Peter Janangelo v. Tigta

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER JANANGELO, No. 17-15838
Plaintiff-Appellant, D.C. No.
2:16-cv-00906-JCM-GWF
v.
TREASURY INSPECTOR GENERAL MEMORANDUM*
FOR TAX ADMINISTRATION, an agency
of the United States,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 11, 2018**
San Francisco, California
Before: SCHROEDER, GOULD, and DIAZ,*** Circuit Judges.
Peter Janangelo appeals the district court’s order granting summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Albert Diaz, United States Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
judgment to the Treasury Inspector General for Tax Administration (“TIGTA”)
and denying Janangelo’s cross-motion for summary judgment. We review the
district court’s order de novo, Animal Legal Def. Fund v. U.S. Food & Drug
Admin., 836 F.3d 987, 988 (9th Cir. 2016) (en banc), and we affirm.
TIGTA did not waive its ability to make a so-called Glomar response, which
neither confirmed nor denied the existence of the report that Janangelo’s Freedom
of Information Act (“FOIA”) request seeks. Our rule is clear that an agency may
not make a Glomar response when the existence of the requested information has
already been “officially acknowledged.” Pickard v. Dep’t of Justice, 653 F.3d 782,
786 (9th Cir. 2011). A fact has been “officially acknowledged” if information that
precisely matches the information requested was previously disclosed. Id.But here the existence or non-existence of the report Janangelo seeks has not
been “officially acknowledged.” Agent Moller’s email telling Janangelo that he
“will have to file a FOIA request for the information” does not amount to an
affirmative admission that the requested report exists. Nor does attorney Daphne
Levitas’s ambiguous declaration, which contradicts itself by stating that she could
not confirm or deny the report’s existence but also says that she was “familiar with
the document plaintiff seeks.” In context, however, Levitas said that she was
familiar only with the type of document Janangelo seeks. Because these
statements do not precisely match an admission that the requested report exists,
2
TIGTA was entitled to make a Glomar response to Janangelo’s FOIA request.
Further, TIGTA’s Glomar response is fully justified under FOIA Exemption
6. That provision exempts “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). Janangelo does not dispute that the report of
investigation he seeks would qualify as “personnel and medical files and similar
files.” Id. Instead, he contends that disclosure of the report’s existence vel non
would not “constitute a clearly unwarranted invasion of personal privacy.” Id.Evaluating this issue requires “a balancing of the public interest in disclosure
against the possible invasion of privacy caused by the disclosure.” Hunt v. FBI,
972 F.2d 286, 287 (9th Cir. 1992).
On balance, the requested disclosure would constitute a “clearly
unwarranted” invasion of Janangelo’s former boss’s personal privacy. Because the
alleged public interest is in showing “that responsible officials acted negligently or
otherwise improperly in the performance of their duties,” Janangelo “must
establish more than a bare suspicion in order to obtain disclosure.” Nat’l Archives
& Records Admin. v. Favish, 541 U.S. 157, 174 (2004). “Rather, [Janangelo] must
produce evidence that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.” Id. But Janangelo has
produced no such evidence, and instead we have mere allegations and conjecture.
3
On the other hand, Janangelo’s lewd claims implicate “[s]ignificant privacy
interests,” Hunt, 972 F.2d at 290, because “association of [Janangelo’s former
boss’s] name with allegations of sexual and professional misconduct could cause
[her] great personal and professional embarrassment,” id. at 288. And we “place[]
emphasis on the employee’s position in her employer’s hierarchical structure,”
giving greater weight to the privacy interests of “lower level officials” like
Janangelo’s former boss. Forest Serv. Employees for Envtl. Ethics v. U.S. Forest
Serv., 524 F.3d 1021, 1025 (9th Cir. 2008).
We agree with the district court that Janangelo’s FOIA request falls within
Exemption 6, and so we need not consider whether it is also covered by Exemption
7(C).1
AFFIRMED.
1
Because TIGTA’s Glomar response was proper, the agency was not required to
produce a Vaughn index to describe the documents in its possession. See Minier v.
CIA, 88 F.3d 796, 804 (9th Cir. 1996).
4