USDOJ: OIP: FOIA Guidance and Resources: Court Decisions: Exemption 6

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Strunk v. U.S. Dep't of State, No. 08-2234, 2012 WL 562398 (D.D.C. Feb. 15, 2012) (Leon, J.). Holding: Granting, in part, CBP's motion for summary judgment with respect to the adequacy of its search and its withholdings pursuant to Exemption 6; and denying, in part, without prejudice CBP's motion for summary judgment as to its withholdings under Exemption 7(E). The court concludes that CBP properly withheld "'unique characters constituting a terminal user ID which is generally assigned to a single person or system user'" and which could identify the agency employee who accessed the record, pursuant to Exemption 6. Noting that "[t]he information [withheld pursuant to Exemption 6] need not be 'embarrassing or of an intimate nature,'" the court determines that "the TECS user has a privacy interest in the withheld information." Conversely, the court observes that "[p]laintiff articulates no public interest, significant or otherwise, to show that the public interest outweighs the privacy interest at stake" and, as such, the court determines that "no public interest is served by disclosure of the unique characters constituting a terminal user ID."

Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle, J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court finds that the State Department "properly withheld third-party identifying information under exemption 7(C), and exemption 6 . . . , and plaintiff has not argued the existence of an overriding public interest to compel disclosure of the otherwise exempt information." Additionally, the court concludes that in the absence of "written consent to disclosure of [plaintiff's sister's] non-public records or plaintiff's showing of an overriding public interest," DOJ properly categorically withheld records concerning plaintiff's sister that were referred to it by the State Department. The court finds that "[a]lthough [plaintiff's sister] has a public record of a criminal prosecution and conviction, . . . she maintains a strong privacy interest 'in avoiding disclosure of personal matters, and [in] controlling information concerning . . . her person.'"

Sensor Sys. Support, Inc. v. FAA, No. 10-262, 2012 WL 424376 (D.N.H. Feb. 9, 2012) (Barbadoro, J.). Holding: Granting, in part, summary judgment to FAA with respect to certain withholdings under the deliberative process privilege, and Exemptions 6 and 7(C); denying, in part, the FAA's motion for summary judgment as to other redactions under the deliberative process privilege as well as withholdings made pursuant to the attorney-client privilege, and ordering the FAA to supplement its Vaughn index or declaration with respect to those records or to submit them for in camera review; and declining to exercise its discretion to make an interim award of attorney's fees to plaintiff. The court holds that the FAA properly withheld pursuant to Exemption 6 identifying information of an agency employee who was investigated for possible misconduct. In terms of the privacy interests, the court notes that "[a]lthough a government employee investigated for performance-related misconduct 'generally possesses a diminished privacy interest' in comparison to private individuals, 'an internal criminal investigation would not invariably trigger FOIA disclosure of the identity of a targeted government employee.'" Conversely, the court finds that where, as here, "the agency has disclosed the fact that an unnamed employee was accused of misconduct," "disclosure of the redacted information 'would shed little light on the conduct of the agency; rather, it would simply identify the alleged wrongdoer.'" Moreover, the court notes that the individual named in the records "was a low-level FAA employee" and concludes that "disclosure of his or her identity would shed little light on the operation of the agency."

Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160 (D.D.C. Feb. 2, 2012) (Kollar-Kotelly, J.). Holding: Granting FCC's motion for summary judgment on the basis that plaintiff conceded the merits of the FCC's withholding decisions; but also concluding that, on the merits, the FCC's withholdings under Exemptions 4 and 6 were appropriate and that it properly released all reasonably segregable information. The court holds that the FCC properly invoked Exemption 6 to withhold "the names and personal identifying information of officers, employees, and representatives of the [submitters]" because "the private interest in non-disclosure outweighs the public interest in disclosure."

Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan. 26, 2012) (Legg, J.). Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees. The court holds that PBGC properly redacted the names of plaintiff's co-workers from "handwritten Flex Time sign-in sheets on which employees sign in and out of work" pursuant to Exemption 6. The court dismisses plaintiff's argument that the records were likely maintained in a Privacy Act system of records and therefore "should have been disclosed to him in full, without redactions." The court finds persuasive PBGC's assertion that these sheets are not contained in its "Employee Payroll, Leave, and Attendance" system of records "because they do not pertain to a specific employee and would not be retrievable by searching for any given employee's name." Furthermore, the court notes that, even if these sheets were maintained "within a system of records, disclosure of which is mandated by the Privacy Act, this would not compel their disclosure in unredacted form" because "under the terms of the Privacy Act, [plaintiff] is entitled only to that information in the system of records that pertains to him."

Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D. Va. Jan. 23, 2012) (Ellis, J.). Holding: Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera. The court finds that "[t]here is no dispute regarding the Army's application of Exemption 6" to protect employees of a realty firm, as well as DOD employees, noting that "there is virtually no public interest in disclosure of the names or contact information in question, and notably, [plaintiff] makes no argument to the contrary." Accordingly, the court concludes that "any minimal public interest in disclosure is outweighed by the individuals' substantial privacy interest."

Yonemoto v. VA, No. 10-15180, 2012 U.S. App. LEXIS 1108 (9th Cir. Jan. 18, 2012) (Berzon, J.) (amended op.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. With respect to the nine contested emails reviewed by the district court in camera for which the VA asserted Exemption 6, the Ninth Circuit holds that "[i]nsofar as the district court made a categorical privacy judgment," rather than making such a determination on a record-by-record basis, "it erred." The Ninth Circuit notes that "[s]uch categorical determinations are rarely proper under the FOIA; they are appropriate only in those circumstances in which disclosing a type of record defined by its content, such as an identifiable individual's rap sheet, will invariably result in an invasion of personal privacy." In this case, the Ninth Circuit determines that "an email . . . is defined not by its content but by its mode of transmission" and, as such, would not be the type of record which could be judged on a categorical basis. Based on its in camera review, the Ninth Circuit concludes that the privacy interests implicated by the records outweigh any public interest in disclosure for emails containing information about an employee's illness, conditions for disqualifying an individual from a clinical trial for medication, and an employee's complaints about a coworker. With respect to one email discussing VA's policy regarding relocation expenses, the Ninth Circuit rules that the names of individuals may be redacted, but finds that the public interest controls with respect to the content. Additionally, the Ninth Circuit concludes that VA must release certain reasonably segregable portions of an email that do not relate to any privacy concerns. For the remaining emails, the Ninth Circuit determines that the VA failed to identify the privacy interests involved and remands this matter to the district court for further consideration, noting that the VA should provide a more detailed Vaughn Index to support its assertion of Exemption 6.

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 11-754, 2012 WL 45499 (D.D.C. Jan. 10, 2012) (Kessler, J.). Holding: Denying defendants' motion for summary judgment; granting plaintiff's cross-motion for summary judgment and holding that DOJ cannot assert a categorical denial under Exemptions 6 and 7(C) for information regarding an investigation into activities of a congressman; and ordering DOJ to submit a Vaughn Index so that the court may make individualized decisions with respect to each withheld record. The court holds that the FBI, EOUSA, and the Criminal Division improperly issued a categorical denial for records regarding DOJ's investigations of a U.S. Representative concerning allegations of bribery and other illegal conduct. At the outset, the court notes that although "Government officials may have a somewhat diminished privacy interest 'they do not surrender all rights of personal privacy when they accept public appointment." Additionally, the court observes that "'individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity,'" and comments that "[t]his may be especially true for politicians who rely on the electorate to return them to public office." However, the court finds that, here, although the U.S. Representative maintains a more than de minimis privacy interest in the records at issue, "the Congressman's statement to the press, as well as other statements he made on the floor of the House of Representatives [addressing the investigations into his activities], clearly 'diminish his interest in privacy.'"

In terms of the public interest, the court finds that "the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job." Accordingly, the court concludes that "disclosure of information concerning DoJ's investigation of Rep. Young would unquestionably 'shed light on the agency's performance of its statutory duties.'" Notably, "in this case, Congress passed a specific piece of legislation . . . directing DoJ to conduct an investigation of all 'allegations of impropriety [concerning the particular transportation earmark linked to Rep. Young] . . . to ascertain if a violation of Federal criminal law has occurred.'" The court determines that "[g]iven the fact that Rep. Young was at that time Chair of the House of Representatives Transportation Committee, and given the detailed remarks that he made on the floor of the House of Representatives about this matter, there is a substantial public interest in examining the adequacy of DoJ's enforcement of other types of law governing the activities of federal officials, in addition to the explicit direction given by Congress to DoJ to investigate [the transportation project]." The court also rejects defendant's argument that "Plaintiff has failed to establish a cognizable public interest because 'it is only the conduct of the agency holding the requested document that can implicate cognizable public interest under FOIA'" and "'there is significant public interest only if there is compelling evidence that the agency is engaged in illegal activity.'" To the contrary, the court holds that "it is clear that there is no requirement that a FOIA requester must always allege that the Government is acting illegally in order to establish the existence of a substantial public interest." Based on the foregoing, the court finds that "the balancing of Rep. Young's privacy interest against the public interest in releasing the requested documents tips strongly in favor of the public interest" and orders DOJ to submit a Vaughn Index so that the court may "make a specific individualized decision for each document as to whether it should be redacted or totally withheld pursuant to Exemption 6 and Exemption 7(C)."

Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E). The court holds that Exemption 6 does not apply to names contained with agency emails because "the plain meaning of the statute and the Second Circuit's method of applying it [laid out in Wood v. FBI] make clear that Exemption 6 applies only to personnel and medical files and to similar files, such as those containing investigations of alleged corruption, passport applications, asylum requests, or detainee abuse." The court finds that "[t]he emails at issue here are nothing like personnel or medical files," but rather "are mundane inter-office communications that do not contain any detailed personal information."

McCann v. HHS, No. 10-1758, 2011 WL 6251090 (D.D.C. Dec. 15, 2011) (Boasberg, J.). Holding: Granting HHS's motion for summary judgment where it properly withheld material pursuant to Exemptions 5, 6, and 7(E) and disclosed all reasonably segregable information. The court concludes that HHS's assertion of Exemption 6 to protect the identities of "'individuals who provided information to an investigator who was conducting an investigation into Plaintiff's HIPAA complaint'" was appropriate. As a threshold issue, the court finds that records at issue constitute "similar files" under the meaning of Exemption 6. In terms of the privacy interest, the court notes that HHS asserts that because the individuals mentioned in the records were plaintiff's co-workers, they "'would be easy to identify'" and disclosure "'could reasonably be expected to cause potential harassment or misuse of the [witness'] information.'" Conversely, the court finds that, under the Supreme Court's decision in Favish, "[p]laintiff's desire only to 'determine the diligence of [the agency's] investigations' does not present a public interest to trigger the balancing requirement."

Nat'l Rt. to Work Legal Def. and Educ. Found., Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661 (D.D.C. Dec. 12, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that DOL properly protected information pursuant to Exemptions 5 and 6. The court holds that DOL properly invoked Exemption 6 to redact telephone numbers from the Verizon invoices reflecting the cell phone and landline calls of the Secretary of Labor and the Deputy Solicitor of Labor. The court finds that "[t]hese numbers constitute information that applies to particular individuals . . . despite the fact that it is unknown from the records which individuals are associated with these numbers." Additionally, the court notes that "there is generally 'a stronger case to be made for the applicability of Exemption 6 to phone numbers . . .'" because "[d]isclosure of these numbers could subject the individuals to 'annoyance, embarrassment, and harassment in the conduct of their official and private lives.'" With respect to plaintiff's argument that "'the public has a significant interest in knowing what influence, if any, the former association of these two top [Department] officials might have had in the decision to delay and then rescind'" a particular regulation, the court finds that "it is not at all clear that disclosure of these phone numbers would actually advance this rarefied interest in this particular case." The court notes that "[i]n all likelihood, these calls include not only organizations and entities with whom Ms. Solis and Ms. Greenfield regularly deal in their professional capacities, but a host of other private persons." The court concludes that "[p]ublic disclosure of all of these numbers would result in a concrete invasion of privacy that outweighs the asserted public interest in this case, making the invasion unwarranted." Moreover, the court notes that if plaintiffs wanted to determine whether these two officials "corresponded by phone with unions or other organizations with which they are allegedly associated, it could have limited its requests to specific telephone numbers associated with those entities," "[b]ut it did not do so." Additionally, the court observes that in camera review of these records would not aid the court in this instance "[s]ince only numbers are redacted."

With respect to "the names and personal contact information of candidates for jobs that Ms. Solis and Ms. Greenfield interviewed," the court finds that "apart from the unsurprising fact that both [officials] worked for labor organizations in the past, [plaintiff] provides no facts suggesting improprieties in the Department's hiring process that would justify releasing the names and other information associated with these job candidates." The court finds that "[t]his information clearly applies to particular individuals . . . and their privacy interests outweigh the speculative public interest asserted by [plaintiff] in this case."

Augustus v. McHugh, No. 02-2545, 2011 WL 5841468 (D.D.C. Nov. 22, 2011) (Roberts, J.). Holding: Denying parties' motions for summary judgment as to the FOIA claims; and ordering defendant to file a supplemental Vaughn Index containing additional detail as to its withholdings. The court denies defendant's motion for summary judgment as to its withholdings under Exemptions 6 and 7(C) because its submissions were insufficiently detailed. Although defendant states that it used a "'coded format . . . to assist the Court and Plaintiff in reviewing the information withheld within the context of the documents themselves,'" the court finds that, in fact, the administrative "record does not include coded designations by each redaction [on the responsive records] that correspond to the agency's reasons for withholding the information." Instead, the court finds that "there are few, if any, numbers placed next to the redacted information that would help explain the information – such as the names and identifying information of individuals against whom allegations were made – [that were] redacted from any particular document." Accordingly, the court orders defendant to "file a copy of the redacted ROI reflecting coded designations that correspond to the agency's Vaughn index."

