Kowack v. United States Forest Service

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK KOWACK, No. 12-35864
Plaintiff-Appellant,
D.C. No.
v. 9:11-cv-00095-
DWM
UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, Chief of the
United States Forest Service, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
April 10, 2014—Seattle, Washington
Filed September 9, 2014
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson
and Carlos T. Bea, Circuit Judges.
Opinion by Chief Judge Kozinski
2 KOWACK V. USFS
SUMMARY*
Freedom of Information Act
The panel reversed in part the district court’s summary
judgment entered in favor of the United States Forest Service
in an action challenging the Forest Service’s response to a
Freedom of Information Act request.
Mark Kowack, a teacher in the Forest Service’s Job Corps
Program, filed a Freedom of Information Act (“FOIA”)
request to obtain records pertaining to a misconduct
investigation. The Forest Service responded that it had
located responsive pages, but withheld a number of pages
under certain FOIA Exemptions. After an administrative
appeal, the agency disclosed 188 pages of documents, many
of which were heavily redacted. The district court ordered the
Forest Service to create a Vaughn index describing each
document and explaining why each document was exempt
from disclosure.
Concerning Kowack’s challenge to redactions to twenty-
two pages of witness statements made to an investigator by
employees other than himself, the panel held that it did not
have enough information to assess whether the Forest Service
properly redacted the documents pursuant to FOIA
Exemption 6, the personal privacy exemption. Concerning
Kowack’s challenge to redactions made to seventeen pages of
administrative documents and reports created by the agency
investigator and redacted under FOIA Exemption 6 and FOIA
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KOWACK V. USFS 3
Exemption 5 (which protects certain intra-agency records),
the panel held that Exemption 6 did not justify non-disclosure
of the documents and there was insufficient information to
determine whether Exemption 5 applied. Concerning
Kowack’s challenge to the redaction of grievance-related
documents created by the National Federation of Employees
and complaints made by employees other than Kowack, the
panel held that the documents were properly withheld under
FOIA Exemption 6.
The panel remanded to the district court to order the
government to produce a more detailed Vaughn index with
regard to the first two categories of documents, and, if that
was insufficient, to conduct an in camera review. The panel
directed the district court to disclose the documents if the
government failed to meet its burden. The panel held that the
remaining redactions were proper.
COUNSEL
Stacey Weldele-Wade (argued), Antonioli and Wade, P.C.,
Missoula, Montana, for Plaintiff-Appellant.
Michael W. Cotter, United States Attorney, George F.
Darragh, Jr. (argued), Assistant United States Attorney, Great
Falls, Montana, Karen Carrington, Office of General Counsel,
U.S. Department of Agriculture, Charles Spricknall, Office of
General Counsel, U.S. Department of Agriculture,
Washington, D.C., for Defendant-Appellee.
4 KOWACK V. USFS
OPINION
KOZINSKI, Chief Judge:
Democracy functions ill in shadow, yet government
bureaucracies are notoriously reluctant to reveal their internal
processes. Recognizing this tension, Congress passed the
Freedom of Information Act (“FOIA”) in 1966. FOIA fosters
transparency by adopting a baseline presumption that
information in the hands of the government belongs to the
people and must be disclosed on request. But some secrecy
is necessary, so FOIA includes several narrow exemptions.
We consider how much the government must explain to show
that an exemption blocks the release of requested
information.
I. Background
Mark Kowack teaches disadvantaged youth at the Trapper
Creek Center in Darby, Montana as part of the Forest Service
Job Corps Program. Kowack claims that in 2008 he “began
experiencing threats, aggression, and workplace hostility
from certain of his co-workers.” He says he feared for the
safety of himself and his students.
