['Judicial Watch, Inc. v. Department of the Navy']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 12-cv-172 (KBJ)
)
DEPARTMENT OF THE NAVY, )
)
Defendant. )
)
MEMORANDUM OPINION
Defendant Department of the Navy (“Defendant” or “Navy”) entered into a
contract for renewable energy with a company called SunPower Corporation
(“SunPower”) in the fall of 2011. Presently before the Court are cross-motions for
summary judgment stemming from a request that Plaintiff Judicial Watch, Inc.
(“Plaintiff”) submitted to the Navy under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, seeking documents relating to that contract. Since the filing of the
complaint on February 1, 2012, the parties have worked diligently to narrow the scope
of their dispute, and have succeeded such that there is now only one narrow issue for
this Court to decide: whether Defendant properly redacted the names of the individual
agency employees who signed an internal memorandum endorsing the contract.
Because the Court finds that it lacks sufficient information to determine whether these
names are exempt from disclosure under Exemption 6 of FOIA, Defendant’s motion for
summary judgment is DENIED without prejudice, and Plaintiff’s cross-motion for
summary judgment is DENIED without prejudice as well. Both parties will have an
1
opportunity to file motions consistent with the analysis provided below. A separate
order consistent with this Opinion will issue.
I. BACKGROUND
On September 30, 2011, the Navy entered into contracts for renewable energy
with five companies, including SunPower. (Def.’s Statement of Material Facts Not in
Genuine Dispute (“Def.’s Facts”), ECF No. 18, ¶ 1.) The SunPower contract provided
that the Navy would “purchase a minimum amount of renewable generated electricity,
up to a maximum of 35,000,000 kwh, per year for 20 years from SunPower.” (Id. ¶ 18.)
Under the terms of the contract, the Navy is required to “pay SunPower for the
renewable generated electricity that it supplies, up to the maximum of 35,000,000 kwh
per year”; however, “[i]f SunPower cannot supply the renewable generated electricity it
will not be paid.” (Id.)
An unidentified Navy employee holding the title “Source Selection Authority”
(“SSA”) was ultimately responsible for the decision to enter into the contract with
SunPower. (Id. ¶¶ 14-16.) In making this decision, the SSA had assistance from a
Source Selection Board (“SSB”), which is a team of agency employees that is
responsible for “evaluat[ing] proposals[] submitted in response to a solicitation for
renewable generated electricity, and ma[king] recommendations to the SSA as to which
offerors should be awarded contracts.” (Id. ¶ 16.) 1 The SSA has the authority to
1
The members of an SSB “are employees of the agency and represent the appropriate contracting,
legal, logistics, technical, and other functional disciplines needed to evaluate proposals submitted in
response to an agency solicitation.” (Declaration of Russell P. Spindler (“Spindler Decl.”), ECF No.
18-5, ¶ 9.) As a general matter, the SSB’s goal is to “evaluate[] proposals against the evaluation
criteria listed in the solicitation and provide[] a recommendation to the SSA.” (Id.)
2
“accept, change, or reject [an] SSB’s recommendation.” (Id. ¶ 15.) In the case of the
particular contract at issue here, the SSA ultimately adopted the SSB’s recommendation
and entered into the renewable energy contract with SunPower. (Id. ¶ 16.)
On October 21, 2011, several weeks after the contract was signed, Plaintiff sent a
FOIA request to the Department of the Navy seeking information regarding the
contracting process. (Complaint (“Compl.), ECF No. 1, ¶ 5.) Specifically, Plaintiff’s
request included:
A. Any and all records regarding[,] concerning or related to the $100,268,000
firm-fixed-price task order awarded to SunPower, Inc. on September 30,
2011 (ref. Contract Number N62583-10-D-0030, Task Order 0002).
B. Any and all records of communication between any official, officer or
employee of the Department of the Navy and any official officer or
employee of any other government agency, department or office
regarding, concerning or related to the aforementioned task order.
C. Any and all records of communications between any official, officer or
employee of the Department of the Navy and any officer, employee or
representative of Lang, Hansen, O’Malley and Miller, a government
relations firm headquartered in Sacramento, CA.