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 10-1810, 2011 WL 5400572 (D.D.C. Nov. 9, 2011) (Jackson, J.). Holding: Granting DOJ's motion for summary judgment; and denying plaintiff's cross-motion for partial summary judgment. The court evaluates all of the personal privacy redactions, for which BOP, the Criminal Division and the FBI asserted Exemptions 6, 7(C) and 7(F), under Exemption 6 alone. The court finds unpersuasive defendants' argument that the release of the identities of third party journalists and filmmakers "'would associate the individuals with Mr. Abramoff and the criminal investigation related to him[ ] and could subject them to unwarranted attention, harassment, or embarrassment.'" Rather, the court indicates that these individuals were acting "in their professional capacities" and finds that "the fact that some of the people who may be identified in the documents have spoken publicly about their attempts to secure interviews or film deals with Mr. Abramoff reduces the risk that if the information is released, they would be subjected to unwanted attention or embarrassment." Additionally, the court notes that "there is nothing in the record that demonstrates that the individuals who attempted to visit or interview Mr. Abramoff were directly involved in the criminal investigation." The court, instead, determines that "the best argument in favor of finding a privacy interest in this situation is that the D.C. Circuit has broadly construed the privacy interests of third parties under Exemption 6" and, accordingly, concludes that "there is at least a minimal privacy interest involved in this case."

Conversely, the court finds that "any public interest asserted by [plaintiff]," "namely, an interest in knowing the extent to which the BOP and Criminal Division 'sought to prevent Mr. Abramoff from speaking with members of the media,'" "has been satisfied by the documents and portions of the documents already released." As such, the court concludes that "there is no public interest in the limited redacted or withheld information that would justify its disclosure." The court observes that "Congress enacted FOIA to allow citizens to know 'what their government is up to,' . . . not what Mr. Abramoff or various press outlets are up to." Based on the information already released by defendants, the court finds that "plaintiff has been provided with the materials that advance the public interest it identified" and, accordingly, "plaintiff now knows when and whether interview requests were made and how they were resolved." The court concludes that the remaining redactions concern "simply the personal information identifying who made the requests, which is not a matter that has any bearing on [plaintiff's] stated public purpose." Moreover, "how much money a private citizen – even a prisoner – was offered by a private media concern reveals nothing about 'what their government is up to.'" Furthermore, the court notes that its in camera review of the documents supports these findings. In terms of balancing the privacy and public interests, the court finds that "[a]lthough the privacy interest may be minimal, [plaintiff] cannot point to any public interest that overcomes even that weak privacy interest."

Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.). Holding: Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2. As an initial matter, the court notes that although OPR withheld "'the names and identifying information of third parties, including federal employees and private citizens' under Exemption 6 in conjunction with Exemption 7(C)," "[b]ecause any statement establishing that the responsive records were compiled for law enforcement purposes was absent from its supporting declaration, and such a showing is required for reliance on Exemption 7, the Court will consider the matter as if the OPR relied solely on Exemption 6." The court then concludes that OPR properly asserted Exemption 6 where the privacy interests of the individuals identified in the records outweigh any public interests in disclosure and where plaintiff failed to provide any support to the contrary.

Venkataram v. Office of Info. Policy, No. 09-6520, 2011 U.S. Dist. LEXIS 118661 (D. N.J. Oct. 14, 2011) (Simandle, J.). Holding: Remanding matter to DOJ for a more particularized analysis of plaintiff's FOIA requests. The court rejects DOJ's arguments in response to its order to show cause which sought the continued application of an Exemption 6 and 7(C) Glomar in connection with a request for law enforcement records related to a third party. For one, the court concludes that "Defendant's argument that EOUSA's policy of categorical non-disclosure [for requests for records pertaining to third parties] is entitled to deference is without merit and unsupported by the plain statutory language" of the FOIA. The court notes that "Defendant is in essence arguing that the Court give deference to EOUSA's policy interpreting the exemptions under (b)(6) and (b)(7) of FOIA, " but finds that "[t]his argument is contrary to the plain language of the statute which grants the court de novo review of an agency's refusal to disclose requested records." Second, the court finds unavailing defendant's assertion that the Glomar response is "necessary because confirmation of the documents would associate [the third party] with criminal activity and denial of the documents would allow adverse inferences to be drawn." Rather, the court finds that "[d]isclosure of the requested records would not associate [the third party] 'unwarrantedly with alleged criminal activity' because [he] is already associated with such criminal activity by virtue of his indictment." Moreover, the court observes "it is hard to see any privacy rationale at stake for an individual such as [the subject of the request] who was actually indicted for the criminal activity associated with the requested documents." The court finds that "[i]t is only when the privacy concerns addressed by an exemption are present that the requestor must establish a sufficient reason for the disclosure."

Advocates for Highway & Auto Safety v. Fed. Highway Admin., No. 98-306, 2011 WL 4840463 (D.D.C. Oct. 13, 2011) (Roberts, J.). Holding: Denying, without prejudice, both parties' motions for summary judgment; and ordering parties to make additional submissions to further discuss the public and privacy interests involved. As a threshold matter, the court notes that "[b]oth parties agree that the videos at issue are 'similar files' within the meaning of Exemption 6." The court then identifies the public interest in the disclosure of the tapes. For one, the court notes that "despite the passage of some time since the conclusion of the study and the initiation of the instant action," "[t]he study retains importance in the field and has informed successive [Department of Transportation] rulemakings on hours of service of drivers." The court finds that "[w]hen [as here] an agency relies on information in formulating a rule, there is a strong public interest in disclosing the underlying information, even if it relates to particular individuals." Moreover, the court determines that "releasing the videotapes will reveal information as to government expenditures on a project of substantial scale and expense," noting that "the videos were gathered as part of a study which spanned seven years and cost $4.5 million." Lastly, the court finds that although plaintiff has not demonstrated misconduct as to the methodology used in the study, it "raises a legitimate question as to the manner in which relevant data [about whether the subjects of the study appeared drowsy] were extracted from the videos." As such, the court concludes that "[t]he public has an interest in the accuracy of this method."

On the other hand, the court finds that "the drivers have a privacy interest in their videotaped images from the study" to the extent that they reveal "personal details, captured up close and over a prolonged period of time, [which] are not generally available in the ordinary course of daily life." Additionally, the court finds that "[t]he driver's privacy interest is bolstered by the privacy guarantee contained in the form each driver signed." However, the court notes that while "[a]ssurances of confidentiality are to be accorded some weight in assessing privacy interest under FOIA Exemption 6, . . . such promises do not necessarily prohibit disclosure." Here, "each driver was promised that his 'name will not be used' and that the results of the study would be identified only 'by code number to maintain your privacy.'" The court observes that, under a narrow view, "[r]eleasing the videotapes along with corresponding code numbers could violate the privacy pledge . . . , but mere release of the videotapes, with all code number information redacted, might not." Conversely, taking a broader view, "[r]eleasing the videotapes could directly violate the privacy pledge . . . by subjecting the drivers' images to public view." The court concludes that "[t]he privacy protected by the form lies between the two extremes" and determines that "[t]he evidence does not show that [the drivers' privacy interests are] so overwhelming as to settle the matter in [the Federal Highway Administration's (FHWA'S)] favor as a matter of law." Additionally, the court finds that although "FHWA alleges that drivers who are shown to be drowsy or drifting at the wheel might face difficulty in obtaining future employment," the court finds that "FHWA has not presented any evidence that the drivers' current or future employment would be at risk." Moreover, the court finds that the risk of embarrassment to drivers who appeared drowsy at the wheel "only slightly enhances the drivers' privacy interests" and also concludes that "there is no evidence of a serious threat of harassment to any participant driver." Lastly, the court finds that "FHWA has failed to provide evidence that releasing the videotapes will chill future studies." The court finds that "[t]he belief that disclosure might impair the government's ability to acquire similar information in the future carries no weight under FOIA Exemption 6, which focuses on individual privacy interests." In conclusion, the court holds that "the drivers' privacy interest in the videotapes are more than de minimus and sufficient to withstand summary judgment for [plaintiff], but insufficient to warrant summary judgment for FHWA." As such, the court denies both parties' motions for summary judgment without prejudice and orders them to submit "specific additional evidence reflecting the weight of the public interest, particularly the present relevance of the study's methodology, and the weight of the privacy interest, particularly the scope of the confidentiality promised and the likelihood of threats of harassment or liability to the drivers who took part in the study."

Am. Small Bus. League v. Dep't of the Interior, No. 11-01880, 2011 U.S. Dist. LEXIS 114752 (N.D. Cal. Oct. 5, 2011) (Alsup, J.). Holding: Denying plaintiff's motion for summary judgment; and granting defendant's cross-motion for summary judgment. The court holds that defendant properly invoked Exemption 6 to withhold the names and contact information of agency contracting officers. For one, the court notes that the Ninth Circuit "has held that the possibility of harassment, embarrassment, stigma, and retaliation [among the harms cited by defendants in this case] are cognizable privacy interests under the exemption six precedents." The court comments that the responsive records "abound with examples of contracting officers disclosing their own mistakes" and notes that "defendant points to plaintiff's own statements as additional evidence that the contracting officers . . . will be embarrassed, humiliated, or possibly harassed if their names and contact information are released in connection with the reported mistakes." The court also finds that defendant's contention that "disclosure of the requested information would have a chilling effect on its employees' willingness to speak with candor in future reports" is also as "valid factor to be weighed in balancing the public and private interests." In terms of the public interest involved, the court agrees with defendant's assertion that because "the [OIG] report and its findings have already been released, and release of the names, titles, and contact information will not further the public good." Accordingly, the court determines that the "invasion of [the employees'] privacy is not warranted" because their "right of privacy is greater than the public interest served by disclosure of their private information."

Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept. 30, 2011) (Gómez, J.). Holding: Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction. The court adopts the magistrate's finding that the IRS properly withheld a portion of a document under Exemption 6 "because it contains the personal information of an employee." The court notes that plaintiff "has not challenged the withholding of this document and asserts no public interest in its disclosure."

Wadhwa v. VA, No. 11-1718, 2011 WL 4495600 (3d Cir. Sept. 29, 2011) (per curiam)(unpublished disposition). Holding: Affirming the district court's decision to grant summary judgment with respect to information redacted pursuant to Exemption 6; vacating and remanding with respect to the district court's determination regarding the adequacy of the VA's search. The Third Circuit concludes that the district court's grant of summary judgment on the basis of Exemption 6 was correct. The court finds that "[a]lthough [plaintiff] argues that he should have received unredacted versions of certain [third party] medical files, the District Court reasonably calculated that the level of redaction authorized under the 'personnel and medical files and similar files' exemption to the FOIA disclosure requests, [i.e., Exemption 6], balanced the individuals' right to privacy with the purpose of FOIA." The Third Circuit notes that plaintiff "has shown no public interest at all in the preservation of the redacted personal information, which (by the descriptions in the Vaughn index) connects names to medical conditions and procedures, and he has also not shown how the disclosure of that information contributes significantly to the public understanding of the operations of the VA." Accordingly, "the scale 'tips . . . in favor of withholding the redacted material.'"

Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.). Holding: Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions 6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E). The court determines that USPIS properly invoked Exemption 6 to redact "'personally identifiable information (i.e., names and telephone numbers) of law enforcement personnel'" "from a list of newspapers."

Ctr. for Biological Diversity v. Office of the USTR, No. 10-35102, 2011 U.S. App. LEXIS 19197 (9th Cir. Sept.16, 2011) (unpublished disposition). Holding: Vacating the district court's grant of summary judgment to defendant; and remanding for further proceedings. The Ninth Circuit agrees with plaintiff that "the district court failed to apply the proper standard in evaluating whether the USTR could withhold the names of third parties considered for inclusion on a board of directors of a newly-established foundation created to receive 'meritorious initiatives' funds." The Ninth Circuit observes that "[i]n assessing the applicability of Exemption 6 on remand, the district court should 'consider, first, whether the information is contained in a personnel, medical, or "similar" file, and, second, whether release of the information would constitute a clearly unwarranted invasion of the person's privacy'" and, next, the district court should balance the privacy interests of the individuals identified in the records against the public interest in disclosure.

Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.). Holding: Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search. The court holds that BLM properly asserted Exemptions 6 and 7(C) to protect various third party information "including addresses, social security numbers, dates of birth, criminal histories, past addresses, private signatures, phone numbers, drivers license numbers, motor vehicle identification numbers, fax numbers, private e-mail addresses, credit card number, and eBay and Paypal identifiers."

Pinson v. Lappin, No. 10-1844, 2011 WL 3806160 (D.D.C. Aug. 30, 2011) (Howell, J.). Holding: Granting defendant's motion for summary judgment on the basis of its withholdings under Exemption 6; denying plaintiff's claim for declaratory relief; and granting plaintiff's motion for an award of costs. The court grants BOP's motion for summary judgment on the basis that it properly redacted telephone numbers and email addresses of staff at certain offices pursuant to Exemption 6 "both because this information was not requested and was not responsive to the request and because this information is exempt from disclosure." Additionally, the court notes that plaintiff concedes that "'[t]here is no further information that could be obtained through [his] lawsuit that the agency has not now released.'"

