The Intercept Media Inc. v. Nat’l Park Serv., No. 23-10922, 2024 WL 5009310 (S.D.N.Y. Dec. 6, 2024) (Engelmayer, J.)

The Intercept Media Inc. v. Nat’l Park Serv., No. 23-10922, 2024 WL 5009310 (S.D.N.Y. Dec. 6, 2024) (Engelmayer, J.)

Re: Request for records concerning investigation of January 2022 killing of gray wolf near northern boundary of Yellowstone National Park

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Exemption 7, Threshold: The court relates that “[plaintiff] argues that the [National Park Service (“NPS”)] has failed to make that threshold showing.”  The court finds that “[plaintiff’s] argument misses the mark, because the NPS’s affidavits establish that [NPS’s Office of Professional Responsibility (“OPR”)] was investigating, among other infractions, a potential federal criminal offense.”  “As NPS attests, the OPR initiated the underlying investigation ‘in response to’ allegations of employee misconduct in connection with the killing of Wolf 1233 near the boundary of Yellowstone.”  “Part of the misconduct alleged was hunting by an NPS employee within the national park.” “If established, such would be a criminal violation of 16 U.S.C. § 26 and 36 C.F.R. § 2.2.”  “Separately, hunting outside the hours permitted by Montana state regulations, a theory that was investigated, is a violation of law.” “The Court therefore finds that the allegations investigated by the OPR encompass criminal conduct.”  “The documents contained in the Investigative File thus qualify as records compiled for law enforcement purposes.”
   
• Exemption 7(C):  Regarding the privacy interests at issue, the court relates that “NPS argues that Exemption 7(C) protects the target of the OPR investigation from disclosure of his identity and of the allegations made against him.”  The court finds that, “[a]t the threshold, [plaintiff] is correct that [the investigatory subject], by publicly announcing that he was the investigative target, has waived any privacy interest in that fact.”  “As a result of [the investigatory subject’s] on-the-record interview with The Intercept, the public already knows that [the investigatory subject] was suspected of misconduct in connection with the killing of Wolf 1233, including improprieties committed with others, and that these allegations had prompted an investigation by the NPS.”  “At the same time, [the investigatory subject] retains a distinct, albeit significantly diminished, privacy interest in the details of the investigation and the allegations against him, to the extent he has not disclosed these details.”  “Exemption 7(C) recognizes that, not only a target’s identity, but also the ‘[a]ccusations and derogatory statements made against’ him, may, when disclosed, ‘result in an intrusion on [his] personal privacy by causing embarrassment and reputational harm,’ whether or not these allegations are later substantiated.”  “Salient here, [the investigatory subject’s] public statements, in recounting the allegations against him, made more than a ‘vague reference’ to the nature of these.” “[The investigatory subject] did not, however, give up ‘all his interest’ in every detail of the investigation.”  “Revealing though they otherwise were, [the investigatory subject’s] public statements do not establish that the allegations . . . were in fact the allegations investigated by the OPR – or the entirety of them.”  “Insofar as the public has not been given – by [the investigatory subject] or otherwise – a clear roadmap of the allegations actually investigated by the OPR, [the investigatory subject] retains a privacy interest, albeit a weak one, in the details of the investigation that are not already in the public domain.”
  
  Additionally, the court finds that “[i]t is undisputed that the complainant, the persons the NPS interviewed, and other third parties have substantial privacy interests protected by FOIA.”  “That includes investigative subjects other than [the investigatory subject], because, based on the record before the Court, no such person has publicly so identified himself or herself.”  “The parties also agree that privacy interests justify redacting those persons’ names and other personally identifying data (e.g., their job titles).”  “They disagree, however, whether those third parties have privacy interests in the factual information they provided other than their names and personal data.”  “The relevant question under Exemption 7(C) is . . . not whether the information about an individual would tend to identify him or her to the world.”  “It is whether it would tend to identify him or her in the smaller community in which he or she seeks to maintain privacy.”  “That is a very real consideration in this case.” “The events OPR investigated occurred in a ‘very small’ workplace in which many of the individuals involved ‘knew each other well’ and interacted on a ‘routine basis.’”  “Furthermore, the NPS has attested, only a small number of non-NPS employees within the local community potentially had relevant information about Wolf 1233’s killing near Yellowstone’s northern boundary.”  “In such situations, a portion of the Investigative File that reveals the vantage point from which a witness recounts factual observations has the potential to enable members of the public to identify the witness, or narrow the universe to two or three individuals.”  “And, to the extent only a small number of individuals could have had firsthand knowledge of the incidents, their factual recollections could readily identify them.”  “The NPS has thus shown ‘a fair possibility’ that a member of the local community could identify persons interviewed based on some of the factual information they provided.”  “The NPS has also explained why identifying such persons could provoke the harms which Exemption 7(C) guards against.”  “It notes that there are ‘strong feelings’ within the community about wolf hunting.” “And it reasonably explains that publicly identifying the suspected co-conspirators – or witnesses who spoke to OPR – could expose them to harassment, embarrassment, and unnecessary questioning.”  “Reprisals of this sort could also discourage participation in future investigations.” “Courts have consistently given weight to such concerns.”
  