(Id. ¶ 5; Def.’s Facts ¶ 1.) After sending this FOIA request, Plaintiff received a letter
of acknowledgement dated October 25, 2011, but the “letter did not state when Plaintiff
could expect to receive a substantive response[.]” (Compl. ¶ 6.) Between October 25,
2011, and November 2, 2011, Defendant twice redirected Plaintiff’s FOIA request,
eventually assigning it to the Naval Facilities Engineering Command (“NAVFAC”) in
Port Hueneme, CA. (Id. ¶¶ 7-9.) During this time, Plaintiff received three more
acknowledgment letters from Defendant, but none of these letters specified when
Plaintiff could expect a substantive response to its request. (Id.) Plaintiff therefore
filed the instant complaint in this Court on February 1, 2012, noting that “[o]ther than
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to acknowledge receipt of the request and inform Plaintiff that its request was being
processed, Defendant has failed to respond to the request in any manner.” (Compl. ¶
11)
After Plaintiff filed its complaint, Defendant produced two sets of documents
responsive to Plaintiff’s FOIA request. (See Joint Status Report, ECF No. 14, ¶ 3.)
First, on May 31, 2012, Defendant sent Plaintiff a letter enclosing 120 pages of
responsive documents. (Id.; Def.’s Facts ¶ 3.) Then, on July 2, 2012, Defendant
provided a second batch of documents. (Def.’s Facts ¶ 5; see also Joint Status Report
¶ 3.) Among these documents were certain pages from a document dated December 17,
2009, and called a Business Clearance Memorandum (“Memorandum”), which
“explained how NAVFAC evaluated 12 proposals that were submitted in response to a
solicitation that NAVFAC had issued for renewable electricity, why NAVFAC awarded
a multiple award contract to five of the 12 offerors, and why it also awarded task orders
to three of the five offerors.” (Def.’s Facts ¶ 5.) Defendant provided eighteen pages of
the Memorandum to Plaintiff, including a signature page “containing the names and
signatures of the four persons who prepared, reviewed, or approved” the Memorandum.
(Id. ¶ 6; see also Def.’s Mot. for Summ. J., Ex. C, ECF No. 18-4.) Defendant withheld
an additional 146 pages from the Memorandum on the grounds that these pages were
not responsive to Plaintiff’s FOIA request. (Def.’s Facts ¶ 11.)
On July 24, 2012, Plaintiff sent Defendant an email requesting, among other
things, that Defendant produce the remaining 146 pages of the Memorandum. (Id.
¶ 10.) After reviewing the email, on August 24, 2012, Defendant provided a third set of
documents comprised of six additional pages of the Memorandum, including “signatory
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pages for the members of the Source Selection Board (SSB).” (Id. ¶¶ 13-14.) The six
pages included two different signatory pages, which are “essentially duplicates, except
that [one page] does not contain any actual signatures (just the names of the SSB
members) while [the other page] contains three signatures and signing dates, as well as
the names of the SSB members[.]” (Id. ¶ 14.) Significantly, although Defendant
provided these signature pages, it redacted the names and signatures of the SSB
members that appeared on the pages. In a cover letter sent with the six additional
pages, Russell Spindler (“Spindler”), counsel to NAVFAC, asserted that the names were
redacted pursuant to FOIA Exemption 6. (Id. ¶ 19.) After Defendant had produced
these records, the parties stipulated that only the release of the names on the two sets
signature pages remained in dispute. (Stipulation, ECF No. 16, at 1.)
On November 30, 2012, Defendant filed the instant motion for summary
judgment, arguing that the names were exempt from disclosure under FOIA Exemption
6. As explained in more detail below, Spindler’s cover letter and Defendant’s summary
judgment motion and memorandum argued only that the names were exempt from
disclosure pursuant to Exemption 6, but Defendants also attached a declaration from
Spindler that stated that the names were also exempt from disclosure under FOIA
Exemption 5. Plaintiff filed an opposition and cross-motion for summary judgment on
December 21, 2012, arguing that neither Exemption 5 nor Exemption 6 authorized
redaction of the names. 2 Accordingly, the issue before this Court at present is whether
2
Plaintiff also indicated that it sought to challenge the name redactions only with respect to one of the
two sets of signature pages. (See Pl.’s Mem. of Law in Supp. of Cross-Mot. for Summ. J. (“Pl. Br.”),
ECF No. 21, at 3 (stating that “the only issue that remains in this case is Defendant’s withholding of
the information contained in the last two pages of the August 24, 2012, production, specifically, the
names of the individuals” who signed the Memorandum).)