After Kowack filed a complaint and sought help from one
of his senators, the Director of the Jobs Corps National
Center launched an investigation into “allegations of work
place violence, threatening remarks and a negative work
place culture” at the Trapper Creek Center. The investigator
interviewed and obtained statements from all four employees
in the center’s education department including Kowack, the
center’s director and two other individuals; the investigator
also gathered grievance records, disciplinary letters and
KOWACK V. USFS 5
informal complaints. These documents were compiled into
a report that was presented to the Forest Service’s
Misconduct Investigations Program Manager and the
National Director of the Jobs Corps Program, among others.
Ultimately, the Forest Service declined to take any action and
closed the investigation. It notified Kowack of its decision,
but gave him almost no explanation for it.
Dissatisfied, Kowack filed a FOIA request to obtain
copies of the investigative report and “all statements,
interviews, photos, notes and any other documents that
pertain to the ‘misconduct investigation.’” The Forest
Service responded that it had located 173 responsive pages,
80 of which it withheld under the personal privacy
exemption. See 5 U.S.C. 552(b)(6).
Kowack filed an administrative appeal, which resulted in
the disclosure of 188 pages of documents, many of which
were heavily redacted. The redacted documents fall into five
categories: (1) statements made to the investigator by
employees other than Kowack; (2) administrative documents
and reports created by the investigator; (3) grievance-related
documents created by the National Federation of Federal
Employees; (4) disciplinary letters issued to employees other
than Kowack; and (5) a complaint made by an employee
other than Kowack to the Trapper Creek Jobs Corps Center
Director.
Kowack sued, challenging the redactions and moved for
in camera inspection of the documents. Instead, the district
court ordered the Forest Service to create a Vaughn index
describing each document and explaining why each document
was exempt from disclosure. As its Vaughn index, the Forest
Service submitted a declaration from Sherry Turner, the
6 KOWACK V. USFS
Assistant Director of the Forest Service’s FOIA and Privacy
Office. The district court granted the Forest Service’s motion
for summary judgment. Kowack appeals.
II. Discussion
We employ a two-step standard of review when
considering a district court’s grant of summary judgment in
a FOIA case. Yonemoto v. Dep’t of Veterans Affairs,
686 F.3d 681, 688 (9th Cir. 2012). First, we review de novo
whether “an adequate factual basis exists to support the
district court’s decisions.” Lane v. Dep’t of Interior,
523 F.3d 1128, 1135 (9th Cir. 2008). In making this
determination, we may rely solely on government affidavits
“so long as the affiants are knowledgeable about the
information sought and the affidavits are detailed enough to
allow the court to make an independent assessment of the
government’s claim.” Lion Raisins, Inc. v. U.S. Dep’t of
Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004). If the
affidavits are inadequate, we may return the case to the
district court for the production of a more detailed Vaughn
index and, if necessary, a “first-hand determination of
[documents’] exempt status.” Church of Scientology of Calif.
v. U.S. Dep’t of Army, 611 F.2d 738, 742 (9th Cir. 1979).
But, if the affidavits are adequate, we review the district
court’s “conclusions of fact . . . for clear error, while legal
rulings, including [the district court’s] decision that a
particular exemption applies, are reviewed de novo.” Lane,
523 F.3d at 1135. The government, of course, has the burden
of proof. U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 755 (1989).
KOWACK V. USFS 7
A. Witness Statements
Kowack challenges the redactions to twenty-two pages of
witness statements made to the investigator by employees
other than himself. The government redacted the documents
pursuant to Exemption 6, the personal privacy exemption.
Exemption 6 protects information about individuals when
contained in “personnel and medical” or other “similar files,”
if disclosure would “constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6).
Kowack argues that the government hasn’t proven that the
witness statements are “similar files” because they don’t
contain “information similar to that found in a standard
personnel file.” Church of Scientology, 611 F.2d at 746. But
we’ve defined “similar files” broadly to include “records
containing information that applies to particular individuals.”
Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1024 (9th Cir. 2008). Thus, files containing
citizenship information on specific individuals; reports of
interviews with Haitian nationals involuntarily returned to
Haiti; and a report analyzing an agency’s response to a
wildfire have all been found to be “similar files.” See
Prudential Locations, LLC v. U.S. Dep’t of Housing & Urban
Devel., 739 F.3d 424, 429 (9th Cir. 2013). Because a
witness’s statement about misconduct he has observed in the
workplace “contain[s] information that applies to particular
individuals,” such statements qualify as “similar files.” See
Forest Serv. Emps., 524 F.3d at 1024.
Nonetheless, the district court erred in finding that the
Turner declaration provides an adequate factual basis for
concluding that disclosure of the witness statements would
“constitute a clearly unwarranted invasion of personal
8 KOWACK V. USFS
privacy.” 5 U.S.C. § 552(b)(6). For, even personal
information must be disclosed unless doing so is “clearly
unwarranted,” and this is true only when the individual’s
privacy interest outweighs the public interest. See Yonemoto,
686 F.3d at 694. The only public interest we consider is “the
extent to which disclosure of the information sought would
‘she[d] light on an agency’s performance of its statutory
duties’ or otherwise let citizens know ‘what their government
is up to.’” U.S. Dep’t of Defense v. Fed. Labor Relations
Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm.
for Freedom of the Press, 489 U.S. at 773) (alteration in
original).
Because the district court didn’t conduct an in camera
review, we have only Turner’s description of the withheld
documents, as contained in her Vaughn index declaration, but
this description is too vague to allow us to weigh either the
privacy or the public interests at stake. Turner states that the
witness statements contain “allegations of workplace
violence, threatening remarks, and a negative workplace
culture,” and that the Forest Service redacted “names, job
titles, and other personal identifiers of [the witnesses] and
their detailed accounts and allegations because disclosing
such information would lead to their identification.”
We’ve recognized that a privacy interest exists in
avoiding embarrassment, stigma and harassment, see Forest
Serv. Emps., 524 F.3d at 1026, and the knowledge that a
specific employee was associated with the investigation could
implicate the employee’s privacy interest. But that doesn’t
help the government in this case because we already know the
identities of most of the people interviewed—all employees
of the Education Department, the center director and two
other individuals. At least the department employees and the
KOWACK V. USFS 9
center director, then, have no privacy interests in preventing
the public from knowing about their involvement with the
investigation.
The witnesses may have a privacy interest in ensuring that
their names aren’t associated with specific incidents reported
to the investigator. But the government hasn’t provided
enough information for us to make an independent
determination whether it’s necessary to withhold all details
about the events the witnesses described in order to protect
that interest. See Yonemoto, 686 F.3d at 694. The
government justifies its redactions only by noting that the
center is located in a small community and has a small staff:
Because of the limited universe of possible suspects, the
government argues, the public could easily identify who
made which allegation, and which employee is being
complained about. That’s fine in theory, but the government
hasn’t told us anything about the type of incidents reported.
It’s entirely possible that the substance of the witness
statements could be disclosed without revealing who made
them. The government asks us to take its word for it. FOIA
requires more.
Nor do we have enough information to assess the public
interest. The district court found that any public interest in
the witness statements is “marginal” because they “shed light
only on interpersonal and interoffice conflict.” But the
Turner declaration discloses that the misconduct investigation
“focused on allegations of workplace violence, threatening
remarks, and negative workplace culture.” For all we know,
the witness statements reveal that the Trapper Creek Center
is run by dangerous bullies who shouldn’t be allowed
anywhere near disadvantaged youth. That kind of
information would certainly “let citizens know ‘what their
10 KOWACK V. USFS
government is up to.’” Fed. Labor Relations Auth., 510 U.S.
at 497 (quoting Reporters Comm. for Freedom of the Press,
489 U.S. at 773). Without a more detailed description from
the government, the only way we can determine the public
interest is by looking at the documents ourselves.