Taitz v. Astrue, No. 11-402, 2011 WL 3805741 (D.D.C. Aug. 30, 2011) (Lamberth, J.). Holding: Granting SSA's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemption 6. As a preliminary matter, the court notes that plaintiff only seeks "the date of the application as well as the zip code and gender of the applicant" that is listed on the Form SS-5 which is at issue. In terms of the privacy interests, the court finds that "[b]ecause the redacted Form SS-5 contains identifying information associated with a living individual's social security number, its disclosure would compromise a substantial privacy interest." Redaction of the name, "while still retaining" the number, and other pertinent information, "does not diminish the privacy interest." Moreover, the court determines that "Plaintiff's allegation that the requested Form SS-5 is associated with a public official [allegedly, President Obama] does not diminish the privacy interest at stake here." The court further notes "an individual's status as a public official does not, as plaintiff contends, 'make exemption 6 irrelevant to him and his vital records.'" The court rejects plaintiff's claims of fraud on the part of the Social Security Administration, finding that "plaintiff's unsubstantiated allegations, without more, do not persuade the Court that the requested information 'would likely disclose' official misconduct, . . . and thus do not affect the calculus here." As to the public interest at issue, the court concludes that "[t]he disclosure of an individual's Form SS-5 would provide absolutely no insight into the SSA's operations or activities." Furthermore, the court concludes that plaintiff's "vehement allegations of fraud consist of mere 'bare suspicion[s]' and thus fail to satisfy the public interest standard required under FOIA."

Skinner v. DOJ, No. 09-725, 2011 U.S. Dist. LEXIS 94450 (D.D.C. Aug. 24, 2011) (Friedman, J.). Holding: Granting, in part, defendants' renewed motion for summary judgment based on its withholdings under Exemptions 6, 7(C), and 7(E); denying, in part and without prejudice, defendants' motion for summary judgment with respect to information withheld under Exemption 2. The court concludes that the Army properly redacted third party names in three documents referred by ATF pursuant to Exemption 6, noting that "[w]holly absent from plaintiff's opposition is an assertion of any public interest which outweighs the personal privacy interests of these third parties."

Reich v. U.S. Dep't of Energy, No. 09-10883, 2011 U.S. Dist. LEXIS 93600 (D. Mass. Aug. 19, 2011) (Gorton, J.). Holding: Granting defendant's motion for summary judgment. In the alternative, the court concludes even if the investigative report were considered to be an agency record for FOIA purposes, it would be exempt from disclosure pursuant to Exemptions 6 and 7(C), because it "relates to dismissed allegations of misconduct by individuals employed by a privately-owned facility and does not elaborate upon operations of the DOE." The court finds that plaintiff has not presented credible evidence to demonstrate that the exemptions have been waived by a purported disclosure of the report to editors of scientific journals, but also opines that "the fact that some information about the investigation was released to the public does not indicate that the privacy of the entire document was waived."

Yonemoto v. VA, No. 10-15180, 2011 WL 3606596 (9th Cir. Aug. 17, 2011) (Berzon, J.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. With respect to the nine contested emails reviewed by the district court in camera for which the VA asserted Exemption 6, the Ninth Circuit holds that "[i]nsofar as the district court made a categorical privacy judgment," rather than making such a determination on a record-by-record basis, "it erred." The Ninth Circuit notes that "[s]uch categorical determinations are rarely proper under the FOIA; they are appropriate only in those circumstances in which disclosing a type of record defined by its content, such as an identifiable individual's rap sheet, will invariably result in an invasion of personal privacy." In this case, the Ninth Circuit determines that "an email . . . is defined not by its content but by its mode of transmission" and, as such, would not be the type of record which could be judged on a categorical basis. Based on its in camera review, the Ninth Circuit concludes that the privacy interests implicated by the records outweigh any public interest in disclosure for emails containing information about an employee's illness, conditions for disqualifying an individual from a clinical trial for medication, and an employee's complaints about a coworker. With respect to one email discussing VA's policy regarding relocation expenses, the Ninth Circuit rules that the names of individuals may be redacted, but finds that the public interest controls with respect to the content. Additionally, the Ninth Circuit concludes that VA must release certain reasonably segregable portions of an email that do not relate to any privacy concerns. For the remaining emails, the Ninth Circuit determines that the VA failed to identify the privacy interests involved and remands this matter to the district court for further consideration, noting that the VA should provide a more detailed Vaughn Index to support its assertion of Exemption 6.

Smith v. Dep't of Labor, No. 10-1253, 2011 WL 3099703 (D.D.C. July 26, 2011) (Boasberg, J.). Holding: Granting defendant's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 5 and 6 were proper; and denying plaintiff's cross-motion for summary judgment. As a threshold matter, the court determines that based on its in camera review the "names of low-level MSHA employees, identifying information about individuals who were the subject of internal personal discussions, personal opinions of job performance, personal phone numbers, a home address, and a personal e-mail address" all qualify as "similar files" within the meaning of Exemption 6. The court also comments that "all of the redactions here are either personal or job-performance information." In terms of the privacy interests, the court notes that "'[a]n employee has at least a minimal privacy interest in his or her employment history and job performance evaluations . . . [and] [t]hat privacy interest arises in part from the presumed embarrassment or stigma wrought by negative disclosures.'" Here, the court finds that disclosure of the information at issue "would constitute an unwarranted invasion of employees' personal privacy" because "[t]he information redacted directly relates to performance appraisals and contains some negative evaluations." Conversely, the court finds that plaintiff's "unsubstantiated allegations of a government cover-up" in connection with the government's investigation into a mining disaster are not sufficient to demonstrate a public interest in disclosure of the information at stake. In addition, the court finds that its in camera review "has demonstrated that the redacted material is entirely unrelated to the allegations Plaintiff makes." Therefore, the court concludes that DOL properly withheld invoked Exemption 6 to protect this information.

Bonilla v. DOJ, No. 10-22168, 2011 WL 3156281 (S.D. Fla. July 25, 2011) (King, J.). Holding: Granting DOJ's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemption 6. As an initial matter, the court concludes that the records at issue consisting of a former prosecutor's Notification of Personnel Action and letters of reference discussing his personal characteristics constitute "similar files" under Exemption 6. The court notes that the prosecutors "status as a former federal employee does not render his privacy interest in the subject records nonexistent or unimportant." The court then finds that the former prosecutor has a privacy interest in these records because "[t]hey reveal his colleagues' personal opinions of him as a person and as a prosecutor" and notes that "[t]his information [ ] would not normally be publicly available." In terms of the public interest, the court determines that "Plaintiff's allegations of impropriety are pure speculation, and in fact have been found meritless by the presiding court in his criminal action." Additionally, the court finds that "the purely personal matters contained in the records [at issue] fail to further even the broader purpose of FOIA, to inform citizens about 'what their government is up to.'" As such, the court holds that DOJ properly invoked Exemption 6 because "[t]he information in the records 'reveals little or nothing about an agency's own conduct,' . . . and would thus 'constitute an invasion of . . . privacy' that is excessively disproportionate to the public interest at stake and is therefore clearly unwarranted."

Nat'l Day Laborer Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.). Holding: Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney-client privileges. The court "assume[s] arguendo that the documents, or some portion thereof, could satisfy the threshold test of Exemption 6 or 7(C)." With respect to agency employees mentioned in the withheld records, the court concludes that "the public interest in disclosure outweighs the privacy interest as regards the names of agency heads or high-level subordinates . . . and the titles and places of work of all federal employees and third parties." The court finds that "[t]here is a substantial public interest in knowing whether the documents at issue reflect high-level agency policy, helping to inform the public as to 'what their government is up to.'" Additionally, "[t]he disclosure of the places of work and titles but not the names of subordinate staff will provide plaintiffs with a greater ability to ascertain the degree to which documents reflect the views of the agency versus those of individual agency employees, and will enable plaintiffs to tests defendants' assertions of deliberative process to a greater degree, without exposing lower level federal employees to the risk of harassment or annoyance." However, the court grants summary judgment to defendants with respect to email addresses and phone numbers because "[p]laintiffs evince no interest in [them]."

Cuban v. SEC, No. 09-996, 2011 U.S. Dist LEXIS 71064 (D.D.C. July 1, 2011) (Walton, J.). Holding: Granting, in part, defendant's motion for reconsideration with respect to the adequacy of the SEC’s search for a portion of the request and its assertion of Exemptions 3, 5 and 7(C) to withhold certain information; to the extent defendant's motion is denied, the court requires the SEC to provide additional information regarding searches and the application of exemptions. The court concludes that the SEC "has not presented sufficient new facts to warrant reconsideration of the Court's prior decision that the defendant has not satisfied its burden for withholding the subject documents in their entirety under Exemption 6" where the supplemental declaration is "devoid of any specific reasons why the names in the documents and other identifying information cannot be redacted to adequately protect the privacy interest about which the defendant is concerned." Additionally, the court finds that "this new information fails to address the Court's finding that the 'public interest favors disclosure of some parts of the records' or an answer as to why partial redaction is inadequate."

Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin, Mag.). Holding: Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F). The court finds that BOP's assertion of Exemption 6 to protect the names and identifying information of staff, inmates, and members of the Board of Inquiry is not appropriate. Interpreting the threshold narrowly, the court finds that the withheld records and video do not qualify as "'similar files'" within the meaning of Exemption 6. Moreover, the court comments that "[a]lthough the supporting declaration asserts that some of the information withheld under Exemption 6 is 'clearly personal,' there is nothing beyond this conclusory statement that supports a finding that release of the information could reasonably be expected to constitute an invasion of personal privacy." However, the court finds that "BOP properly withheld information regarding the names and medical conditions and/or treatment of prisoners involved in the riot" pursuant to Exemption 6.

Kensington Res. & Recovery v. Dep't of Treasury, No. 10-3538, 2011 U.S. Dist. LEXIS 71041 (N.D. Ill. June 30, 2011) (Kendall, J.). Holding: Granting defendants' motion for summary judgment on the basis that the Bureau of Public Debt (BPD) was not required to create records that are not in existence and, in the alternative, the requested information is protected by Exemption 6. In the alternative, the court determines that Exemption 6 also applies to the requested information. As a threshold matter, the court finds that "[b]ecause the FOIA request encompasses information leading to the identification of individual bondholders, it constitutes a 'similar file' under Exemption 6." In terms of the privacy interests, the court determines that "[t]he disclosure of specific information on the registration records, such as the name, address, or bond serial number would publicize the financial affairs of the individual bondholders." Moreover, disclosure "would also expose the bondholders to unsolicited attempts by [plaintiff] and other companies to collect the unredeemed bonds." Additionally, the court finds that the agency's regulation governing individuals purchasing securities in which "BPD pledged confidentiality and protection under Exemption 6" provided the current and potential bondholders with an expectation that their information would be kept private. The court rejects the public interests set forth by plaintiff that "disclosure of the requested registration records would serve the public interest by exposing the BPD's outdated record-keeping system and the distribution of the unclaimed monies would lower the national debt." To the contrary, the court finds that "the release of the registration records of individual bondholders would not elucidate what the BPD 'is up to'; instead, the records would impermissibly expose private citizens' financial information."

Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 U.S. Dist. LEXIS 63829 (S.D.N.Y. June 16, 2011) (Scheindlin, J.). Holding: Granting, in part, defendants' motion for summary judgment as to withholdings under Exemption 5; and granting, in part, plaintiffs' motion for summary judgment with respect to material withheld under Exemptions 6, 7(C), and 7(E). To the extent these documents qualified under the threshold of Exemptions 6 or 7(C), the court adds that under either standard "the public interest in disclosure outweighs the privacy interest" because "there is a substantial interest in knowing whether the expectations and requirements articulated in the memoranda reflect high-level agency policy." The court finds that disclosure of the names of the agency employees alone "in conjunction with the already disclosed content of the memoranda, will help to inform the public as to 'what their government is up to.'"

Prudential Locations LLC v. HUD, No. 09-16995, 2011 WL 2276206 (9th Cir. June 9, 2011) (Berzon, J.). Holding: Vacating the district court's grant of summary judgment to HUD and remanding the matter for further proceedings. As a threshold matter, the Ninth Circuit notes that plaintiff does not dispute that the documents at issue qualify as "similar files" under Exemption 6 and further comments that it "express[es] no view on that question and assume[s] without deciding that the documents qualify." The Ninth Circuit then evaluates whether disclosure of the identities of the two individuals who reported the suspected violations of the law to HUD regarding plaintiff "'would constitute a clearly unwarranted invasion of personal privacy.'" In terms of privacy interests, the Ninth Circuit explains that "[t]he government . . . is not required to establish that a privacy invasion is certain to occur," but "[r]ather, it is enough to show a 'substantial probability that the disclosure will lead to' an invasion of privacy." The Ninth Circuit further opines that "[t]he marked difference in the statutory text [between] . . . exemptions [6 and 7(C)] indicates that our 'substantial probability' gloss on Exemption 6 requires a significantly higher showing that an invasion will occur than the 'could reasonably be expected' standard found in Exemption 7(C)."

The Ninth Circuit suggests various privacy interests that the complainants may have in the disclosure of their identities. The Ninth Circuit acknowledges that "if the complainants are or were employed by [plaintiff], or even if they worked in non-managerial positions in the same industry as [plaintiff], there might well be a substantial probability that disclosure would lead to an invasion of personal privacy — namely, revealing their whistle-blower status could result in stigmatization, harassment, or retaliation." However, the Ninth Circuit also finds that "releasing the informants' identifying information might not threaten any nontrivial invasion of personal privacy." For example, the Ninth Circuit states that it "fail[s] to see . . . how disclosing the names of managerial employees at an industry competitor of [plaintiff] would infringe personal privacy interests in any nontrivial way," "because such complaints would have been made primarily for business reasons, any plausible personal privacy interests would be nonexistent or seriously diminished."

Similarly, the Ninth Circuit finds that while "complainants entirely unaffiliated with [plaintiff] or the real estate industry might have some nontrivial privacy interest in not being associated with the investigation, . . . it is doubtful on these facts that any such interest would mirror the ordinary concerns accompanying law enforcement investigations, such as fear of retaliation or harassment." Moreover, the Ninth Circuit observes that "[a]t a minimum, a cognizable privacy interest would need to be identified, and could then, if weak, be discounted in the balancing test." The Ninth Circuit further notes that it is possible that "any risk to personal privacy, if one could be identified, would be no 'more palpable than [a] mere possibilit[y]' . . . and so insufficient to justify the redactions no matter the public interest." Lastly, the Ninth Circuit comments that the complainant might be a public official, who maintains diminished privacy rights and "that fact, if true, would be quite pertinent to the weight accorded personal privacy interests in the Exemption 6 balancing test."