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Defendant properly redacted the signatories’ names pursuant to an applicable FOIA
exemption. (Id.)
II. LEGAL STANDARDS
A. Summary Judgment in FOIA Cases
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders 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)). Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment must be granted when the pleadings, the discovery and disclosure materials on
file, and any affidavits “show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P. 56. In the FOIA
context, a district court reviewing a motion for summary judgment conducts a de novo
review of the record, and the responding federal agency bears the burden of proving
that it has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B); see also
In Defense of Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 83, 92-93 (D.D.C.
2008). The court must analyze all underlying facts and inferences in the light most
favorable to the FOIA requester. See Wills v. DOJ, 581 F. Supp. 2d 57, 65 (D.D.C.
2008). As such, summary judgment for an agency is only appropriate after the agency
proves that it has “fully discharged its [FOIA] obligations[.]” Moore v. Aspin, 916 F.
Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382
(8th Cir. 1985)).
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A court may award summary judgment based solely upon the information
provided in affidavits or declarations when the affidavits or declarations 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations “are accorded a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
B. FOIA Exemptions 5 And 6
FOIA “generally requires the disclosure, upon request, of records held by a
federal government agency[.]” Judicial Watch, Inc. v. U.S. Dep’t of the Treasury, 796
F. Supp. 2d 13, 18 (D.D.C., 2011). Specifically, FOIA provides in relevant part that:
[E]ach agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be followed, shall
make the records promptly available to any person.
5 U.S.C. § 552(a)(3)(A). FOIA “was enacted to facilitate public access to Government
documents[,]” U.S. Dep’t of State v. Ray, 502 U.S. 164, 174 (1991), in order to provide
“a means for citizens to know what their Government is up to.” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (internal quotation marks and
citations omitted). However, “[i]n enacting FOIA, the Congress sought to balance the
public’s interest in governmental transparency against legitimate governmental and
private interests [that] could be harmed by release of certain types of information.”
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United Tech. Corp. v. U.S. Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal
quotation marks and citations omitted). To that end, “Congress included nine
exemptions permitting agencies to withhold information from FOIA disclosure.”
Judicial Watch v. Treasury, 796 F. Supp. 2d at 23. At issue in this case are Exemption
5 (5 U.S.C. § 552(b)(5)) and Exemption 6 (5 U.S.C. § 552(b)(6)).
Exemption 5 protects “inter-agency or 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). “Congress intended to confine [Exemption 5] ‘as
narrowly as [is] consistent with efficient Government operation.’” Senate of the Com.
of Puerto Rico on Behalf of Judiciary Comm. v. DOJ, 823 F.2d 574, 584-85 (“Puerto
Rico”) (quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 868
(D.C. Cir. 1980)). Under Exemption 5, three privileges are protected: the work product
privilege, the attorney-client privilege, and the deliberative process privilege. Coastal
States Gas Corp., 617 F.2d at 862.
Exemption 6 protects “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). In determining whether an otherwise responsive
record qualifies for the protections of Exemption 6, a court must first determine that the
record fits into one of the relevant categories—i.e., “personnel,” “medical,” or “similar
files.” If a record so qualifies, the court then determines whether disclosure of that
document “would compromise a substantial, as opposed to a de minimis, privacy
interest.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir.
1989) (“NARFE”). And finally, if the defendant successfully identifies a substantial
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privacy interest, the court applies a balancing test that weighs the privacy interest in
withholding the record against the public’s interest in the record’s disclosure. Judicial
Watch v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 45 (D.D.C. 2012) (citing ACLU v.
