WEEK OF SEPTEMBER 3-7

1.  Long v. OPM, No. 10-1600, 2012 WL 3831784 (2d Cir. Sept. 5, 2012) (Jacobs, C.J.)

Re:  Request for all records in defendant's central database; at issue is the withholding of the names and duty stations of federal employees at five "sensitive" federal agencies and employees across all federal agencies who are in twenty-four "sensitive" occupation categories

Holding:  The court affirms the withholding of all federal employee names at issue under Exemption 6 and reverses the district court ruling insofar as it ruled that duty-station information for certain sensitive occupations must be disclosed

• Exemption 6/Withholding of Names:  The Second Circuit upholds protection of the names of federal employees in five sensitive agencies and twenty-four sensitive occupations.  The panel rejects the plaintiffs' claim that "federal employees' interest in their names is '[m]inimal or [n]on-[e]xistent' and cannot outweigh the public interest in disclosure."  Rather the panel notes "[t]he analysis is context specific."  While "[n]ames and other identifying information do not always present a significant threat to an individual's privacy interest," "'[w]hether disclosure of a list of names is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.'"  Courts may "recognize a privacy interest in a federal employee's work status… if the occupation alone could subject the employee to harassment or attack."  Here the defendant's submissions "sufficiently demonstrate that, by and large, federal employees in the sensitive agencies and occupations face an increased risk of harassment or attack."

"Whether the public has an interest in the identity of federal workers… depends on… whether the information sought sheds light on government activity."  The court notes that "[i]n many contexts, federal courts have observed that disclosure of individual employee names tells nothing about 'what the government is up to.'"  The plaintiffs offer several ways in which they have used the "names of federal employees obtained from the [defendant] to inform themselves what their 'government is up to.'"  Each of the public interest rationales offered by the plaintiffs are rejected by the court because, "they do not illustrate how the disclosure of names serves the purposes of FOIA" or the described uses of the information are examples of derivative use of the information and "actually facilitate[] the invasion of the employee's personal privacy."  The Second Circuit concludes that "where public interest favoring disclosure is no more than minimal, a lesser privacy interest suffices to outweigh it." 

• Exemption 6/Withholding of Duty Stations:  The Second Circuit finds that "[a]lthough the issue is close, we conclude that OPM has demonstrated that employees possess a cognizable privacy interest in their duty station records de-linked from their names, and that it clearly outweighs any public interest that might be served by disclosure."  The plaintiffs argue that "federal employees have no privacy interest in their duty-station information once their names have been redacted."  The court disagrees stating, "[t]he records sought by plaintiffs are 'personal' in the sense that they are specific to individuals."  Even if "'the withheld records do not provide work addresses'" the "knowledge that an employee works for a particular agency or in a particular role, in a particular locality, is often enough to pinpoint the street address of the workplace."  The defendant asserts Exemption 6 to withhold duty station locations to "protect individuals' physical safety" because "[e]ven if an individual cannot be identified from the duty-station information, the risk of harm to that individual is not abated by anonymity."  The panel holds that "federal employees have a more than de minimis privacy interest in safeguarding the disclosure of their duty-station when a risk of such harm is present."

The Second Circuit finds "not serious" plaintiffs' "challenge [to] the withholding of information by category of employee, rather than record-by-record."  The panel notes that "[p]laintiffs seek millions upon millions of data elements" and finds that "FOIA does not require an agency to mobilize its full resources in compliance with FOIA requests."

The Second Circuit is also not persuaded by plaintiffs' argument that such information discloses "where the federal government deploys its personnel," noting "the number of federal employees here and there is a rough data point that imparts virtually nothing about the function of the federal government."  Additionally, the panel notes that the information is available from other sources.  Finally, the Second Circuit finds that "[h]eightened vigilance is appropriate in cases involving computerized databases" because the data "is vulnerable to analysis and manipulation by persons seeking to identify targets for violence, or to increase casualties."   