For the complainant who requested anonymity, the Ninth Circuit finds that such a request could "suggest[ ] he feared some adverse consequences could ensue from revealing his identity." Nonetheless, the Ninth Circuit concludes that "absent more information, [it is] required to speculate about the likelihood that a nontrivial interest is at stake with regard to either complainant, something [the Ninth Circuit] is not permitted to do at the procedural stage." Accordingly, the Ninth Circuit vacates the grant of summary judgment to HUD and remands the matter "to allow the parties to develop an adequate factual basis for the district court to determine whether the information at stake may be withheld pursuant to Exemption 6."

Venkataram v. Office of Info. Policy, No. 09-6520, 2011 WL 2038735 (D.N.J. May 25, 2011) (Simandle, J.). Holding: Granting defendants' motion for summary judgment with respect to an individual government employee named in the complaint as well as for any unexhausted FOIA requests; and ordering defendants to show cause as to why the matter should not be remanded to the agency to process plaintiff's request. The court rejects defendants' argument that records pertaining to a third-party who was dismissed by federal prosecutors from plaintiff's criminal case are categorically exempt from disclosure pursuant to Exemptions 6 and 7(C). Referencing the Supreme Court's decision in Reporters Committee, the court finds that "[h]ere, Defendants attempt to exclude from production a much broader category of documents than any previously recognized categorical exception under Exemption 6 or 7(C)." The court finds that "the mere fact that a document contains information related to a private individual does not mean it contains private personal information, much less that it can categorically be reasonably expected to constitute an unwarranted invasion of personal privacy."

Citing an "extreme" hypothetical, the court opines that "suppose that the Department of Justice had a memorandum explaining their discovery that no such individual exists, and that the indictment was mistaken." In such a case, the court comments "[t]his document would not be exempt from disclosure on the basis that it revealed [the third party's] private information even though it would be responsive to Plaintiff's request." Moreover, the court notes that "[e]ven in more plausible circumstances, some responsive documents may contain no private information about [the third party] (for example, a document stating the agency's belief that, based on the allegations in the superseding indictment, the United States lacks jurisdiction over [him])." Moreover, the court finds that "even if such documents contained more information about [the third party] than in the above suppositions, the balance may not inexorably tip toward privacy; the individual in question in this case was indicted for a serious federal crime, as contrasted with some mere witness or person of interest who was not charged." The court finds that "[t]here may be a heightened public interest in learning about the government's conduct with respect to a criminal defendant and a diminished expectation of personal privacy residing in the accused."

Additionally, the court notes that if the Supreme Court had intended to "exempt all documents with information related to private individuals" without further analysis, the Court in Reporters Committee, "could have simply observed that the claimants sought information about a particular private individual," rather than "perform[ing] a lengthy examination of whether the aggregation of information in a 'rap sheet' made the record one that contains private information." As such, the court orders "the remaining Defendant to show cause why the Court should not remand Plaintiff's original, exhausted FOIA request to the Department of Justice so that the agency may review it in light of this Opinion and determine what documents, if any, must be produced for Plaintiff, with any exemption to be claimed with specificity."

Milton v. DOJ, No. 08-242, 2011 WL 1743234 (D.D.C. May 6, 2011) (Roberts, J.). Holding: Denying BOP's motion for summary judgment without prejudice, finding that although BOP properly invoked Exemption 6 as a basis for withholding certain recordings, it did not satisfy its obligations with respect to segregability. As an initial matter, the court concludes that the telephone recordings at issue meet the threshold of Exemption 6 because they "consist of information that pertain to particular individuals." In terms of the privacy interests, the court finds that "the '[r]elease of a recording of a telephone conversation can be an invasion of personal privacy.'" As to the public interest, the court determines that "there is no public interest in disclosure of information about private citizens that reveals 'little or nothing about an agency's own conduct.'" Additionally, the court notes that plaintiff "has not articulated any significant public interest in disclosure of the phone records." The court finds that "[i]n the absence of any evidence of government impropriety," plaintiff's claim that the recordings are needed to "support his innocence" only represents a personal interest in the records at issue. The court also rejects plaintiff's assertion that the waiver that he signed "allowing [BOP] to monitor his phone calls . . . implicitly extends to any party who accepted his calls." The court notes that plaintiff "has not produced Privacy Act waivers from the individuals with whom he spoke on the telephone" or other evidence of waiver, and concludes that "[n]o uncorroborated surmise that the persons he called necessarily would have heard a recorded warning that the calls were being monitored or recorded should suffice to replace a written Privacy Act waiver." Accordingly, the court holds that "[b]ecause the privacy interest is more than de minimis, the Department of Justice's withholding under Exemption 6 was proper."

Lowy v. IRS, No. 10-767, 2011 U.S. Dist. LEXIS 34168 (N.D. Cal. Mar. 30, 2011) (Illston, J.). Holding: Denying both defendant's and plaintiffs' motions for summary judgment and ordering defendant to supplement its submissions. The court concludes that the IRS's "Vaughn Index provides sufficient justification for the withholding and/or redaction of personal information [such as mobile telephone numbers, bank account numbers of third parties, and similar types of information] under Exemption 6."

Reno Newspapers, Inc. v. U.S. Parole Comm'n, No. 09-683, 2011 U.S. Dist. LEXIS 33957 (D. Nev. Mar. 29, 2011) (Reed, J.). Holding: Granting in part and denying in part plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment. The court holds that "[g]iven Plaintiff's and the public's strong interest in the Defendants' determination that [the subject of the request] was eligible for parole and the congressional policy in favor of disclosure," the defendants must release "all segregable" information from documents that were withheld in full such as the subject's "parole application, [U.S. Parole Comission's (USPC's)] assessment prepared before a parole hearing, USPC's initial parole hearing summary, bank statements, and monthly parole supervision reports submitted by [the subject] to the [United States Probation Office (USPO)] Probation Officer." The court reasons that "[b]oth Plaintiff and the public have a strong interest in the disclosure of information regarding Defendants' decision that [the subject] was a suitable candidate for parole, as the motivating factors behind this decision could indicate a deficiency in our nation's parole system." Moreover, the court finds that the subject's "privacy interest in the withheld documents appears to range from a clear privacy interest in the medical . . . and bank records . . . to a more nebulous one in documents such as a USPO Probation Officer's chronological reports." Additionally, the court notes that "there does not appear to be an alternate source of [the] information" at issue.

Judicial Watch, Inc. v. Bd. of Gvn'rs of Fed. Reserve Sys., No. 09-2138, 2011 WL 1134414 (D.D.C. Mar. 29, 2011) (Roberts, J.). Holding: Granting the Board's motion for summary judgment where all that was withheld were entries for personal visits. The court concludes that the Board properly redacted the names and organizations for entries indentified as personal visits from the requested visitor logs pursuant to Exemption 6. The court rejects plaintiff's claim that "with the exception of visitors identified as family members, the private visitors 'could have been anyone, meeting high level government officials for what, at the moment, are completely unknown purposes.'" Here, the Board "confirmed with the offices of Bernanke" and a member of the Board that "'the visit was in fact of a personal nature and was in no way business related.'" The court finds that plaintiff's "[m]ere speculation that the visits may not have been, in fact, personal is insufficient to rebut the presumption of good faith accorded to the agency affidavit."

In terms of the privacy interest, the court concludes that "visitors have at least some privacy interest in protecting their names from disclosure, as it is quite conceivable that parties other than [plaintiff] might be interested in obtaining the names of individuals personally affiliated with high-ranking members of the Board." Conversely, "the names of the personal visitors reveal nothing about the Board's activities or conduct, [so] there is no public interest in disclosure." Accordingly, "[b]ecause [the] privacy interest is more than de minimis, the Board's withholding under Exemption 6 was proper."

Long v. DOJ, No. 06-1086, 2011 U.S. Dist. LEXIS 31435 (N.D.N.Y. Mar. 25, 2011) (Mordue, C.J.). Holding: Granting DOJ's Rule 54(b) motion for reconsideration regarding the court's prior order that directed the agency to release fields in the case management database and holding that such information is exempt from disclosure pursuant to Exemptions 3 and 6. As an threshold matter, the court finds that because the information at issue, i.e., "the vaccine type and date of administration from petitions filed by individuals, or their legal representatives, against HHS, with the Court of Federal Claims alleging injury or death as a result of a vaccination," is derived "from an individual's medical file, it is personal information." The court then finds that "there is a measurable privacy interest at stake" because the docket numbers, which have already been publicly released, "provide[] the link necessary to indentify the individual to whom the vaccine type and date of administration information belongs." In terms of the public interest, the court rejects plaintiffs' claims that "disclosure of the vaccine type and date of administration will shed light on the DOJ's handling of petitions brought under the Vaccine Act" and, in particular, will shed light on the government's handling of autism-related claims. Rather, the court finds release of the requested database fields "would not shed light on the DOJ's handling of autism cases because such information would not indicate whether the petition from which it came contained an 'autism-related claim.'" Moreover, to the extent that such information is available on court docket sheets, as plaintiffs' contend, the court notes that "they already have access to it." The court concludes that "disclosure of a list of the vaccine type and date of administration would not shed any light on conduct by the DOJ or HHS," and, accordingly, "[h]aving balanced the privacy interests of the individuals to whom this information belongs against the non-existent public interest, . . . disclosure [is] clearly unwarranted."

Wade v. IRS, No. 10-65, 2011 WL 1028124 (D.D.C. Mar. 23, 2011) (Collyer, J.). Holding: Granting the IRS's motion for summary judgment on the basis that it properly withheld home phone numbers of third parties pursuant to Exemption 6. The court determines that the IRS properly asserted Exemption 6 to withhold the home telephone numbers of third parties who are permitted to practice before the IRS. The court first examines the public interest, determining that "the disclosure of the home phone numbers of Enrolled Agents here might, as Plaintiffs argue, help the public at large access greater contact information for Enrolled Agents who complete public tax returns, 'but it would not appreciably further the citizens right to be informed about what their government is up to.'" With regard to the privacy interests involved, the court, citing the Supreme Court's privacy analysis in Department of Defense v. Federal Labor Relations Authority, concludes that "disclosure of the Enrolled Agents' home phone numbers . . . would be an unwarranted invasion of privacy protected by Exemption 6." "Accordingly, there is compelling public privacy interest in withholding home phone numbers, and, when balanced against the minimal, if any, public interest in disclosure, production of the home telephone numbers of Enrolled Agents would 'constitute a clearly unwarranted invasion of personal privacy.'" The court rejects plaintiff's claim that "the home phone numbers are not necessarily home phone numbers at all, but really are 'secondary' numbers that the IRS assumes are home numbers." Rather, the court finds that "the Enrolled Agents identified a number as their 'home' phone number in the [Enrolled Practitioner Program System] database, and should be afforded the privacy attendant to that."

Wadhwa v. VA, No. 06-4362, 2011 WL 883157 (D.N.J. Mar. 11, 2011) (Irenas, J.). Holding: Granting VA's motion to alter judgment entered in favor of plaintiff where court ordered the release of third party's medical chart. The court grants VA's motion to alter the judgment entered in favor of plaintiff where the court ordered the release of a third party's medical chart. "[A]fter reconsidering the issue, the Court concludes that it erred in concluding that the patient had no privacy interest whatsoever in protecting the redacted information from disclosure to [plaintiff]." Although the court comments that plaintiff's relationship with the patient, as his treating physician, is "directly relevant to determining the extent of the privacy invasion," it ultimately concludes that "the extent of the [privacy] invasion [in this case is] de minimus, not zero." Moreover, "[b]alancing the de minimus invasion (rather than no invasion) of privacy against the entirely absent public interest in disclosure, the scale tips ever so slightly in favor of withholding the redacted material."

Hulstein v. DEA, No. 10-4112, 2011 U.S. Dist. LEXIS 25788 (N.D. Iowa Mar. 11, 2011) (Zoss, Mag.). Holding: Granting plaintiff's motion for summary judgment, in part with respect to certain withholdings, and denying in part; reserving ruling on plaintiff's motion for summary judgment until DEA submits supplemental information; and granting DEA's motion for summary judgment with respect to withholding of internal codes and information redacted pursuant to the Bank Secrecy Act. The court grants plaintiff's motion for summary judgment with respect to the release of DEA Special Agent names and signatures, but will review its ruling on this point upon receiving a supplemental affidavit from DEA.

ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik, J.). Holding: Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure. "Plaintiff does not seek disclosure of the names, contact information, or titles of law enforcement personnel or the government contractors" which were withheld by FBI pursuant to Exemption 6.

Steiniger v. IRS, No. 10-282, 2011 U.S. Dist. LEXIS 22265 (S.D.N.Y. Mar. 3, 2011) (Francis, Mag.). Holding: Granting government's motion for summary judgment upon finding that searches were reasonable and documents properly redacted. The court holds that EOUSA properly invoked Exemptions 6 and 7(C) to withhold the name of a third party listed on plaintiff's rap sheet, "a document prepared by a third party for law enforcement purposes reflecting that person's mental impressions concerning the matter under investigation," and the identities of third parties mentioned in plaintiff's presentence report. The court finds that "[i]n each instance, the redacted or withheld information plainly implicated the privacy interests of persons other than [plaintiff]" and "in no instance has he suggested what public interest might weigh in favor of disclosure." Moreover, the court notes that "'[w]here the requestor seeks [private] information in furtherance of private litigation, courts typically reject such disclosure as not falling within the ambit of FOIA's goal of public disclosure of agency action.'"

Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.). With respect to BOP's decision to withhold social security numbers, the court finds that these identifiers have "a specific relationship to [an] individual, thus meeting the threshold requirement for Exemption 6 protection" and that "the privacy interest in one's social security number is self-evident." However, the court finds that BOP has not sufficiently justified its withholding of personal psychiatric/medical information, noting that "while the Court suspects the [BOP's] redactions were likely proper given the substantial privacy interest that exist in one's medical and psychiatric histories and information, the Court cannot simply take [BOP's] word for it." Accordingly, the court concludes that "the Vaughn index must provide greater specificity concerning how the redacted information falls within that category."

Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.). BOP did not adequately describe its rationale for redacting certain third party information in five categories of responsive records related to tort claims and litigation. The court finds that although it "suspects that it would be an invasion of privacy to produce the contact information (e.g., phone numbers, addresses, etc.) of individuals who work for [BOP], . . . the defendant has simply not made the case for non-disclosure." "[W]hile [BOP] has repeatedly provided the Court with the law that it must apply, it has not provided the Court with sufficient specificity of the underlying facts needed to appropriately apply that legal authority to the case at hand." Additionally, the court determines that, with regard to BOP's assertion of Exemption 7(C), it "has not sufficiently established – in any of its filings – that the [five categories of documents at issue] were compiled for law enforcement purposes."

Prison Legal News v. Lappin, No. 05-1812, 2011 U.S. Dist. LEXIS 18671 (D.D.C. Feb. 25, 2011) (Walton, J.). The court holds that, with respect to four categories of responsive documents, BOP has failed to justify its withholdings pursuant to Exemptions 2, 6 and 7(C). For one, the court finds that BOP "has made no attempt at showing that the information withheld under Exemption 2 – apparently the EEOC file numbers – was for predominantly internal purposes or 'that disclosure may risk circumvention of agency regulation, or that the material relates to trivial administrative matters of no public interest.'" In fact, the court notes that "in a case such as this one where the number of responsive pages produced climbs above 11,000, the EEOC files numbers may very much be in the public interest as a means for the effective organization and dissemination of the requested information."

Caruso v. ATF, No. 10-6026, 2011 U.S. Dist. LEXIS 16888 (D. Ore. Feb. 16, 2011) (Hogan, J.). With regard to ATF's assertion of Exemption 6, the court concludes that the requested firearms records "do[] not equate to personnel or medical file

Bonilla v. DOJ, No. 10-22168, 2011 WL 122023 (S.D. Fla. Jan. 13, 2011) (King, J.). The court concludes the agency's categorical withholding of the requested records is not appropriate where "Defendant has not met its burden of showing the type of record requested by Plaintiff would not reveal any 'official information' about a government agency." Moreover, "[b]ased on the record before it, the Court cannot find that this is a case where the balance 'characteristically tips in one direction.'"

CASA de Maryland, Inc. v. DHS, No. 10-1264, 2011 WL 288684 (4th Cir. Jan. 31, 2011) (per curiam). The Fourth Circuit affirms the district court's decision ordering the disclosure of names contained in an internal investigation report authored by DHS's Office of Professional Responsibility (OPR). Upon reviewing the record, the Circuit concludes that the district court properly found that the public interest in disclosure outweighed the privacy interest of individuals identified in the records in light of the evidence produced by plaintiff indicating that agency impropriety might have occurred in connection with the raid. The Circuit notes that plaintiff "submitted affidavits from thirteen of the arrestees which all suggested that government agents arrested them without first obtaining any information about their immigration status and ignored non-Latino day laborers," and also "submitted the declarations of ICE agents given during removal proceedings for some of the arrestees" which "differed markedly" from affidavits included in the OPR report. Additionally, the Circuit observes that the OPR report "contained statements from an ICE agent indicating that supervisory personnel suggested that he should not admit that the [] raid was intentional."

Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401 (D. Colo. Dec. 7, 2010) (Arguello, J.). The court finds that the SEC properly withheld pursuant to Exemption 6 the "names of all employees having grade SK-15 or higher who were involved in the misconduct." The court rejects plaintiff's argument that "these employees 'ha[ve] no attendant claim to privacy with respect to [their] conduct' because they knew their conduct was wrong at the time." Citing the Supreme Court's decision in U.S. Department of Air Force v. Rose, the court observes that "individuals involved in disciplinary matters possess a privacy interest in controlling the dissemination of their disciplinary records and identifying information." Further, the court finds that "disclosure in this case is not limited to the reputational embarrassment of having misused government property on official time but rather extends to the embarrassment resulting from public knowledge that the conduct was of a sexual nature." The court recognizes that the privacy interests involved "might weigh less" if the "public disclosure had been a relatively innocuous report that SEC employees had been found spending hours searching the Internet." However, given that the "public was informed that employees were found to have spent hours at work viewing sexually explicit sites" disclosure would "reflect[] on the employee's sexual needs and/or desires" and, as one employee testified, could be the source of "'severe personal and professional harm including embarrassment and disgrace.'" Accordingly, the court concludes that the privacy interests implicated are "overwhelming."

On the other hand, the court characterizes the public interests involved in releasing the employees' identities as "negligible, at best." As a general matter, the court notes that "[t]he SEC has already disclosed information sufficient to inform the public about the SEC's operations and activities related to the misconduct." In assessing the "weight accorded to the public interest in knowing the identity of individual federal employees," the court considers two factors: "(1) the activity for which the employee has been censured, and (2) the level of responsibility held by the employee." The court concludes that the first "factor weighs in favor of withholding the employees' names" because "the misconduct was not directly related to how the employees performed their official responsibilities, but rather, whether and when they performed them." Likewise, the court finds that the second factor weighs against disclosure since the supervisors at issue did not have "significant policy-making authority," supervised relatively few employees, and their conduct did not reflect on the "'attitude' of the SEC toward fulfillment of its duties and responsibilities."

The court also holds that Exemption 6 was properly asserted to withhold employees' job descriptions. Based on the SEC's and the intervenor's declarations, the court determines that "the risk of employees being identified by their job descriptions is not a mere possibility but is a palpable and substantial threat that may be accomplished with a simple Internet search" and, moreover, that "[t]his risk is present upon disclosure of the job description alone." Conversely, given that the "employees had little to no supervisory responsibilities or significant policy-making functions" and that "some of the information about their responsibilities has already been disclosed, the Court finds that the public interest in disclosure of the at-issue job descriptions is outweighed by the privacy interests of the employees." The court notes that "[t]he redacted reports and other information that the SEC has disclosed to date are sufficient to inform the public about the extent and the nature of the employees' misconduct as well as the SEC's response to the same."

Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.). Defendants properly asserted Exemption 6 to withhold "certain [non-public] personnel and medical files," because these materials are clearly protected "to the extent they were not already publically available in the course of the public bidding process." Additionally, the court observes that defendants' declaration "states that all of the material items Plaintiff asked for with regard to certain personnel (i.e. related to 'high ranking personnel') was provided."

Lardner v. DOJ, No. 09-5337, 2010 U.S. App. LEXIS 22557 (D.C. Cir. Oct. 28, 2010) (per curiam). The court holds that the district court, upon conducting the balancing test required by Exemption 6, properly concluded that the public interest in disclosing the names of unsuccessful clemency applicants outweighed their privacy interests. The court draws a distinction between the use of Exemption 6 to protect the pardon applications which contained "'non-public personal information about the applicants and their lives before and after their convictions,'" which the court held were properly withheld in connection with a previous case, and the list of names that the appellee seeks here. The court further notes that "appellant's confidentiality and stigma concerns are undermined by [the Office of the Pardon Attorney's (OPA's)] procedures whereby written advice to applicants states that OPA reserves the right to release information to neighbors and employers, among others, in the course of investigating an applicant's suitability for a pardon or commutation of sentence, and by OPA's regulations that advise applicants that certain information in their applications will be released when a third party inquires 'concerning a specific, named person.'" With respect to the public interest, the court concludes that "[t]he incremental value of the withheld information . . . is not speculative in view of the Inspector General's Report on whether impermissible considerations played a role in pardon determinations." Additionally, the court finds that Exemption 7(C) is inapplicable because "[t]he requested list of names prepared by the White House is designed to inform OPA of the President's determinations; it is not information compiled for law enforcement purposes coming from OPA's investigative records" and also notes that "[a]ppellant conceded . . . that the requested list of names exists independently of the investigative file of any applicant."

N.Y. Times, Co. v. U.S. Dep't of the Treasury, No. 09-10437, 2010 WL 4159601 (S.D.N.Y. Oct. 13, 2010) (Maas, Mag.). The court holds that the public interest in disclosure of the identities of individuals licensed by OFAC outweighs their minimal privacy interests. The court finds that although, as Treasury argues, "[i]t certainly is conceivable that disclosure of the individual licensees' identities could result in unwanted contact or harassment," "this alleged harm is entirely speculative" because "Treasury simply has not shown that the licensees face an imminent, or even a known, risk of harassment, nor has it shown that their physical safety is at issue." With respect to the "harm" articulated by Treasury that the licensees may be contacted by the public or the media, the court finds that "[t]he mere fact that someone might seek to interview a licensee does not mean [] that the individual would be subject to opprobrium or harassment." The court also notes that "the dangers of disclosure are further weakened by the lack of evidence that any of the corporate licensees – whose identities were released to the Times – have faced any negative consequences following that disclosure." In contrast to some cases where individuals have not sought an affiliation with a particular group, the court finds that, in this case, "to the extent that disclosure does expose the licensees to some possibility of harassment, the disclosed association is one that the licensees affirmatively and voluntarily chose." Additionally, "the fact that there more than 9,000 similarly-situated individuals reduces the risk of harm resulting from disclosure of the licensees' identities."

The court then balances the minimal privacy interest that it identified against the public interest in disclosure. Here, the court finds that the "names of the licensees are the direct product of agency decisionmaking," and, "[i]ndeed, [that] disclosure of the licensees' names is the only way for the public to account for OFAC's actions" because "many applications for OFAC licenses are considered on a case-by-case basis, [so] there seemingly is no metric that would allow the public to oversee OFAC's actions in this area other than to see the product of that decisionmaking." The court rejects Treasury's claim that the Times stated use, i.e., to "evaluate OFAC's decisions for any patterns that might provide insight into – and expose any possible deficiencies in – OFAC's decisionmaking by cross-referencing the names on the list with names of individuals available from other sources," demonstrates that it seeks "derivative" information about government performance that does not directly serve the public interest. Rather, the court finds that "the Times intends to use outside information to make sense of the list of names provided by Treasury." Citing the Eleventh Circuit's decision in News-Press v. DHS, the court notes that the Times' interest "is no more derivative than the use of mapping software to make sense of the addresses of individuals who received emergency benefits from the government." The court finds that, contrary to Treasury's assertion, "the limited public interest that the Times has identified is sufficient to justify the release of the names."

Brown v. DOJ, No. 10-247, 2010 U.S. Dist. LEXIS 107589 (D.D.C. Oct. 7, 2010) (Huvelle, J.). As a preliminary matter, the court notes that the FBI's refusal to process plaintiff's request pursuant to Exemptions 6 and 7(C) "constitutes a 'Glomar' response." Given that any responsive records pertaining to the third party would be contained in a criminal investigative file, the court finds that the individual "has a strong privacy interest in keeping his possible involvement with the FBI generally, as well as the information possibly contained in the documents specifically requested by plaintiff, private." Furthermore, "confirmation of the existence of records concerning [the third party] in the FBI's files, even if the FBI did not release them, would constitute an unwarranted violation of his privacy." Additionally, the court determines that plaintiff failed "to articulate a public interest" in the disclosure of the records where "there is no indication that responsive documents would reveal government wrongdoing" and where "plaintiff's personal interest [] in obtaining potentially exculpatory documents in order to attack his conviction 'does not count in the calculation of public interest.'" Since it was unable to identify any qualifying public interest, "the Court finds that the FBI's Glomar response to plaintiff's request, declining to process his claim for documents concerning a third party, is appropriate."

Gray v. U.S. Army Crim. Investigation Command, No. 09-1310, 2010 WL 3833937 (D.D.C. Sept. 30, 2010) (Sullivan, J.). Exemptions 6 & 7(C). "In light of the failure by defendants to sufficiently demonstrate non-segregablity, and in light of defendants' own assertion that it is not relying on these exemptions for withholding of the entire file [once Exemption 7(A) no longer applies], the Court concludes that these exemptions cannot be properly applied at this time."

Budik v. Dep't of the Army, No. 09-1518, 2010 WL 3833828 (D.D.C. Sept. 30, 2010) (Kollar-Kotelly, J.). The court determines that the Army's withholding of an email address was proper in light of the fact that "Plaintiff has pointed to no public interest in disclosing the e-mail address, and the Court concludes there is no such interest sufficient to outweigh the privacy interest involved."

Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). With respect to certain records pertaining to the potential discipline of an employee for which the SEC invoked Exemption 6, the court concludes that balancing the privacy interests against the public interests "cannot be properly conducted based upon the vague assertions provided by the defendant, as greater detail concerning the content of each record is needed to determine whether that information is exempted from disclosure." The court notes that "[t]his particularized examination is required because Exemption 6 is not one of the exemptions that inherently shields records in their entirety, and information that does not pertain just to any individuals involved in an investigation, but rather to the logistics of an investigation (such as routing numbers, dates, stock types involved, and event dates), which defendant acknowledges is included in these records, is not protected from disclosure." Although the court acknowledges that "the names of the individuals involved in the investigations, as well as their contact information may be withheld for privacy reasons," it concludes that "[u]pon the representations currently before the Court, . . . redacted versions of the records [i.e., versions with the personally identifying information excised] must be disclosed."