DOJ, 655 F.3d 1, 12 (D.C. Cir. 2011)).
III. ANALYSIS
A. Defendant’s Belated Assertion That The Signatories’ Names Are
Properly Withheld Under Exemption 5
Defendant now maintains that the signatories’ names are exempt from disclosure
under both Exemption 5 and Exemption 6 of FOIA. But, as mentioned above,
Defendant’s contention that FOIA Exemption 5 applies has arisen in a somewhat
unorthodox manner. NAVFAC counsel Spindler originally indicated that the
signatories’ names had been redacted only pursuant to Exemption 6; moreover, in its
brief supporting its summary judgment motion, Defendant argues only that Exemption 6
authorizes withholding the names. (See Def.’s Mem. of Law in Supp. of Mot. for
Summ. J. (“Def. Br.”), ECF No. 18, at 4-10.) However, in the declaration from
Spindler that was submitted in conjunction with Defendant’s brief, Spindler states that
“while I did not state it in my letter of August 24, 2012, the names of the members of
the SSB are also exempt from release pursuant to [Exemption 5], the deliberative
process exemption, of FOIA as the SSB members provided predecisional
recommendations to the SSA.” (Declaration of Russell P. Spindler (“Spindler Decl.”),
ECF No. 18-5, ¶ 13.) Based on this assertion, Plaintiff took up the Exemption 5 issue
in its own brief supporting its cross-motion for summary judgment. (See Pl. Br. at 6-7.)
Defendant then responded to Plaintiff’s arguments regarding Exemption 5. (See Def.’s
Reply in Supp. of Mot. for Summ. J. (“Def. Reply”), ECF No. 24, at 2-4.) Thus, the
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Court is confronted with the odd situation in which a plaintiff has prophylactically
attacked a FOIA exemption that the defendant ignored when it moved for summary
judgment.
Because courts usually “requir[e] all FOIA exemptions to be raised at the same
time in the original district court FOIA proceedings,” Stonehill v. IRS, 558 F.3d 534,
536 (D.C. Cir. 2009), it is not clear that the Exemption 5 argument in this case is even
properly before the Court. Nevertheless, for the following reasons and out of an
abundance of caution, the Court will address it.
First, avoiding the Exemption 5 issue here would not further the primary purpose
of preventing a defendant from raising a FOIA exemption belatedly, which is to prevent
abuse and delay of the litigation process. See Maydak v. DOJ, 218 F.3d 760, 764 (D.C.
Cir. 2000). The prudential rule that requires the government to raise all of its
exemptions at once is generally designed to foreclose the government from fully
litigating one exemption, only to raise another if it loses. Stonehill, 558 F.3d at 538(D.C. Cir. 2009) (noting that this rule is aimed at “preventing the government from
playing cat and mouse by withholding its most powerful cannon until after the [d]istrict
[c]ourt has decided the case and then springing it on surprised opponents and the
judge”) (internal quotation marks and citations omitted). But that scenario is not the
case here, where the Exemption 5 arguments have been raised in the same time frame as
the arguments related to Exemption 6.
In addition, the Court’s consideration of the Exemption 5 issue will not prejudice
any party, since consideration of an additional ground of exemption favors Defendant,
and Plaintiff has already fully addressed this exemption in its briefing. Notably, the
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record is also sufficiently developed for the Court to render a decision on the
Exemption 5 question. Thus, the Court concludes that it is appropriate to address the
question of whether the redactions at issue in this case could have been made pursuant
to FOIA Exemption 5, as well as FOIA Exemption 6.
Turning to the substance of that issue, there is no dispute that the specific
Exemption 5 protection the government is asserting here is the deliberative process
privilege. (See Pl. Br at 7; Def. Reply at 2-3.) The deliberative process privilege
applies when material that would otherwise have been responsive to a valid FOIA
request implicates the “decision making processes of government agencies[.]” NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks and citation
omitted). As with all FOIA exemptions, “[t]he agency has the burden of establishing
what deliberative process is involved, and the role played by the documents in issue in
the course of that process.” Coastal States Gas Corp, 617 F.2d at 868. Moreover,
“conclusory assertions of privilege will not suffice to carry” the agency’s burden.
