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Kowack v. U.S. Forest Serv., No. 12-35864, 2014 WL 4413430 (9th Cir. Sept. 9, 2014) (Kozinski, C.J.)


Kowack v. U.S. Forest Serv., No. 12-35864, 2014 WL 4413430 (9th Cir. Sept. 9, 2014) (Kozinski, C.J.)

Re: Request for investigative report prepared in response to employee's allegations of workplace hostility

Disposition: Reversing in part and remanding district court's grant of defendant's motion for summary judgment

  • Exemption 6:  The court holds that "[b]ecause a witness's statement about misconduct he has observed in the workplace 'contain[s] information that applies to particular individuals,' such statements qualify as 'similar files.'"  However, the court finds that "the district court erred in finding that [appellee's] declaration provides an adequate factual basis for concluding that disclosure of the witness statements would 'constitute a clearly unwarranted invasion of personal privacy.'"  The court explains that "[t]he witnesses may have a privacy interest in ensuring that their names aren't associated with specific incidents reported to the investigator."  "But the government hasn't provided enough information for us to make an independent determination whether it's necessary to withhold all details about the events the witnesses described in order to protect that interest."  The court also finds that "[n]or do we have enough information to assess the public interest."  However, regarding "the redaction of grievance-related documents created by the National Federation of Employees and complaints made by employees other than [appellant] to the center director," the court holds that "[b]ecause the public interest in disclosure of these documents is minimal, the documents were properly withheld."
  • Exemption 5, Deliberative Process Privilege:  The court holds that "[appellee's] declaration doesn't adequately show how the disclosure of any portion of the redacted documents would 'expose 'the [agency's] decision-making process itself' to public scrutiny.'"  Specifically, the court finds that "[w]hile facts aren't automatically subject to disclosure, 'factual material that does not reveal the deliberative process is not protected.'"
Court Decision Topic(s)
Court of Appeals opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 6
Updated January 28, 2022