Gerstein v. CIA, et al., No. 06-4643, 2010 U.S. Dist. LEXIS 97766 (N.D. Cal. Sept. 17, 2010) (Chesney, J.). The court finds that although OPR's supplemental declarations "is sufficient to show that government employees were the subject of OPR's investigation and that the employees ultimately were sanctioned or disciplined; OPR's submission remains deficient, however, as to the 'nature of the position' held by such employees.'" As such, the court concludes that the information provided by OPR is not sufficient "to enable the Court to balance [the] individuals' privacy interest against the public interest" and, accordingly, provides OPR with another opportunity to submit more detailed declarations on the issue.

W. Watersheds Proj. & Wildearth Guardians v. BLM, et al., No. 09-482, 2010 U.S. Dist. LEXIS 95379 (D. Id. Sept. 13, 2010) (Dale, J.). As an initial matter, the court holds that records pertaining to two categories of permittees, i.e., "entities listed under a personal name along with the words 'Ranch' or 'Farm' plus some additional legal designation such as Inc., Corp., Co., or LLP" and those who "hold[] a permit under a personal name or in the individual's name plus the word 'Ranch' or 'Farm' without a public designator," constitute "similar files" under Exemption 6. The court finds that the two categories of permittees have a "minimal" privacy interest in the disclosure of their names and/or addresses. With respect to the public interests involved, the court determines that release of "the requested information would allow the public to better understand the scope of the BLM's grazing program." Applying the privacy and public interest balancing test, the court concludes that the "public interest in monitoring the BLM's rangeland program outweighs the minimal privacy interests held by both [] categor[ies] [of] permittees."

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.) With respect to the FBI's withholdings pursuant to Exemption 6, the court finds that privacy interests of persons mentioned in 1974 memoranda, which voices the concerns of a retired admiral regarding a film that is critical of the military, "is significantly diminished due to the passage of time, as well as the lack of contact information regarding these individuals." The court also notes that "many of these people thrust themselves into the public arena." Further, the court concludes that there is an overriding public interest in disclosure because the names will shed light on the FBI's investigations into "so-called unpatriotic works of art and charges of communism." Employing a similar rationale, the court orders the disclosure of the identity of individual for whom the FBI requested Reagan's assistance in "distanc[ing] himself from the son of a known figure in organized crime," as well as "the identity of the individual possessing blank United States commissions who may have provided a commission to Reagan." The court concludes that "privacy interest of the target of a 1944 investigation is essentially non-existent because the statute of limitations for the fraud charge has long passed" and that "this information will shed light on how the FBI conducted its operations with respect to people with whom the agency associated, namely Reagan." Lastly, the court finds that "the identity of the employees that investigated allegations regarding homosexuals in Reagan's staff must also be disclosed because the identities will help the public understand the extent of agency wrongdoing, if any, associated with preparing documents for Reagan that were 'not a matter within the investigative jurisdiction of the FBI.'"

Holt v. DOJ, No. 09-1515, 2010 WL 3386016 (D.D.C. Aug. 26, 2010) (Walton, J.). The court finds that defendants properly withheld identifying information related to federal, state and local law enforcement officers and support staff, where disclosure would create a risk of hostility or harassment. The court notes that redaction of such information "under circumstances similar to those described here has routinely been upheld." Similarly, the court finds that, for individuals merely mentioned in law enforcement records, "Exemption 7(C) recognizes that the stigma of being associated with any law enforcement investigation affords broad privacy rights to those who are connected in any way with such an investigation unless a significant public interest exists for disclosure" and it further notes that here there is no countervailing public interest in disclosure. Because the court analyzed the withheld information under Exemption 7(C), it declines to "determine whether this same information properly has been withheld under Exemption 6."

Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). Pursuant to Exemption 6, DEA properly withheld the names of DEA personnel identified in a letter sent by OPR to plaintiff pursuant to Exemption 6. The court comments that although DEA did not sufficiently demonstrate that this letter qualified under the threshold of Exemption 7, it "certainly meets its threshold obligation under Exemption 6, as the information at issue applies to particular individuals." The court finds that "any personal interest the plaintiff may have in the identities of the DEA Special Agents referenced in the letter from OPR does not qualify as a public interest favoring disclosure, and 'it is well established that an individual's personal interest in challenging his criminal conviction is not a public interest under FOIA because it reveals little or nothing about an agency's own conduct.'" Additionally, the court notes that "the so-called evidence on which [plaintiff] relies to establish agency misconduct hardly leads a reasonable person to conclude that the DEA and its agents acted improperly."

Richardson v. DOJ, No. 09-1916, 2010 WL 3191796 (D.D.C. Aug. 13, 2010) (Huvelle, J.). The court finds that EOUSA properly withheld medical records of a third party pursuant to Exemption 6 where there is no "dispute that this [individual] has a recognized privacy interest in avoiding disclosure of personal information." Moreover, the court rejects plaintiff's "proposed concession" that EOUSA redact personally identifying information, but release information about "the discription [sic] of the wounds" of the third party.

Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.). The court finds that the public interest in disclosure outweighs any privacy interests with respect to "three video recordings of targets of an agency investigation that were created by those targets and obtained during the investigation." The court observes that the privacy interests of the two targets of the investigation in these particular records are "quite attenuated," because "[u]nlike surveillance tapes that capture a person's image without their consent, the videos at issue here were created by [the two individuals] expressly for distribution to the public" "for later use on television or a music video." The court rejects defendants' argument that the subjects' "privacy interests are substantial because the release of the videos could reasonably be expected to lead to embarrassment or harassment." Rather, the court concludes that any privacy interest in the videos is "minimal" and notes that "[t]o the extent that Defendants seek to protect [these individuals] from opprobrium based on their unlawful conduct, such an invasion of privacy is not necessarily unwarranted." The court also dismisses defendants' assertion that portions of the videos showing the interior of the family home of one of the targets would represent an unwarranted invasion of the privacy of family members. The court comments that "Defendants have produced no evidence that the family members (who do not appear in the videos) objected to this footage," expresses that the family members were "presumably aware" of the purpose for which the videos were being recorded, and notes that the contents of one of the videos appeared on national television.

In terms of the public interest, the court finds that "unlike criminal rap sheets and other personal data that happens to be warehoused by the government, . . . the videos in question were gathered by Defendants in the course of investigating federal crimes and were relied on by the government in making the decision to charge [the two individuals] with violations of federal law" and "[t]herefore, the videos will assist the public in learning 'what the Government is up to' with respect to prosecutions for Lacey Act violations." In response to defendants' assertion that the release of the videos will not shed light on their own agencies' conduct, the court states that "the public interest in disclosure under FOIA is not limited to the agency processing the request for records; the public has a right to know what their 'government' is up to, not just what a particular agency is up to."

With respect to images allegedly depicting the individuals, the court determines that although the public interests involved are same as those implicated by the videos, the privacy interests "are quite different," because "there is no similar evidence in the record that establishes that the photographs at issue were ever intended to be distributed publicly." The court rejects plaintiff's contention that the targets of the investigation have diminished privacy interests in the photographs because similar images exist in the public domain, finding that "[a]lthough [they] have a lesser privacy interest in photographs that they voluntarily took, . . . the public interest in showing their faces does not outweigh their privacy interests in protecting their own images." Regarding investigatory records containing redacted names, the court finds that the targets of the investigation "had no involvement in their creation, and it certainly cannot be said that they waived any privacy rights in those records." Accordingly, the court holds that defendants properly withheld the photographs and the redacted investigatory documents.

Showing Animals Respect & Kindness v. Dep't of the Interior, No. 09-877, 2010 WL 3191801 (D.D.C. Aug. 12, 2010) (Kollar-Kotelly, J.). Defendants properly invoked Exemptions 3, 6 and 7(C) to protect a Presentence Investigation Report prepared by the judge who sentenced the two third parties. The court concludes that the defendants are justified in withholding the report under Exemption 3 pursuant to Federal Rule of Criminal Procedure 32(c)(3)(A) and 18 U.S.C. § 4208(c) to the extent that it reveals "confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties." Additionally, the court determines that use of Exemptions 6 and 7(C) were appropriate because the privacy interest involved is "substantial" and, conversely, that "there is not a significant public interest in disclosure."

Wilson v. DOT, No. 09-1748, 2010 WL 3184300 (D.D.C. Aug. 11, 2010) (Collyer, J.). The court concludes that FHWA properly asserted Exemption 6 to protect the identities of EEO complainants "[b]ecause EEO charges often involve matters of a sensitive nature, an EEO complainant has a significant privacy interest" and that "the public interest in disclosure [of that person's name] is 'not substantial.'"

Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). After conducting the relevant privacy and public interest analysis, the court finds that, pursuant to Exemptions 6 and 7(C), the CIA properly withheld "the names and email addresses of DOD personnel below the office-director level, or officers below the rank of Colonel; the names of OLC line attorneys, persons interviewed by the CIA OIG, and one detainee; and personally identifying information such as dates of birth, social security numbers, and biographical information."

Williams & Connolly LLP v. SEC, No. 09-651, 2010 WL 3025030 (D.D.C. Aug. 4, 2010) (Kollar-Kotelly, J.). Exemption 6/segregability: The court finds that "[a]lthough it is certainly plausible that a two-page settlement proposal based on personal financial information may be meaningless with the personal information redacted (as the SEC argues in its briefs), the declarations provided by the agency do not show with reasonable specificity that the nonexempt information in [the] document . . . is inextricably intertwined with exempt portions." The court orders to the SEC either to produce the document in question in redacted form or provide further justifications for withholding it in full.

Covington v. McLeod, No. 09-5336, 2010 U.S. App. LEXIS 14871 (D.C. Cir. July 16, 2010) (Per curiam). The court grants defendant's motion for summary affirmance on the basis that the agency properly withheld grand jury material in its entirety pursuant to Exemption 3, and a co-defendant's proffer statement under Exemption 6. The court finds that plaintiff has "failed to demonstrate that the contents of either [sets of documents] are in 'the public domain' and therefore are no longer secret . . . or that the public interest in disclosure outweighs the privacy interests involved."

Int'l Counsel Bureau v. DOD, No. 08-1063, 2010 WL 2724201 (D.D.C. July 12, 2010) (Bates, J.). The court rejects DOD's assertion that disclosure of photographs of detainees "'would risk both [their] safety upon release, through reprisals, and would undermine their likely willingness to cooperate with the intelligence collection activities.'" Instead, the court concludes that "[t]he Department's concerns about the detainees' safety and intelligence value . . . have little to do with privacy." The court further comments that "the government has already released a substantial amount of information about these detainees, including, among other things, their names, the names of their families and friends, and their employment histories." Conversely, the court finds unavailing DOD's argument that there is no public interest in the photos, noting that "[t]he press has taken a substantial interest in the Guantanamo Bay detainees, and has reported extensively on them and their condition." The court grants plaintiff's motion for summary judgment with respect to these photographs "[b]ecause there is only a slight privacy interest in withholding [them] from public view, and because the public has a substantial interest in their disclosure."

Meza v. DOJ, No. 09-1580, 2010 WL 2572613 (D.D.C. June 25, 2010) (Kollar-Kotelly, J.). EOUSA properly asserted Exemption 7(C) to withhold identifying information of third parties "inasmuch as such information contained in law enforcement files is 'categorically exempt' from disclosure under this exemption in the absence of a showing that an overriding public interest warrants disclosure." The court notes that Coast Guard redacted identifying information pursuant to Exemptions 6 and 7(C) from the personal records provided to plaintiff, and which were not challenged.

Kalwasinski v. BOP, No. 08-9593, 2010 WL 2541159 (S.D.N.Y. June 23, 2010) (Crotty, J.) (adopting magistrate's recommendation). The court adopts the magistrate's findings that "prospective visitors had a privacy interest in the information that [BOP] withheld" and that any public interest in the release of the information was "minimal."

Tamayo v. DOJ, 07-21299 (S.D.Fla. June 18, 2010) (Jordan, J.). The court holds that the Navy properly withheld personally identifying information pursuant to Exemption 6. As with its analysis of the withholdings under Exemption 7(C), the court finds that all of the third parties mentioned in the records "have a protected privacy interest" and that any public interest in disclosure is "minimal." The court rejects plaintiffs argument that they "do not need to submit any evidence" to show government negligence or malfeasance since the individual "is a 'responsible official' and his guilty plea indicates 'government impropriety.'" Instead, the court finds that the official's "guilty plea does not show that the FBI's investigation of his conduct or the DOJ prosecution was improper" and "plaintiffs do not allege (or set forth evidence) that [his] illegal conduct was taken in his capacity as a government official, or in furtherance of agency action, and therefore his guilty plea is not evidence that the Navy took any improper actions."

Am. Fed'n of Gov't Employees, Local 812 v. Broad. Bd. of Governors, No. 09-1191, 2010 WL 1976747 (D.D.C. May 18, 2010) (Huvelle, J.). No challenge was raised to defendant's use of this exemption to protect the identity of a third party. Defendant has asserted that there is no public interest in release of this information.

Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.). Defendant CIA has now explained the basis for its use of this exemption. "[M]uch of what the CIA withheld was personal data like social security numbers, dates and locations of birth, tax information, addresses, and phone numbers. . . . [T]he consequences to flow from . . . release could be damaging."

Gov't Accountability Project v. U.S. Dep't of State, No. 08-1295, 2010 WL 1222156 (D.D.C. Mar. 29, 2010) (Leon, J.). Defendant properly withheld "personal email addresses of several individuals, the names and curriculum vitae of individuals who were considered for the FF board but were ultimately not selected, and any purely personal information contained in the curriculum vitae of the successful applicants for the board." In this case, "the private individuals mentioned in these records have a clear privacy interest in avoiding the disclosure of their personal email address. . . . Furthermore, releasing their email addresses serves no public interest because these email addresses would not reveal 'what the government is up to.'"

Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E): The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.