Puerto Rico, 823 F.2d at 584-85 (internal quotation marks and citations omitted).
The purpose of the deliberative process privilege, “like the other privileges
within Exemption 5, [is] to (1) protect agency employees providing analysis and
opinions to superiors; (2) protect against premature disclosure of policies; and (3)
protect the public from the confusion of viewing preliminary and potentially inaccurate
rationales for eventual agency action.” Judicial Watch v. Dep’t of State, 875 F. Supp.
2d at 43. Additionally, the deliberative process exemption was created “because the
release of pre-decisional communications could jeopardize the candid and
comprehensive considerations essential for agency decisionmaking.” Putnam v. DOJ,
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873 F. Supp. 705, 712 (D.D.C. 1995) (citing Coastal States Gas Corp., 617 F.2d at
866).
In order to qualify for the deliberative process privilege, a record must be both
“predecisional” and “deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006); see also Puerto Rico, 823 F.2d at 585. A document is “predecisional
if it was generated before the adoption of an agency policy[.]” Judicial Watch v. FDA,
449 F.3d at 151 (internal quotation marks omitted). Moreover, “[i]n determining
whether withheld information is deliberative, courts consider whether the information
was purely factual, or whether it reflects the give-and-take of the consultative process.”
Judicial Watch v. Dep’t of State, 875 F. Supp. 2d at 44 (internal quotation marks and
citations omitted). “Purely factual information is not protected by [Exemption 5]
because it would generally be available through discovery and would not call into
question agency discussion.” Id. On the other hand, “materials embodying officials’
opinions are ordinarily exempt.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992). But it is important to note that this fact/opinion
distinction is “not always dispositive.” People for the Am. Way Found. v. Nat’l Park
Serv., 503 F. Supp. 2d 284, 298 (D.D.C. 2007). Rather, “to fall within the deliberative
process privilege, materials must bear on the formulation or exercise of agency policy-
oriented judgment, and the key question to consider is whether disclosure would tend to
diminish candor within an agency.” Id. (emphasis in original).
In asserting that Exemption 5 applies to the names on the redacted signature
pages at issue here, Defendant relies solely on the fact that that the Memorandum itself
was a predecisional document because the recommendation of the SSB as laid out in the
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Memorandum was not binding on the SSA. (Def. Reply at 3.) This argument is
unavailing for at least two reasons. First, it obscures the fact that the Memorandum
itself is not what is at issue—rather, the dispute between the parties concerns only the
signature pages of the Memorandum. These names themselves are indisputably
“factual”; the names of those who signed the memorandum cannot be described as the
“materials embodying officials’ opinions,” Petroleum Info. Corp., 976 F.2d at 1434, nor
do they “bear on the formulation or exercise of agency policy-oriented judgment,” Nat’l
Park Serv., 503 F. Supp. 2d at 298. Second, Defendant has not carried its burden of
showing how the names implicate any deliberative process that may have gone into the
creation of the Memorandum as a whole; indeed, Defendant has ignored the
“deliberative” aspect of the deliberative process exemption entirely, offering no
argument about “how or why the disclosure of the name[s of the signatories] would
harm the agency decision making process,” or “tend to diminish candor within an
agency.” Nat’l Park Servs., 503 F. Supp. 2d at 298, 302.
These deficiencies are sufficient to dispose of Defendant’s Exemption 5
argument. Specifically, Exemption 5’s deliberative process privilege does not authorize
the name redactions because the signatories’ names themselves are facts that do not
qualify as predecisional, and in any event, Defendant offers no rationale for why the
names should be considered deliberative (and none easily comes to mind). Keeping in
mind, too, that “Congress intended to confine [Exemption 5] ‘as narrowly as [is]
consistent with efficient Government operation[,]’” Puerto Rico, 823 F.2d at 584
(quoting Coastal States Gas Corp., 617 F.2d at 868), this Court concludes that the
signatories’ names were not properly withheld under Exemption 5.
