Smith v. Dep't of Treasury, No. 17-1796, 2020 WL 376641 (D.D.C. Jan. 23, 2020) (Chutkan, J.)

Smith v. Dep't of Treasury, No. 17-1796, 2020 WL 376641 (D.D.C. Jan. 23, 2020) (Chutkan, J.)

Re:  Requests for personnel information regarding all Treasury employees

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he court will deny summary judgment . . . on the adequacy of OPM's search."  "OPM declares that it referred [plaintiff's] request to Treasury but does not explain whether it had responsive records or how the search was conducted."  "Because OPM failed to provide sufficient detail regarding its search for responsive records, its motion for summary judgment is denied without prejudice."  "OPM must either conduct an adequate search for records or provide enough detail to show that no responsive records exist."
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that "OPM argues – for the first time – that [plaintiff] did not exhaust his administrative remedies and therefore his suit should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6)."  "This argument comes too late, and the court will not consider it."  "A party cannot raise new arguments in a reply brief because it deprives the opposing party of the opportunity to respond."
   
• Exemption 6:  "Because disclosing the names of certain non-senior employees and cell phone numbers for all Treasury employees would result in a 'clearly unwarranted invasion of personal privacy,' Treasury properly invoked exemption 6 to withhold this information, and the court will grant summary judgment to Treasury as to these issues."  First, the court finds that "[b]ecause the information is particular to individual employees, the threshold inquiry for exemption 6 is satisfied."  The court explains that "Treasury obtained the withheld information, names and phone numbers of non-senior employees and cell phone numbers for all employees, from its databases containing personnel records."  Second, regarding the privacy interests at issue, "the court finds that the non-senior Treasury employees have a . . . substantial privacy interest in their names."  The court explains that "[e]mployees can have a cognizable privacy interest in their names."  "Here, Treasury redacted the names of a limited group of non-senior employees:  those who work in offices that perform national security and law enforcement functions, IRS employees who are part of a pseudonym program to protect employees' personal safety, and IRS employees who work in 'sensitive' positions (as defined by OPM)."  Additionally, regarding the privacy interest in requested cell phone numbers, the court finds that "[w]hether all Treasury employees have a privacy interest in their work cell phone numbers is a closer call."  "Cell phone numbers implicate a different privacy interest from landline office phone numbers because employees carry cell phones with them outside the office and regular work hours."  "Disclosing the numbers for work cell phones, which employees maintain in their homes and on their person, could subject them to the type of harassment exemption 6 was designed to prevent, and therefore the court finds that the Treasury employees maintain a privacy interest in protecting their work cell phone numbers."  Third, regarding the public interest at issue, the court finds that "there is no public interest in disclosing information about individuals when such information shows 'little or nothing about an agency's conduct.'"  "[Plaintiff's] request seems designed to obtain personal information that would allow him to infer the ethnic heritage, religion, and/or national origin of certain Treasury employees."  "The court cannot find that such an inquiry is in the public interest, but does find that disclosure would increase the risk of harassment to those employees."
   
  However, the court also finds that "[b]ecause Treasury failed to explain how exemptions 6 and 7(C) applied to office phone numbers, the court denies summary judgment to both parties on this issue without prejudice."  "Treasury also withheld 'phone numbers' for [Treasury's Office of Terrorism and Financial Intelligence] employees . . . and all IRS employees."  "But Treasury's affidavits are unclear about whether these are personal or office phone numbers."  "Therefore, there is insufficient factual basis to determine the personal privacy interest in withholding disclosure of those phone numbers, and the court denies summary judgment on this issue."
   
• Exemption 1:  The court holds that "Treasury has met its burden of showing that exemption 1 protects the information sought from disclosure, and the court will grant Treasury summary judgment as to [defendants'] invocation of exemption 1."  The court relates that "Treasury invoked exemption 1 for withholding the names, titles, and phone numbers of non-leadership [Treasury Office of Intelligence and Analysis ("OIA")] employees."  "First, [defendants'] Declaration establishes that [defendants' declarant] has proper classification authority pursuant to Executive Order 13,526."  "Second, the names, titles, and phone numbers of OIA employees are 'owned by, produced by or for, or are under the control of the United States Government.'"  "Third, the information pertains to 'intelligence activities and foreign activities of the United States' under sections 1.4(c) and (d) of Executive Order 13,526."  "Fourth, [defendants'] Declaration explains that revealing the names, titles, and phone numbers for OIA employees would 'when compiled in the aggregate' reveal 'the individuals responsible for making sensitive decisions about Treasury's activities in support of the National Intelligence Program.'"  "'The disclosure of this sort of information would provide our adversaries and foreign intelligence targets with insight into OIA's foreign intelligence activities and capabilities.'"  "'This information could[ ] then be used to develop the means to target OIA employees[ ] and degrade and evade those activities and capabilities.'"  The court finds that "[defendants'] summary of the potentially harmful national security consequences from disclosure satisfies the final requirement for classification under Executive Order 13,526."
   
• Litigation Considerations:  The court relates that "[plaintiff] argues that Treasury failed to produce documents in the form or format requested."  The court finds that "Treasury did not respond to [plaintiff's] argument on this issue, and therefore the court will treat it as conceded."
   
• Litigation Considerations, Vaughn Index/Declaration:  "Given that there were only two FOIA exemptions at issue and Treasury provided four detailed affidavits, the court finds that Treasury was not required to provide a Vaughn index."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "As to segregability, the court cannot find on this record that Treasury has met its burden."  "Treasury claims that 'all information withheld was either exempt from disclosure pursuant to a FOIA exemption or was so intertwined with protected material that segregation was not possible without revealing the underlying protected material,' . . . and that '[e]very effort has been made to release all segregable information,' . . . ."  "These conclusory and formulaic recitations of the segregability elements are insufficient for the court to find that all reasonably segregable portions of the material were released."