B. Administrative Documents and Reports Created
by the Investigator
Kowack also challenges the redactions made to seventeen
pages of administrative documents and reports created by the
investigator. These redactions were made pursuant to
Exemption 5, which protects “intra-agency memorandums or
letters which 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), and Exemption 6, the personal privacy
exemption. According to the Turner declaration, the
documents “were created by the HRM Investigator and
included the identity of all employees interviewed, case
background, a list of issues/allegations, an index of
documents contained in the investigative file, transmittal
documents, and investigative summaries, findings and
recommendations.” The government redacted, among other
information, “names, identifiable portions of individual
statements, cellular telephone numbers, and any references to
disciplinary letters issued to employees other than Kowack.”
Kowack doesn’t argue that the redaction of the telephone
number and names was improper, but he does challenge the
withholding of the other information.
1. Personal Privacy Exemption
The government justifies its invocation of the personal
privacy exemption only by stating that “[t]he Forest Service
KOWACK V. USFS 11
applied the same balancing test as described above [with
regard to the witness statements].” There isn’t a sufficient
factual basis supporting the application of the personal
privacy exemption to the documents created by the
Investigator for the same reasons that there isn’t a sufficient
factual basis supporting the application of the exemption to
the witness statements. See pp. 7–10 supra. Therefore, the
personal privacy exemption doesn’t justify the non-disclosure
of these documents.
2. Intra-Agency Communication Exemption
Nor is the Turner declaration sufficient for us to conclude
that Exemption 5, the intra-agency communication
exemption, applies. Exemption 5 allows the government to
withhold documents that fall within a recognized litigation
privilege. Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). The Forest Service
invokes the deliberative process privilege, which covers
“documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Carter
v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir.
2002) (quoting Klamath, 532 U.S. at 8). That privilege
shields from disclosure documents that are both
“predecisional” and part of the agency’s “deliberative
process,” and applies only if “disclosure of [the] materials
would expose an agency’s decisionmaking process in such a
way as to discourage candid discussion within the agency and
thereby undermine the agency’s ability to perform its
functions.” Maricopa Audubon Soc’y v. U.S. Forest Serv.,
108 F.3d 1089, 1093 (9th Cir. 1997) (quoting Assembly of the
State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920
(9th Cir. 1992)).
12 KOWACK V. USFS
Turner states that the documents are predecisional
because the “assessments were developed by a subordinate
employee to inform and assist the decision-maker” and “the
Forest Service had made no final decision with respect to any
of the allegations at issue.” Because the documents were
“prepared in order to assist an agency decisionmaker in
arriving at his decision,” the Turner declaration adequately
shows that the documents are predecisional. Id. (internal
citation omitted).
But the Turner declaration doesn’t adequately show how
the disclosure of any portion of the redacted documents
would “expose ‘the [agency’s] decision-making process
itself’ to public scrutiny.” Nat’l Wildlife Fed’n v. U.S. Forest
Serv., 861 F.2d 1114, 1118 (9th Cir. 1988) (quoting Montrose
Chemical Corp. of Calif. v. Train, 491 F.2d 63, 68 (D.C. Cir.
1974)). Turner makes clear that at least some of the redacted
information includes “the factual reasons why the investigator
concluded that the allegations of workplace violence and
employees making threatening remarks to one another were
unsubstantiated.” While facts aren’t automatically subject to
disclosure, “factual material that does not reveal the
deliberative process is not protected.” Id. at 1117 (internal
quotations and alterations omitted) (quoting Paisley v. CIA,
712 F.2d 686, 698 (D.C. Cir. 1983)). Turner doesn’t even say
whether the government tried to segregate the factual
information, let alone provide enough detail for us to
conclude that the factual portions of the documents are “so
interwoven with the deliberative material that [they are] not
[segregable].” United States v. Fernandez, 231 F.3d 1240,
1247 (9th Cir. 2000). A stand-alone fact section, for
example, could likely be disclosed without revealing the
agency’s deliberative process, while isolated facts embedded
within a subordinate’s explanation of why the allegations
KOWACK V. USFS 13
were meritless may not be. Without more information, we
can’t make the “independent assessment” that FOIA
demands. Lion Raisins, Inc., 354 F.3d at 1079.