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B. Defendant’s Argument That The Signatories’ Names Can Be Withheld
Pursuant To FOIA Exemption 6
As noted above, Exemption 6 protects from disclosure “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). It is well established that the
analysis under Exemption 6 requires, first, a determination of whether the document in
question qualifies as a “personnel, medical, or similar file[].” Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008). Next, this Court must determine
whether there is a “substantial” privacy interest in preventing the document’s disclosure
NARFE, 873 F.2d at 874, and if so, further engage in a balancing test that weighs “the
privacy interest that would be compromised by disclosure against any public interest in
the requested information.” Multi Ag Media, 515 F.3d at 1228.
1. The Names Qualify As “Similar Files” For Exemption 6 Purposes
In the instant case, the signatories’ names indisputably do not constitute
“personnel” or “medical” files, so the inquiry into whether the names constitute the type
of records subject to Exemption 6 focuses on whether they can be considered “similar”
files. Notably, “[t]he Supreme Court has interpreted the phrase, ‘similar files’ to
include all information that applies to a particular individual,” Lepelletier v. FDIC, 164
F.3d 37, 46 (D.C. Cir. 1999), and the Supreme Court has further recognized that “the
protection of Exemption 6 is not determined merely by the nature of the file in which
the requested information is contained.” U.S. Dep’t of State v. Wash. Post Co., 456
U.S. 595, 601 (1982) (citing U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 372
(1976)). This broad interpretation of the meaning of the phrase “similar file” has led
courts to conclude that Exemption 6 protection not only relates to entire physical files,
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but also encompasses “bits of personal information” that refer to a particular individual.
Judicial Watch v. FDA, 449 F.3d at 152. In this regard, Courts have held specifically
that Exemption 6 covers “such items as a person’s name, address, place of birth,
employment history, and telephone number[,]” Lewis v. DOJ, 867 F. Supp. 2d 1, 17
(D.D.C. 2011) (citing NARFE, 879 F.2d at 875), notwithstanding the nature of the
document or file within which this information appears. See, e.g., Coleman v. Lappin,
607 F. Supp. 2d 15, 22 (D.D.C. 2009) (holding that “such items as individuals’ names,
titles, Social Security numbers, dates of birth, pay grades, union affiliations, and dates
of duty” were properly withheld under Exemption 6).
Given this broad application, there is little doubt that the names at the end of the
Memorandum satisfy Exemption 6’s “similar file” categorization.
2. The Court Lacks Sufficient Information To Evaluate The Alleged
Privacy Interest
Having concluded that the names qualify as “similar file[s]” and thus could be
subject to protection under Exemption 6, this Court must now determine whether there
is a substantial privacy interest that would be compromised if the signatories’ names are
disclosed.
i. Defendant’s Asserted Privacy Interest
Defendant maintains that the signatories of the Memorandum have a substantial
privacy interest in preventing disclosure of their names due to several possible negative
consequences that the signatories might experience if their names are released. In
particular, Defendant argues that releasing the names could result in “annoyance or
harassment in the [signatories’] daily lives.” (Def. Br. at 7, 10 (quoting Lesar v. U.S.
15
Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980).) Defendant further speculates
that such harassment might result from “the publicity associated with the identity of
SSB members’ names[, which] could trigger hostility towards these employees” and
that “these employees could become the target of harassing inquiries if their identities
were released.” (Def. Reply at 6.) Furthermore, Defendant asserts that “[p]ublicity
regarding their work assignments may seriously affect [the signatories’] effectiveness in
conducting other evaluations and recommendations.” (Id.)
As previously noted, in order to evaluate the signatories’ asserted interest in
keeping their names private under the circumstances presented, this Court must
determine whether the asserted interest in privacy is a “substantial” one. See Multi Ag
Media LLC, 515 F.3d at 1229. Courts have concluded that a “substantial privacy
interest exists in avoiding embarrassment, retaliation, or harassment and intense
scrutiny by the media that would likely follow disclosure,” among other things.
Judicial Watch, Inc. v. U.S. Dep’t of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012). But
it is important to note that the “use of the word substantial in this context means less
than it might seem” because a “substantial privacy interest is anything greater than a de
minimis privacy interest.” Id. at 1229-30.