ACLU v. DOJ, No. 08-1157, 2010 WL 1140868 (D.D.C. Mar. 26, 2010) (Robertson, J.). Plaintiff seeks the case names and docket numbers of cases "in which courts granted applications to obtain cell phone location data without probable cause determinations." The court "allocate[s] a greater privacy interest to persons who were acquitted, or whose cases were dismissed or sealed (and remain under seal), and a considerably lesser privacy interest to persons who were convicted, or who entered public guilty pleas." Plaintiff asserts that there is a public interest in release of this information because it will explain "'to what extent and to what end the government is engaged in cell phone tracking, to what extent these surveillance activities lead to prosecutions, and to what extent these prosecutions are successful.'" However, plaintiff "provides only a meager explanation of just how the release of case names and docket numbers will advance that interest."

In the court's view, the ACLU's interest is in "find[ing] and pursu[ing] the juiciest cases - the ones that would best illustrate the Fourth Amendment argument the ACLU is apparently developing. The easier it becomes to pursue such follow-up investigations, however, the more likely it is that unwarranted invasions of personal privacy will occur." The court finds that the public interest in release outweighs the privacy interests at stake as to those defendants who have been convicted or who entered guilty pleas, but that the privacy interests of defendants who have been acquitted or whose cases have been and remain sealed outweighs the public interest in release of case names and docket numbers. As to docket numbers from applications for cases yet to be prosecuted, ACLU concedes that the names of unprosecuted targets are exempt. Given the fact that after such names are redacted, nothing would be left but "in re" lines, the court "will not order the government to make such a meaningless production." As to docket numbers for cases subject to seal, disclosure "could reveal surveillance targets yet to be prosecuted," thus the redactions are appropriate.

Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). The court finds that defendant improperly withheld the "'date vaccine administered' and vaccine type" fields. The Vaccine Act, upon which defendant relies for its conclusion that such information should be withheld in order to protect the privacy of the vaccine recipients, specifically contemplates the release of this information. "[T]he Court finds no basis for defendant's decision to withhold vaccine date and type from disclosure under Exemption 6."

Defendant did not adequately explain its decision to withhold phone and fax numbers and email addresses of attorneys who appeared in the cases listed in the CASES index, but will be given an opportunity to supplement its original filings on this issue.

Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). Exemptions 2 & 6. Defendant has not provided the court with enough information to justify its withholding of information describing structured settlements. This information includes number of payments, amount received, dates that checks were written, and beneficiary name. "Defendant's declarations contain no details; they do not explain how or why these records are internal, nor do they explain the kind of cases to which the records are connected." Defendant will be given an opportunity to supplement its filings on this issue.

Similarly, defendant did not adequately justify its decision to withhold alien registration numbers or "non-employee identification numbers 'assigned by the government to identify private individuals.'" Defendant offers no details on "how disclosure could lead to identity theft." The court agrees with plaintiff that defendant "failed to specify the privacy interest" for most of the withheld numbers, nor has it demonstrated to the court that it could not segregate out releaseable from protected information. Defendant will be given an opportunity to supplement its filings on this issue.

Span v. DOJ, No. 08-2183, 2010 WL 1007858 (D.D.C. Mar. 22, 2010) (Kennedy, J.). Exemptions 6 & 7(C). "[T]he application of these exemptions [to withhold information about third parties] appears justified on their face." Plaintiff claims that the withheld information is already in the public domain, but he "has not '"point[ed] to specific information in the public domain that appears to duplicate that being withheld,''' as the law requires him to do before a court can find that the exemption has been waived by the public domain doctrine.

Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539 (D.D.C. Mar. 18, 2010) (Kollar-Kotelly, J.). USAID properly redacted the home phone numbers of its employees as well as the identities of USAID employees not connected to plaintiff's requests. In both cases, there are legitimate privacy interests at stake, and little or no public interest in disclosure.

Schwaner v. Dep't of the Army, No. 09-0476, 2010 WL 938802 (D.D.C. Mar. 17, 2010) (Sullivan, J.). "Even if plaintiff had exhausted his administrative remedies prior to filing this action, the Court concludes that defendant would have prevailed" on its use of Exemption 6. The court notes that in November 2001 DOD began withholding the names of its personnel. Although neither DOD's policy memo nor its supporting declaration "directly address the personal privacy interests of enlisted military personnel," the court finds that "[i]t is easy to conclude . . . that [enlisted] personnel, like any individuals, have a recognized privacy interest in avoiding disclosure of personal information." Indeed, this court has previously recognized the privacy interests of military personnel. By contrast, plaintiff has not shown any public interest in release of this information.

Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). The court finds that the IRS failed to provide a sufficiently detailed description of the documents that were withheld under this exemption for the court "to meaningfully review the applicability of this exemption." Indeed, "the ambiguity in the type of documents withheld and the information contained therein makes it impossible to determine whether the individuals named in the documents have a viable privacy interest." The IRS's "broad, conclusory descriptions of the documents afford [plaintiff] no opportunity to challenge the withholding and offer this court no opportunity to meaningfully review the applicability of the claimed exemptions."

Long v. OPM, No. 05-1522, 2010 WL 681321 (N.D.N.Y. Feb. 23, 2010) (Mordue, C.J.). The court finds that "[i]n view of the potential for harassment or attack," OPM has demonstrated that federal employees who work in nineteen different "sensitive" occupations (including, inter alia, correctional officer, U.S. Marshal, nuclear materials courier, internal revenue agent, game law enforcement, immigration inspection, customs and border interdiction, and border protection) "have a 'more than de minimis' privacy interest in their names and duty stations." The court further determines that OPM is correct "that any link between the names of employees in the occupations at issue and the function of the government agencies they work for is too attenuated to warrant disclosure. . . . In this case, the names themselves would reveal only the identities of all employees in 'sensitive' occupations; once the lists of names are public, it would take further investigation and analysis before plaintiffs, or anyone else, could glean anything useful about the agencies for which they work."

However, as to plaintiffs' request for duty stations and organizational component codes of these individuals, "OPM only asserts that disclosure of duty station and organizational component code would increase the 'possibility' in some instances [that identities would be revealed]. OPM, however, does not explain how employees could be identified from the disclosure of their duty stations and organizational component codes. . . . The Court finds that this information does not involve a measurable privacy interest because it is not the kind of information 'that a person would ordinarily not wish to make known about himself or herself.'" Though OPM has also asserted that release of this information might hamper law enforcement operations by revealing the government's allocation of resources, this is not a basis for withholding of this information under Exemption 6.

As to OPM's decision to redact performance and individual cash awards made to IRS employees, "[i]t is undisputed that each total award amount, or lack thereof, is linked to an individual IRS employee and his or her employment performance, and could, as [plaintiffs] admit[], at the very least, reveal that an employee's appraisal score was too low to merit an award. . . . That an employee's name is not connected to the award amount is inconsequential here because the award, or absence of one, is linked directly, and unique[ly] to that employee. Award information is private and disclosure implicates more than a de minimis privacy interest." Plaintiffs have asserted a public interest in "'being able to see whom the government is rewarding' and ensuring that the IRS is complying with regulations prohibiting it from 'using records of tax enforcement results to evaluate employees or impose production quotas or goals.' Plaintiffs, however, provide no evidence of IRS wrongdoing or the issuance of improper rewards. On balance, therefore, the Court concludes that employees' interest in keeping performance based awards, or the lack thereof, private outweighs any public interest in disclosure of this information."

Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). The court finds that OPR's Vaughn index does not provide sufficient information about the "third-party individuals" about whom information was withheld for the court to make a judgment about the appropriateness of OPR's withholdings. In particular, "to the extent that any such 'third-party individual' may be a government employee, OPR's Vaughn Index lacks the detail required to enable the Court to balance the public interest against such individual's privacy interest." OPR will be given the chance to provide more detailed submissions.

Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 595 F. 3d 949 (9th Cir. 2010) (Hawkins, J.). The court affirms the lower court ruling that the public interest in disclosure of the names of agents of the telecommunications carriers who communicated with the government in connection with proposed amendments to the surveillance law outweighed any privacy interest. The court finds that "the few cases considering a private party attempting to influence government policy typically find in favor of disclosure, lacking countervailing concerns not present in this case." Furthermore, "[t]here is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence. . . . With knowledge of the lobbyists' identities, the public will be able to determine how the Executive Branch used advice from particular individuals and corporations in reaching its own policy decisions." The court also finds that this public interest is not outweighed by any privacy interests the lobbyists may possess. "[G]overnment acknowledgment of a lobbyist's lobbying activities does not reveal 'sensitive personal information' about the individual rising to a 'clearly unwarranted invasion of personal privacy.' . . . Unlike situations in which private citizens find themselves in a large government database because of conduct unrelated to the inquiry underlying the FOIA action, when '[t]he applicant is petitioning the government for the performance of a public act; this is not a situation where he is a third-party who finds himself in government records through no action of his own.'" However, "we find no corresponding interest as to the carriers' agents' email addresses. Yet we can easily envision possible privacy invasions resulting from public disclosure of the email addresses." As a result, this portion of the district court's ruling is overturned, and the agents' email addresses are protected from disclosure unless they are the only way to identify the agent in question.

Coleman v. Lappin, No. 06-2255, 2010 WL 299489 (D.D.C. Jan. 27, 2010) (Collyer, J.). BOP properly asserted this exemption to withhold social security numbers and birth dates of BOP staff members. There is "no public interest in disclosure to outweigh the individuals' privacy interests."

Miller v. DOJ, No. 09-1393, 2010 WL 114955 (D.D.C. Jan. 11, 2010) (Leon, J.). FBI properly asserted these exemptions to withhold the names of FBI support personnel and local law enforcement personnel. "These exemptions appear to be justified and are not disputed by the plaintiff."

Physicians for Human Rights v. DOD, No. 08-273, 2009 WL 5125893 (D.D.C. Dec. 30, 2009) (Bennett, J.). DOD properly redacted names of individuals pursuant to Exemption 6. The court finds that plaintiff did not assert "any public benefit that would result from the discovery of [the withheld] names; nor [was the court] able to divine any meaningful public interest in obtaining 'information about private citizens that is accumulated in various governmental files but that reveals nothing about the agency's own conduct.'"

Yonemoto v. VA, No. 06-0378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009) (Kurren, Mag.). VA’s use of Exemption 6 to withhold certain e-mail communications between employees was appropriate. As an initial matter, the court concludes that the employee e-mails qualify as medical or "similar files" for the purposes of Exemption 6. Second, the court rejects plaintiff’s argument that “the authors of the emails have no privacy interest in the communications because they used government computers when drafting them.” The court reasons that "even if the authors have no expectation of privacy for Fourth Amendment purposes, they ‘do have a personal privacy interest in the thoughts and beliefs contained in their communications.’" The court is unable to identify a corresponding public interest sufficient to outweigh the privacy concerns reflected in the records. Plaintiff’s stated public interests, i.e., "that the public has an interest in knowing whether VA officials misuse government property or violate VA policies when they 'disparage employees such as himself' through the use of email," were not borne out by the court’s in camera inspection of the records.

Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.). The Air Force properly withheld "personal information including signatures, personal phone numbers, personal e-mail addresses, and government e-mail addresses" on certain documents, because plaintiff waived his request for such information. The court also notes that notwithstanding plaintiff's waiver "such information was properly redacted under (b)(6) to avoid an unwarranted intrusion of personal privacy."

Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). The IRS properly withheld the direct phone number of one of its employees as well as "the personal phone number of a third party who is unrelated to this action. . . . Because disclosure of this private information will tell the public nothing about 'what their government is up to,' . . . the public has no relevant interest in disclosure of these documents. The privacy interests at stake certainly prevail in this situation." Plaintiff has not opposed these withholdings.

Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2009 U.S. Dist. LEXIS 109303 (D.D.C. Nov. 23, 2009) (Leon, J.). Defendant properly withheld names and identifying information of State Department and Border Patrol employees and private individuals "who provided information to the committee in their personal capacity." The State Department properly balanced the privacy interests of these individuals against the public interest in disclosure, particularly "in light of instances of career State Department employees being 'denounced in harsh personal accusations in public fora.'"

Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). The court finds that the CIA has not justified its use of this exemption to withhold names and identifying information of its employees. "The D.C. Circuit [has] held that the disclosure of biographical information does not necessarily invade an individual's privacy and that summary judgment was inappropriate where the agency 'failed to explain the extent of the privacy interest or the consequences that may ensue from disclosure.'" Defendant must either disclose this information or provide additional justification for withholding it.

United Am. Fin., Inc. v. Potter, No. 06-1023, 2009 WL 3583567 (D.D.C. Nov. 3, 2009) (Bates, J.). Defendant properly redacted the name and phone number of a private individual that appeared on a responsive document. Release of this information "would be a 'clearly unwarranted invasion of personal privacy.'"

Moore v. Nat'l DNA Index System, No. 06-362, 2009 WL 3259065 (D.D.C. Oct. 13, 2009) (Sullivan, J.). Plaintiff has requested DNA records identified by a specific ID number, but cannot establish that these records pertain to him. "Thus, the defendants are not at liberty when responding to [plaintiff's] FOIA request to disclose the specific records he requested, but which they cannot verify do not belong to someone else."

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). Defendant properly applied these exemptions to protect the identities of non-government employees, law enforcement personnel, and low level government employees who were not the subject of any investigation. Plaintiff's "argument that the alleged illegal activity giving rise to the FBI interview weighs in favor of disclosure is unpersuasive primarily for the reason advanced by DOJ - law enforcement records will almost by definition be generated as a result of illegal or possibly illegal activity. Indeed, protecting individuals against the stigma of being mentioned in the context of a law enforcement investigation is the precise purpose of Exemption 7(C). CREW points to no evidence that disclosure of the personal information contained in the records would shed light on illegal activity by DOJ or White House officials."

James v. DEA, No. 08-0842, 2009 WL 3088802 (D.D.C. Sept. 28, 2009) (Urbina, J.). DEA properly withheld the curriculum vitae of a lab analyst it consulted in connection with plaintiff's criminal case. This record "is a personnel record and is not relevant to the information the plaintiff seeks."