1. Elec. Frontier Found. v. DOJ, No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10,  2012) (Walton, J.)

Re:  Request for records concerning "discussions and negotiations between the United States and the European Union with respect to the international exchange of personal information for use by law enforcement authorities"

Holding:  Granting the defendant's motion for summary judgment on the withholdings, and granting the defendant's motion for summary judgment in part as to the segregability of the documents

• Exemption 5/Deliberative Process Privilege:  DOJ's Vaughn submissions establish that "the documents currently in dispute were only exchanged between agency officials within the Executive Branch."  "Because plaintiff has offered no contrary evidence rebutting the agency's Vaughn submissions, the Court concludes that the documents currently in dispute qualify as 'inter-agency or intra-agency' records within the meaning of … Exemption 5."

The court rejects plaintiff's assertion that the deliberative process privilege cannot apply because the requested documents represent United States-European Union High Level Contact Group's ("HLCG") final negotiating positions.  "[T]here is no indication that the agencies that participated in the HLCG negotiations… formally or expressly adopted the [HLCG's] negotiating positions in any publicly-available document or publication."  Additionally, because the negotiating positions reflected in the documents "related to the non-binding HLCG principles[,]" they are "not comparable to…internal memoranda…[described in another court opinion] as precedential guidance in discharging [an agency's] regulatory duties."  While the plaintiff argues that the "information lost its protected status because it was used by the [HLCG] team 'in its dealing with the public,'" the E.U. HLCG negotiators do not qualify as 'the public,' nor is there any indication that the withheld information was utilized by the agencies in their dealings with the public at large."  

The court finds that the factual material contained in the documents was properly protected because it consists of facts "'assembled through an exercise of judgment'" or consists of "views and reactions" of authors.  Further, the court finds that the briefing materials prepared for senior policy officials are both predecisional and deliberative in nature.  While the plaintiff contends that the "senior policy officials were not being called upon to make decisions," the court notes that the "[ultimate responsibility] for adopting the principles" from the negotiations fell to the senior officials.  The plaintiff "takes a restrictive view of the 'predecisional' requirement, one which would require the [defendant] to pinpoint a decision of the senior policy officials to which the briefing materials contributed.  "To satisfy the predecisional element, the agency need only 'identify[] the decisionmaking process' to which the withheld documents contributed."  Finally, while "the plaintiff may be correct that the briefing materials contain, among other things, summaries of the HLCG deliberations, the [defendant's] Vaughn submissions indicate that the summaries reveal the agency 'employees' deliberative process of selecting and presenting facts,' which required them to 'exercise [] their judgment by anticipating what information these officials would need."  "Because such material qualifies as deliberative, the plaintiff's challenge is meritless."

• Waiver:  The court is not persuaded by the plaintiff's argument that "'given the subject of the FOIA request at issue and the nature of the bilateral [HLCG] negotiations in general, it stands to reason that significant amounts of information contained within the records… were disclosed to [the] DOJ's EU counterparts during the course of negotiations."  "[I]t is the plaintiff, not the agency, who carries the burden of producing at least some evidence that the deliberative process privilege has been waived."  The plaintiff has not met this burden; rather, the plaintiff "offers only speculation that undisclosed information in email exchanges… 'likely represent the final position of the [HLCG] that was ultimately communicated to the EU negotiators.'" The court notes that "the documents currently in dispute were only exchanged between officials within the Executive Branch."

Segregability:  The court deems the defendant's submissions, detailing how "factual material in these documents is privileged because it is either 'inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations'…or 'reflects an "exercise of discretion and judgment calls'" sufficient to establish that this material is protected by the deliberative process privilege.   These materials contain the "views and reactions," "personal opinions about various topics, actions, and individuals," and "subjective impressions and recommendations regarding the HLCG deliberations" that cannot be "extricated neatly."  The court concludes that "the [defendant] has generally carried its burden showing the nonsegregability of its withholdings – save for one exception."  As to this one document, the defendant's declaration "does not give a detailed justification for why there was no segregable information in this particular document."  The defendant must "better explain its segregability efforts regarding this document."