With respect to the interest in keeping one’s name private, courts in this district
have reached different, fact-bound conclusions regarding the substantial or de minimis
nature of the privacy interest in preventing release of individual names. See NARFE,
879 F.2d at 877 (“[D.C.] Circuit precedent establish[es] only that the disclosure of
names and addresses is not inherently and always a significant threat to the privacy of
those listed”). It appears that “whether [disclosure of a list of names] is a significant
16
or de minimis threat depends upon the characteristic(s) revealed by virtue of being on
the particular list, and the consequences likely to ensue.” Id. at 877; see also Ray, 502
U.S. at 176 n. 12. Recent decisions in this jurisdiction appear generally sympathetic to
the argument that “[t]he privacy interest of civilian federal employees includes the right
to control information related to themselves and to avoid disclosures that could
conceivably subject them to annoyance or harassment in either their official or private
lives[.]” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 116
(D.D.C. 2005) (“EPIC”) (internal quotation marks and citations omitted); see also
Judicial Watch, Inc. v. Dep’t of State, 875 F. Supp. 2d at 47 (“There is a substantial
interest in bits of personal information where there is a justified and articulable risk of
media harassment” as a result of the release of such information.) But it is also clear
that the potential adverse consequences must be “real rather than speculative[,]” EPIC,
384 F. Supp. 2d at 116, and a bare assertion that a document’s “disclosure would
constitute a clearly unwarranted invasion of [an individual’s] personal privacy” is not
sufficient to establish that a substantial privacy interest in preventing disclosure exists.
Morley v. CIA, 508 F.3d 1108, 1127-28 (D.C. Cir. 2007). Rather, the agency must
demonstrate that “disclosure would constitute a ‘clearly unwarranted’ invasion of
personal privacy.” Id.; see also id. at 1128 (“To the extent the [defendant] suggests that
the privacy interest in biographical information is self-evident, it is mistaken.”).
Moreover, it is the agency that bears this initial burden. Judicial Watch, Inc. v. Dep’t
of State, 875 F. Supp. 2d at 45.
Here, Defendant’s effort to establish that negative consequences will befall the
signators of the Memorandum is entirely speculative, and thus falls short of establishing
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a substantial privacy interest. For the most part, Defendant’s arguments consist of
purely conclusory statements that a substantial or significant privacy interest is at stake.
(See, e.g., Spindler Decl. ¶ 13 (“The members of the SSB have a significant privacy
interest in avoiding the disclosure of their names.”).) And while Defendant does
suggest that the signatories might be subject to “annoyance or harassment” or become
the target of “harassing inquiries” if their names are released, it says absolutely nothing
more about who would engage in such harassment and why this outcome is likely.
In this respect, the allegations here are readily distinguishable from those on
which other courts have relied in determining that individuals did have a substantial
privacy interest in their names under the circumstances presented. The court in Judicial
Watch v. Dep’t of State, for example, noted that there was significant media interest in
the subject of the FOIA request at issue in that case, and that, as a result, the
individuals whose names had been redacted from the records in question might be
subject to negative media attention. 875 F. Supp. 2d at 47. Defendant has made no
such allegation. Nor does Defendant argue that the nature of the signatories’ jobs, or
the nature of Plaintiff’s organizational activities, will subject those who signed the
Memorandum to possible annoyance or harassment, as was the case in EPIC. 384 F.
Supp. 2d at 116-17. Indeed, Defendant does not even offer facts to suggest that
disclosure may result in “embarrassment in [the signatories’] social and community
relationships,” as was the case in U.S. Dep’t of State v. Ray. 502 U.S. at 176. And the
redacted information here is limited to the signatories’ names, which distinguishes this
case from cases such as Nat’l Park Serv., where additional information, such as
individuals’ names and addresses, was in question. 503 F. Supp. 2d at 306.