Electronic Frontier Foundation v. ODNI, No. 08-1023, 2009 WL 3061975 (N.D. Cal. Sept. 24, 2009) (White, J.). While the court finds "some, although not substantial, privacy interest in the withheld documents indicating the identities of private individuals and entities who communicated with ODNI and DOJ in connection with FISA amendments," it ultimately concludes that "the public interest in an informed citizenry weighs in favor of disclosure."

Roth v. DOJ, No. 08-822, 2009 WL 3019781 (D.D.C. Sept. 23, 2009) (Huvelle, J.). The FBI properly withheld names and identifying information of third parties mentioned in the records pursuant to Exemptions 6 and 7(C) in light of the "significant" privacy interests involved. In terms of the public interest, plaintiff did not present "sufficient evidence for the Court to question the FBI's performance of its duties" where plaintiff's attorney alleged that "25 years ago the FBI failed to produce what he [and his client] now believe is exculpatory material, based on evidence they have developed since the trial." With respect to certain surveillance photos, the court orders the FBI to release the images if the copies reviewed in camera "are in fact accurate reflections of the photographs as they exist in the FBI's files" given that it was "unable to discern any identifying information" in the copies and therefore "no privacy interest is protected by withholding them." However, the court adds that the FBI could continue to withhold those photos "if the lack of identifying details in the copies of the photographs" was due to poor photocopying and "the actual photographs . . . contain such information."

Abou-Hussein v. Gates, No. 08-783, 2009 WL 3078876 (D.D.C. Sept. 25, 2009) (Leon, J.). "[T]he Court concludes that the defendants are entitled to summary judgment because plaintiff has wholly failed to adduce any evidence raising a genuine dispute as to defendants' compliance with FOIA."

Del Rio v. Miami Field Office of the FBI, No. 08-21103, 2009 WL 2762698 (S.D. Fla. Aug. 27, 2009) (Moreno, C.J.) (adoption of magistrate's recommendation). The FBI properly redacted audiotapes it released to plaintiff in order to protect the privacy of third parties heard on the tape. "Persons involved in an FBI investigation, even if they are not the subject of the investigation, have 'a substantial privacy interest in seeing that their participation remains secret.'" By contrast, "[a] FOIA litigant’s private interest in obtaining materials for personal reasons plays no part in the required balancing of interests." Likewise, "an individual's desire for information to assist him/her in challenging his conviction " does not qualify as "a public interest under the FOIA."

Moore v. Obama, No. 09-5072, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009) (unpublished disposition) (per curiam). "Appellant fails to demonstrate that the Federal Bureau of Investigation improperly withheld the names and a phone number of its employees pursuant to FOIA Exemptions 6 and 7(C)."

Calvert v. United States, No. 08-1659, 2009 WL 2584766 (D.D.C. Aug. 24, 2009) (Urbina, J.). "The recognized privacy interest of FBI agents . . . does not 'imply blanket exemption [.]' . . . To justify its exemption 6 claim, then, the defendant must show that the threat to [the agent's] privacy in his signature - assuming it to be an agency record - is real rather than speculative."

Nikelsberg v. FDIC, No. 08-1899, 2009 WL 2423470 (D.D.C. Aug. 6, 2009) (Robertson, J.). "Individual account holders have a privacy interest here because disclosure [of their names and contact information] would allow public scrutiny of their financial information." By contrast, "[p]laintiff's assertion that disclosing the requested contact information would in some way 'she[d] light on [the FDIC's] performance of its statutory duties' . . . seems to rely on the highly implausible suggestions that FDIC's roles as regulator, insurer and receiver are in conflict with one another, and that the agency makes its receivership determinations via a 'secret process.' But plaintiff makes no effort to explain how the requested names and contact information could possibly shed any light on his suggestions."

Lardner v. DOJ, No. 08-1398, 2009 WL 2341719 (D.D.C. July 31, 2009) (Kollar-Kotelly, J.). The court finds that unsuccessful applicants have a "minimal and limited" privacy interest in the release of their names. Plaintiff has not sought any additional information about the applicants or about the crimes for which they have been convicted. Instead, he has only requested the names of those who have applied for, and been denied, clemency. Because "only a very small minority of clemency applications are actually granted. . . . Rejection is therefore not 'so rare an occurrence as to stigmatize the [rejected] applicant.'" Thus, "the Court is not persuaded that . . . public disclosure of the President's decision to deny clemency will 'reflect poorly upon [an individual applicant's] current level of rehabilitation and good character.'" Furthermore, "clemency applicants have no reasonable expectation that [the Office of the Pardon Attorney (OPA)] will not publicly disclose either the existence of their clemency application or the President's eventual decision whether to grant or deny clemency." This is in keeping with "OPA's long-standing practice to freely disclose to any member of the public both that an individual has applied for clemency and that the President has denied the request for clemency whenever it receives an inquiry about an individual by name." In cases in which there is a "'substantial public interest,'" OPA may prepare a press release discussing a clemency denial. Applicants are well aware of these possibilities for disclosure, but most proceed with the applications anyway. The court "is not . . . persuaded" that "the recent nature of the clemency denials and the sheer number of applicants covered by Plaintiff's request in this case create a greater privacy interest than was held to exist [in the litigation over plaintiff's previous request]." The court's ruling in the first case was not in any way tied to the age of the files involved, and the volume of applicants at stake does not magnify a particular individual's privacy interest. OPA's reliance on Reporters Committee "is misplaced," as that case involved release of extensive information about individuals, whereas here, plaintiff has only sought "disclosure of the applicant's name and the fact that he applied for and was denied clemency." Furthermore, whereas in Reporters Committee the government had accumulated the records in question on its own initiative, here the withheld records are only in OPA's possession due to a voluntary act on the part of the clemency applicants. By contrast to the minimal privacy interests at stake, "the Court finds that disclosure of the names of unsuccessful clemency applicants directly serves the main 'purpose of the [FOIA] - the preservation of "the citizens' right to be informed about what their government is up to."'" Release of the names "shines a light on the most basic information about the executive's exercise of his pardon power - who is and who is not granted clemency by the President." The names of successful applicants are posted on DOJ's website, which "confirms the public's interest in opening up the clemency process and in ensuring that the exercise of the executive's clemency power is not veiled in a cloak of secrecy." The value of this information about successful applicants is enhanced by release of the names of unsuccessful applicants. Additionally, the court disagrees that release of applicant names "can never provide insight into the process by which OPA investigates and issues its recommendation to the President," a recommendation upon which the President has "'traditionally relied heavily.'" Finally, because a denial of clemency generates an "official record of the President's action," the records at issue here are not records that an agency "'happens to be storing.' Rather, the information requested is drawn from the reports of and reflects the official actions of a Government official. . . . This information serves as 'a record of "what the Government is up to,"' and thus falls squarely within FOIA's statutory purpose."

Prudential Locations LLC v. HUD, No. 09-00128, 2009 WL 2243780 (D. Haw. July 27, 2009) (Mollway, C.J.). HUD properly withheld the names and identifying information of individuals who alleged RESPA violations against plaintiff, as well as the name of one of plaintiff's agents who was involved in one of the allegedly illegal transactions. Plaintiff has indicated its intent to contact (and possibly sue) the individuals who made the allegations; "the individuals certainly have an interest in avoiding such an invasion of privacy." By contrast, "[t]he identities of the individuals filing complaints with HUD do not shed any light on the agency's activities." Furthermore, "there is no suggestion that the motives of the individuals involved affected the outcome of the HUD investigation or somehow biased the agency." Thus, "[t]here is no indication that the identity of the informant would reveal any misconduct by HUD. Nor do the disclosure requirements in FOIA turn on the accuracy of information given by private individuals."

Columbia Riverkeeper v. FERC, No. 08-936, 2009 WL 2244196 (D. Or. July 24, 2009) (Hubel, Mag. J.). Plaintiffs have established that defendant has previously posted on its website unredacted landowner lists similar to the one plaintiffs requested. Defendant failed to show any reason for its distinction between the list currently at issue and the ones it has posted, nor can it claim that the prior postings were inadvertent. Furthermore, given that the "list is of landowners in the path of a possible pipeline," and so the individuals on the list "took no action to get either on or off" it the court finds that prior Supreme Court rulings regarding addresses do not support withholding here. FERC has also not responded to the claim that it has already shared the list in question with a private entity, nor has it responded to plaintiffs' claim that the landowners would suffer "'very low personal consequences'" from release of their names and addresses. Plaintiffs have shown a public interest in release of the documents, namely whether FERC is fulfilling its obligation of notifying all landowners who might be affected by the proposed pipeline. Plaintiffs also submitted evidence that FERC has failed to notify at least some of those affected. FERC is ordered to produce the requested mailing list.

McGrady v. Mabus, No. 06-752, 2009 WL 2170141 (D.D.C. July 22, 2009) (Kessler, J.). Plaintiff has made clear that he does not seek to have personal identifiers included in the records he has requested. Defendants assert that personally identifying information will still be disclosed. "In the absence of any 'personal identifiers,' it is highly unlikely-if not impossible-that disclosure would threaten an individual's privacy interests. Defendants have not shown that a citizen would be able to use the redacted Master Brief Sheets to identify any particular individual described."

Knittel v. IRS, No. 07-1213, 2009 WL 2163619 (W.D. Tenn. July 20, 2009) (Breen, J.). "[T]he IRS has submitted no evidence regarding the alleged privacy interests. In fact, the Defendant has not provided this Court with any guidance as to the nature of the materials requested or their contents. Without knowing the general substance of the information for which disclosure is sought the Court is unable to assess the privacy interests at stake, and therefore is unable to conduct the requisite balancing test." Defendant "has not submitted a Vaughn index or any affidavits that specifically indicate its reasons for non-disclosure. Thus, it has failed to explain, through an evidentiary showing, its reasons for denial." Furthermore, defendant is incorrect in its assertion that it is only required to disclose information about employees specifically listed in 5 C.F.R. § 293.311(a)(1)-6), as the categories mentioned are clearly not intended to be exhaustive. "Thus, the Defendant is still required to submit sufficient proof to establish that disclosure of the other information requested by the Plaintiff would infringe an individual's privacy interest to the extent that the public interest in free disclosure should be considered subordinate."

Habeus Corpus Res. Ctr. v. DOJ, No. 08-2649, 2009 WL 1883724 (N.D. Cal. June 30, 2009) (Wilken, J.). DOJ properly used this exemption to withhold certain information concerning an attorney it hired, except for two instances where it is ordered to disclose the identities of recipients of e-mails.

Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). The district court erred in ordering the release of the names of eyewitnesses to the explosion, as well as of FBI agents. As to the former, though "concerns about connecting private individuals to criminal investigations are not present here . . . [t]he potential for unwanted contact by third parties, including the plaintiff, media entities, and commercial solicitors, nonetheless remains. The case law establishes that protection from such unwanted contact facilitated by disclosure of a connection to government operations and investigations is a cognizable privacy interest under Exemptions 6 and 7(C)." Though some witnesses have come forward and publicly identified themselves, "[i]t is presumably the[] heretofore silent witnesses whom [plaintiff] wishes to contact. [T]hese witnesses have by their silence indicated that contact is unwelcome." As to the FBI agents, "courts have recognized that agents retain an interest in keeping private their involvement in investigations of especially controversial events." Moreover, "lower level officials, like the FBI agents involved here, 'generally have a stronger interest in personal privacy than do senior officials.'" Thus, "[s]hould the names of the FBI agents mentioned in the requested documents be revealed, there is some likelihood that the agents would be subjected to unwanted contact by the media and others, including plaintiff, who are skeptical of the government's conclusion. Under the case law of this court and others, this potential is sufficient to establish a cognizable privacy interest." Furthermore, though "an investigator's privacy interest may be reduced when there are doubts about the integrity of his efforts . . . [t]here is no evidence here . . . that the particular FBI agents mentioned in the requested documents themselves behaved improperly, or that their individual efforts were unreliable." Plaintiff apparently wishes to contact these agents to inquire about possible impropriety by other agents, but "we cannot say that an FBI agent's privacy interests are reduced because of speculation that he may have information about general improper conduct by the FBI." By contrast to the important privacy interests at stake, there is little public interest in release of the eyewitness or agent names, in light of the fact that defendants released the substance of the eyewitness accounts and agents' views. "The only way that the identities of the eyewitnesses and FBI agents mentioned in the documents already released would have public value is if these individuals were contacted directly by the plaintiff or by the media. . . . [S]uch use is insufficient to override the witnesses' and agents' privacy interests, as the disclosure would bring about additional useful information only if direct contacts, furthering the privacy intrusion, are made."

Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.). Defendant has shown that its use of these exemptions to withhold information was proper.

Chesterfield Assocs., Inc. v. U.S. Coast Guard, No. 08-4674, 2009 WL 1406994 (E.D.N.Y. May 19, 2009) (Block, J.). Defendant properly withheld the names of its own employees and the contractor's employees who were involved in the bidding process. "[T]he Court perceives no principled basis for concluding that government employees involved in the bidding process for public contracts do not have the same privacy interest [as employees who conduct internal investigations] arising out of the same possibility of harassment or embarrassment." Moreover, "[plaintiff] has offered no evidence to support its assertion that the bidding process was somehow tainted. There is, therefore, no public interest warranting disclosure."

Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). Plaintiff's challenges to BOP's use of these exemptions "reflect a misunderstanding of the law, and his notion that the third person personal privacy exemptions apply only to government employees is incorrect. The personal privacy exemptions . . . require the agency to protect the privacy of any third person identified in the records, and the statute does not except spouses." Plaintiff has failed to identify any interest in release of this information beyond his own personal interest. Similarly, he has failed to make a showing of governmental wrongdoing sufficient to satisfy the Favish standard.

Updated: April 2012