Tower v. CBP, No. 23-204, 2024 WL 3967322 (D.D.C. Aug. 28, 2024) (Bates, J.)

Tower v. CBP, No. 23-204, 2024 WL 3967322 (D.D.C. Aug. 28, 2024) (Bates, J.)

Re:  Request for records concerning CBP’s and plaintiff’s union’s actions after plaintiff resigned his union membership, specifically including certain third-party communications

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

• Exemption 6, Privacy Interest, Information in the Public Domain and Practical Obscurity & “Glomar” Responses:  The court relates that “CBP maintains that it issued a proper Glomar response based on FOIA Exemption 6.”  “CBP argues that lower-level CBP employees, by virtue of their government employment and CBP’s law enforcement mission, have a significant privacy interest in preventing the public disclosure of their identities.” “Because [plaintiff] requested documents ‘related to [the] [CBP] Officer / NTEU Chapter 173 President[’s] . . . communication[s],’ CBP contends that acknowledging the existence of any such documents would necessarily confirm that [the subject] is indeed a CBP officer.” “Thus, CBP reasons, such an acknowledgement falls within Exemption 6 and a Glomar response was appropriate.”  The court finds that “[t]he threshold requirement is not at issue here, as [plaintiff] does not dispute that names can be ‘similar files’ within the meaning of Exemption 6.”  “Nor does [plaintiff] meaningfully dispute that lower-level CBP officers have some degree of privacy interest in their names.”  “Rather, [plaintiff] argues that any privacy interest [the subject] may have in his identity as a CBP officer is significantly diminished by [the subject’s] widespread public disclosure of that very fact.”  “[Plaintiff] points to a variety of public materials identifying [the subject] as a CBP officer, including:”  “A public NTEU bulletin . . .[identifying] him as a CBP officer and NTEU Chapter 173 President;” “[a] message from [the subject] on NTEU’s public website that identifies him as NTEU Chapter 173 President;” “[a] blog post on NTEU’s public website discussing [the subject’s] contact with members regarding their ‘NTEU-CBP contract;’” “[a]nother public NTEU bulletin that identifies [the subject], of ‘Chapter 173, CBP Detroit’ as the recipient of an award for exemplary union leadership;”  “[a] press release from the leadership of the Senate Homeland Security and Governmental Affairs Committee that quotes [the subject], in his capacity as President of NTEU Local 173, discussing CBP staffing shortages;” “[a] page on NTEU’s website with nineteen videos of [the subject] discussing various topics relevant to Local 173 members;” and “[a] post on the ‘NTEU Chapter 173 CBP Detroit’ public Facebook page identifying [the subject] in his CBP uniform.”  “The Court agrees that these affirmative public disclosures significantly diminish any privacy interest on the part of [the subject] in his identity as a CBP officer.”  “Here, [the subject] appears to be a vocal, public advocate for the CBP officers in his local union chapter.”  “His public presence extends across a variety of media, even including a feature in a U.S. Senate press release.”  “All of that is to be commended.”  “But these affirmative public disclosures of [the subject’s] identity as a CBP officer seriously undermine CBP’s contention that [the subject] has a meaningful privacy interest in that very fact.”
  
  “CBP resists this conclusion.”  “CBP insists that rather than challenging the applicability of Exemption 6 on the merits, [plaintiff] is (unsuccessfully) invoking the ‘official acknowledgment’ doctrine . . . .”  “The Court disagrees.”  “[Plaintiff’s] challenge is squarely directed at the weight of [the subject’s] privacy interest for purposes of the Exemption 6 analysis.”  “And the official acknowledgement doctrine operates to waive an agency's right to withhold ‘otherwise exempt information.’”  “That is to say, the official acknowledgement doctrine generally represents a mechanism for overcoming the normal exemption analysis to plaintiffs’ benefit – not supplanting it to plaintiffs’ detriment.”  “And the affirmative nature and extent of the public disclosure here significantly diminishes any associated privacy right.”
  
  “[Plaintiff] maintains that the Exemption 6 analysis should end there.”  “He asserts that, given the weak privacy interest at issue, CBP cannot even clear the first step of the two-step analysis – that is, show that disclosure ‘would compromise a substantial, as opposed to a de minimis, privacy interest.’”  “Even assuming – favorably to CBP – that Holland’s privacy interest clears the ‘substantial’ threshold, this interest would be outweighed by the public interest in disclosure of the requested records.”  “To be sure, [plaintiff] appears to seek the records largely in relation to his personal dispute with NTEU and CBP regarding the continued deduction of union fees from his wages.”  “But this personal motivation is largely irrelevant to the public interest analysis, which focuses on whether the requested records shed light on ‘what the[ ] government is up to.’”  “The Court agrees with [plaintiff] that the public has an interest in understanding how CBP interacts with its employees’ union – and particularly why CBP allegedly continued deducting union dues after one of its employees resigned his union membership.”  “And the Court concludes that this public interest outweighs the privacy interest at issue – which, as discussed above, is quite weak.”  “Hence, disclosure of the fact that [the subject] is a CBP officer would not ‘constitute a clearly unwarranted invasion of personal privacy,’ . . . and Exemption 6 – the basis for CBP’s Glomar response – does not apply.”  “CBP’s Glomar response was therefore improper.”