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Finally, without more, Defendant’s suggestion that the release of the signatories’
names will impact their ability to perform their jobs effectively is not a persuasive
reason for concluding that the names can be withheld under Exemption 6. Not only
does Defendant provide no further reasoning or evidence to support this contention, but
the assertion is really an Exemption 5 argument, not one that clearly implicates
Exemption 6’s privacy concerns. See Pub. Citizen, Inc. v. Office of Mgmt. & Budget,
598 F.3d 865, 874 (D.C. Cir. 2010) (noting that Exemption 5 “serves to assure that
subordinates within an agency will feel free to provide the decisionmaker with their
uninhibited opinions and recommendations without fear of later being subject to public
ridicule or criticism[]”). Unlike Exemption 5, Exemption 6 is not aimed at protecting
the integrity of an agency’s workflow; rather, its purpose is to avoid disclosures that
“would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). And Defendant has offered no rationale that connects the release of the
names to any privacy interest that the signatories have in their ability to perform their
duties effectively, much less any credible reason for why the release of the names of
those who signed a work memorandum would have any effect on that performance.
In sum, while Defendant might be able to show that the signatories have a
substantial privacy interest in avoiding the harassment or hostility that could result
from the release of their names, Defendant has thus far failed to establish that the
disclosure of the signatories’ names would even potentially lead to such an outcome,
and the Court will not speculate on the bases for Defendant’s bald contention that there
will be such adverse consequences. It is clear beyond cavil that the privacy interest a
FOIA defendant asserts must be “more palpable than mere possibilities,” Rose, 425 U.S.
19at 380 n.19; therefore, the Court concludes that Defendant has thus far failed to carry its
burden of demonstrating a substantial privacy interest in the signatories’ names.
ii. Next Steps
Given that Defendant has identified a potential substantial privacy interest that
might exist in this case but has failed to provide the necessary details for the Court to
evaluate that interest, the Court will deny Defendants’ summary judgment motion and
permit Defendant to provide more information in the form of a revised motion and
memorandum accompanied by additional declarations or affidavits, if it wishes to do so.
Cf. People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F.
Supp. 2d 173, 178 n. 2 (D.D.C. 2011). (“[C]ourts often deny [a movant’s] motion for
summary judgment based upon vague or conclusory declarations and ask the [movant]
to submit more detailed declarations.”); see also Sims v. CIA, 642 F.2d 562, 566 (D.C.
Cir. 1980) (observing that district courts have requested supplemental information
regarding whether individuals have “any other privacy interests which might be
compromised by disclosure” or any other “reason for objection to disclosure of [their]
name[s]”). Defendants may refile their summary judgment motion in accordance with
this Opinion and in accordance with the schedule set forth in the accompanying order.
Any refiled motion should not only follow the procedural requisites set forth in the
order, but should also reflect the fact that, if Defendants are able to carry their burden
of showing a substantial privacy interest upon refiling, that will not end the Exemption
6 inquiry. Rather, when “a substantial privacy interest is at stake,” the court must go on
to “weigh that privacy interest in non-disclosure against the public interest in the
release of the records in order to determine whether, on balance, disclosure would work
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a clearly unwarranted invasion of personal privacy.” NARFE, 873 F.2d at 874.
Plaintiff will therefore have an opportunity to submit a cross-motion for summary
judgment in response to Defendant’s refiling, not only to oppose Defendant’s
substantial privacy interest arguments but also to demonstrate that the public’s interest
in discovering the names of the particular agency employees who signed the
Memorandum outweighs the Defendant’s privacy interest such that disclosure does not
constitute a “clearly unwarranted invasion” of that interest. Id.
IV. CONCLUSION
For the reasons discussed above, Exemption 5 does not justify withholding the
names at issue, and Defendant has thus far failed to carry its burden of establishing that
there is a substantial privacy interest at stake for the purpose of Exemption 6. As a
result, Defendant’s motion for summary judgment is DENIED without prejudice with
respect to the Exemption 6 issue. Because the Court is permitting Defendant to
provide more information related to the asserted privacy interests, Plaintiff’s cross-
motion for summary judgment is DENIED without prejudice as well. To the extent that
the parties seek to proceed further with this matter, both parties are directed to refile
their motions consistent with the accompanying order, providing the additional
information that this Opinion indicates will be necessary for the Court to make an
informed decision.
DATE: March 17, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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