "disclosure will show the extent to
which the special access given to former officials . . . is actually being
used to facilitate the preparation of memoirs as Congress intended,
or for other purposes (e.g., the continued waging of political
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battles)." Appellant's Reply Br. at 14. Although the PRA's legislative
history does indeed suggest that early access was granted to former
officials to facilitate the writing of memoirs, Cook cites nothing in
the statute limiting how the former officials may use the records
they receive from NARA. Indeed, the statute expressly gives the
former officials unrestrained access to their presidential and vice-
presidential records. 44 U.S.C. § 2205(3) ("[T]he Presidential records
of a former President shall be available to such former President or
his designated representative."). It is therefore not NARA's duty to
police how the former officials use the presidential records they
receive. In light of this, disclosure of the former officials' requests
for records would do little to advance the public understanding of
how NARA is carrying out its duties.
In sum, we conclude that the former officials' compelling
privacy interests outweigh any public interest in disclosure.
II. Segregability of the Records
We also reject Cook's alternative argument that NARA should
be compelled to redact the specific portions of the records that fall
under Exemption 6.
In light of the stipulations entered into by NARA and Cook,
and Cook's failure in opposing summary judgment to argue
segregability, that issue is not properly before us. The parties agreed
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to litigate only exemptions that apply on a categorical basis to "all
documents at issue in this action, and to the entirety of each such
document." J.A. at 51 ¶ 1. Thus, the only issue before the district
court was whether Exemption 6 applied to all the records Cook
sought. NARA expressly reserved the right to litigate exemptions
that apply to some of the records on a non-categorical basis, if its
motion did not "result in a final judgment for NARA dismissing the
complaint in its entirety." Id. at 51 ¶ 2. NARA's motion did result in
the dismissal of the entire complaint, however, and the district court
did not address the issue of segregability as Cook did not raise the
issue. In light of these circumstances, there is no reason for us to
reach the question now.
In any event, segregation would produce little of value here.
FOIA expressly authorizes the redaction of records to prevent an
invasion of privacy, given that "the policy of informing the public
about the operation of its Government can be adequately served in
some cases without unnecessarily compromising individual
interests in privacy." Ray, 502 U.S. at 174. "[A] court may [however]
decline to order an agency to 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
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COOK V. NAT'L ARCHIVES & RECORDS ADMIN.
content." Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242,
261 n.55 (D.C. Cir. 1977).
If we were to order NARA to redact the offending information
-- descriptions of which officials (or their representatives) sought
records, what records they sought, and any NARA response that
might reveal such information -- very little would be left of the
records of the special access requests. Compelling NARA to
undertake the review and redaction of almost one thousand records
to produce little of value would be a waste of time and resources.
We decline to compel NARA to engage in this exercise.
CONCLUSION
The judgment of the district court is AFFIRMED.
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