C. Other Categories of Documents
Kowack also challenges the redaction of grievance-related
documents created by the National Federation of Employees
and complaints made by employees other than Kowack to the
center director pursuant to the personal privacy exemption.1
The grievance documents were redacted to withhold “[a]ny
information that would identify individual employees other
than KOWACK including names, and dates and details of
specific incidents.” The informal complaint was redacted to
“remove the name and other identifying information of the
complainant and the content of the complaint and response.”
Because the public interest in disclosure of these
documents is minimal, the documents were properly
withheld. Courts have recognized that, where there is no
public interest, “we need not linger over the balance” between
the public and private interests implicated by a particular
document because “something, even a modest privacy
interest, outweighs nothing every time.” Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir.
1989). The Turner declaration sufficiently demonstrates that
there is likely no public interest in these documents.
1
Although the government also redacted a fifth category of
documents—disciplinary letters issued to employees other than
Kowack—Kowack’s opening brief doesn’t contain any specific argument
about these documents. Any challenge to the redaction of those
documents is therefore waived. See Retlaw Broad. Co. v. NLRB, 53 F.3d
1002, 1005 n.1 (9th Cir. 1995).
14 KOWACK V. USFS
The grievance-related documents, which include “a notice
of intent to file an unfair labor practice charge on behalf of an
individual employee other than KOWACK and a pre-
grievance settlement agreement,” concern “the denial of
Weingarten rights to an individual employee other than
Kowack.” Weingarten guarantees the right of employees to
have union representation at investigatory interviews.
NLRB v. Weingarten, Inc., 420 U.S. 251, 253 (1975). While
documents that would demonstrate a pattern of the denial of
Weingarten rights could “she[d] light on [the Forest
Service’s] performance of its statutory duties,” U.S. Dep’t of
Defense, 510 U.S. at 497, at most, the documents that
Kowack has requested would shed light on one employee’s
complaint, greatly limiting its ability to reveal anything
significant about the way the Forest Service generally
operates. See Hunt v. Federal Bureau of Investigation,
972 F.2d 286, 288–89 (9th Cir. 1992) (contrasting the public
interest in a request for a single disciplinary file with that in
a request for multiple files). The public interest in the
documents therefore could not possibly outweigh the
employee’s privacy interest, even if that interest is minimal.
The Turner declaration similarly demonstrates the lack of
public interest in the informal complaint to the center director
and the director’s response. Those documents “concern
unsubstantiated allegations and complaints made by one
employee and the response to the employee by the Center
Director.” Like the grievance documents, this category of
documents concerns only one complaint, and an
unsubstantiated one at that. The privacy interest in these
documents may be small—Turner doesn’t provide enough
detail for us to determine whether disclosure of any of the
information would allow for the identification of the
employee involved. But there is undoubtedly some privacy
KOWACK V. USFS 15
interest in the submission of non-formal complaints. See
Forest Serv. Emps., 524 F.3d at 1026. And even that limited
privacy interest is enough to outweigh whatever marginal
public interest may exist in disclosure.2 See id.* * *
We therefore remand for the district court to order the
government to produce a more detailed Vaughn index with
regard to the first two categories of documents, and, if that’s
not sufficient, to conduct an in camera review. If the
government can’t meet its burden, the district court must
order the documents disclosed.
The remaining redactions were proper.
REVERSED IN PART AND REMANDED. COSTS
TO APPELLANT.
2
For the first time on appeal, Kowack argues that the Forest Service’s
search for documents was inadequate. Because the argument is waived,
we decline to address it. See Greger v. Barnhart, 464 F.3d 968, 973 (9th
Cir. 2006).