  “In sum, the Court finds, the information the NPS has withheld implicates cognizable privacy interests, albeit ones of differing strengths; (1) [the investigatory subject] has a weak privacy interest in nondisclosure of the details of the OPR’s investigation into the allegations against him, and (2) third parties, including interviewees and investigative subjects other than [the investigatory subject], have a substantial interest in maintaining the confidentiality of their association with the investigation.”
  
  “The Court next considers the other side of the equation:  the public interest in the disclosure of the information in the Investigative File.” “[Plaintiff’s] first argument is persuasive and powerful.”  “The release of information about the NPS’s investigation could surely contribute ‘to public understanding of the operations or activities of the government.’” “The NPS ‘is charged with responsibility for the management and maintenance of the National Parks.’”  “Its ability to carry out that statutory mandate would unavoidably be threatened by the misconduct at issue – the NPS employees’ leaking of government information such as wolf-tracking information to enable private parties including other employee(s) to exploit Yellowstone’s natural resources – as the public would surely appreciate.”  “And the allegations the NPS explored against [the investigatory subject] and his asserted confederates are of serious misconduct by NPS employees in their official capacities.”  “The alleged conspiracy substantially involved on-the-job conduct; the alleged co-conspirators had access by dint of their government positions to the location information transmitted by the wolves’ collars; the location data allegedly misused for private hunting purposes was gathered by a Yellowstone research project; and an alleged co-conspirator, [the investigatory subject], has publicly admitted to killing Wolf 1233 and suggested that he had tracked the animal while he was performing his official duties.”  “The public thus has a very strong interest in understanding to what extent and how the NPS has investigated these allegations and, to the extent that these were substantiated, whether the agency has taken corrective action.”  “The second public interest advanced by [plaintiff] is more general.”  “It argues that the withheld information has potential to inform discussion about policy issues relating to gray wolf hunting, for example, the use of telemetry to track wolves or the limits that should be put on the hunting of such animals.”  “But these policy issues are not closely tethered to the facts underlying the NPS’s investigation or to NPS’s performance of its statutory duties, whether in enabling or investigating the misconduct alleged.”  “The policy debates identified by [plaintiff] are surely important ones that rightly engage members of the public.”  “But they have ‘little or nothing’ to do with the agency’s ‘own conduct’ implicated by the Investigative File . . . .”  “As a result, the Court discounts this interest.”
  
  Balancing the interests, the court finds that “[t]he public’s interest in disclosure of information pertaining to [the subject] decisively outweighs the limited privacy interest he retained in the details of the investigation that were not disclosed by his public statements.”  “As noted, the public has a strong interest in learning whether the NPS took appropriate action in response to allegations that one or more of its employees misused government information and exploited Yellowstone’s natural resources for personal gain.”  “The public also has a strong interest in learning whether such misconduct in fact occurred.”  “The public’s interest in these subjects is heightened by the concerted nature of the alleged misconduct.”  “Whether such occurred, and whether the NPS responded by probing the alleged misconduct in its midst with energy, enterprise, and integrity, are of obvious public concern.”  “Accordingly, the Court holds, where the only affected privacy interest is that of [the investigatory subject], the NPS must disclose the details of its investigation.” “For avoidance of doubt, the NPS must do so even where the allegations about [the investigatory subject] concern his interactions with others.”  “To be sure, portions of the Investigative File that reference other NPS employees suspected of misconduct and who retain substantial privacy interests in nondisclosure of their identities must be reviewed with care, out of deference to those interests.”  “But, where tailored redactions can reasonably assure that the identity of persons other than [the investigatory subject] will remain private, the NPS may not withhold factual information related to the collective conduct and the alleged conspiracy.”
  
  “The NPS stands on much firmer ground in seeking to withhold information implicating the privacy interests of the complainant, witnesses, suspected co-conspirators, and other third parties – that is, persons other than [the investigatory subject].”  “The Court therefore finds that the privacy interests at stake outweigh the public interest in the information tending to disclose the identity of persons other than [the investigatory subject].”  “[T]he court gives substantial deference to the NPS’s determination that the transcripts of witness interviews must be withheld in their entirety in order to protect the witness’s privacy interests.”  “The Court upholds the NPS’s determination to withhold, categorically, the transcripts of witness interviews.”  “However, as to the balance of the Investigative File, the same categorical assessment cannot be made.”  “The Court has reviewed the File in camera.”  “It is readily apparent to the Court that the scale of redactions far exceeds that which is warranted to protect the interests of third parties in keeping their identities private.”  “A far more nuanced and neutral review – one that will result in substantially greater public disclosure – is needed to bring the NPS’s redactions in line with Exemption 7(C).”