2. Hetzler v. Record/Info. Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.)

Re:  Request for records pertaining to plaintiff's father

Holding:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D)

• Adequacy of search:  The court grants the defendants' motion for summary judgment on the adequacy of the search where the declaration "explains in detail the multiple searches conducted in order to locate" responsive documents, there is "no suggestion that the Defendants acted in bad faith in conducting the search," and plaintiff "has not challenged the adequacy of Defendant's search."

• Exemption 1:  After conducting an in camera review of the documents, the court notes that some of the documents contain information that "was declassified decades ago," while other portions remain classified.  However, "[t]hat a document has been declassified or unclassified does not necessarily preempt the government agency from asserting the national security exemption."   As to certain portions of the declassified documents, the "[t]he Court is not persuaded that [d]efendants have carried their burden of showing that disclosure of this information could cause serious damage to national security in light of" (1) the age of the documents; (2) the fact that the investigation has been closed for some time and the subject is deceased; and (3) the fact that the organization with which the subject is believed to have sympathized does not pose a current threat to the United States or its interests.  The defendant is ordered to re-process and re-release certain information related "to the FBI's findings and observations regarding [the subject of the request]."  The court grants summary judgment to the defendants with regard to the withholding of information that remains classified, including standard FBI terminology or phraseology, intelligence source information, and information pertaining to foreign relations or foreign activities.

• Exemption 2:  As the "[p]laintiff has 'stipulate[d] that she is not interested in file numbers or source symbols,'" summary judgment is granted as to "the [d]efendants' redaction of confidential source file numbers" and "permanent source symbol numbers of FBI sources" pursuant to Exemption 2.

• Exemption 6/7(C):  The court grants summary judgment to DOJ on many documents for which privacy protection was invoked.  As to certain withholdings, summary judgment was denied, however.  Plaintiff specified that she sought the name of clergy members mentioned in the documents.  Both the plaintiff and the defendant "independently… confirmed that [one clergy member] died in the 1970's" and one record was re-processed and released to the plaintiff.  The court found "[t]hat there is another clergy member listed on [the document]."  Because "the time frame [of the document was] the late 1930's and early 1940's," and "there is a high probability that this individual is already dead," the court "cannot see what possible stigma could inure to this person if his identity were released."  The court thus holds that the defendant must release "a fully unredacted copy of this document to Plaintiff."

• Exemption 7(D):  The court upholds protection of confidential source file numbers and symbols, as well as information provided by a foreign law enforcement authority under an express grant of confidentiality.  While the plaintiff "has waived any demand for identifying information as to confidential informants" the court construes plaintiff's pro se papers "broadly" and interprets "them as arguing that [Exemption 7(D)] has been asserted in an over broad manner to redact information supplied by a confidential source on various pages." "In light of the age of these documents, and the fact that they have been unclassified by the FBI, the Court cannot discern in Defendants' moving papers a sufficient justification for redacting the information provided by the confidential foreign source."  The court concludes that the "[d]efendants have failed to make a 'specific showing of how the remaining information would identify the source.'"

3.  Valencia v. U.S. Citizenship and Immigration Serv., No. 12-102, 2012 WL 3834938 (D. Utah Sept. 4, 2012) (Kimball, J.)

Re: Request for plaintiff's immigration file.

Holding:  Granting defendant's motion to dismiss and denying plaintiff's request for attorney fees.

• Motion to Dismiss:  The court concludes that "the action is moot and [it] lacks jurisdiction to adjudicate the matter" when the defendant "released Plaintiff's immigration file to his legal counsel…and subsequently released fourteen of the twenty-four pages that were initially withheld."  With these actions "the controversy ceases to exist because the primary relief sought [by the plaintiff] has already been provided" by the defendant.

• Attorney Fees:  "[T]he court concludes that no award of attorney fees should be made because Plaintiff did not substantially prevail and because Plaintiff's purpose for obtaining the FOIA records was for personal benefit."