Theresa Cameranesi v. Dept. of Defense , 856 F.3d 626 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA CAMERANESI; JUDITH No. 14-16432
LITEKY,
Plaintiffs-Appellees, D.C. No.
4:12-cv-00595-PJH
v.
UNITED STATES DEPARTMENT OF ORDER AND
DEFENSE; U.S. ARMY TRAINING OPINION
AND DOCTRINE COMMAND,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted May 13, 2016
San Francisco, California
Filed May 8, 2017
Before: Andrew J. Kleinfeld, Sandra S. Ikuta,
and Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Ikuta;
Dissent by Judge Watford
2 CAMERANESI V. U.S. DEP’T OF DEFENSE
SUMMARY*
Freedom of Information Act
The panel withdrew the opinion and dissent filed on
September 30, 2016; filed a superseding opinion and dissent;
and reversed the district court’s summary judgment in favor
of plaintiffs, who brought an action under the Freedom of
Information Act (“FOIA”) against the United States
Department of Defense seeking the names of foreign
students and instructors at the Western Hemisphere Institute
for Security Cooperation.
The panel held that disclosure of the names of the foreign
students and instructors would constitute a clearly
unwarranted invasion of personal privacy, and was exempt
from disclosure under Exemption 6 of FOIA, which provides
that FOIA “does not apply to . . . personnel and medical files
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6).
Applying the two-step test to determine whether
disclosing the names would constitute an unwarranted
invasion of personal privacy under Exemption 6, the panel
first concluded that the affidavits and other evidence
submitted by the Department of Defense was sufficient to
carry the Department’s burden to establish that the disclosure
of the requested information gave rise to a nontrivial risk of
harassment and mistreatment. Second, the panel balanced the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CAMERANESI V. U.S. DEP’T OF DEFENSE 3
privacy interests against the public interests, and concluded
that the small incremental value stemming from disclosure of
the identities did not outweigh the serious risks that would
result from disclosure.
Dissenting, Judge Watford would affirm the district
court’s summary judgment, because in his view the
Department of Defense did not carry its burden of
demonstrating that the students’ and instructors’ interests
outweighed the strong public interest in disclosure of their
names.
COUNSEL
Steve Frank (argued) and Leonard Schaitman, Appellate
Staff; Melinda Haag, United States Attorney; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellants.
Duffy Carolan (argued), Jassy Vick Carolan LLP, San
Francisco, California; Kent Spriggs, Spriggs Law Firm,
Tallahassee, Florida; for Plaintiffs-Appellees.
Bruce D. Brown, Katie Townsend, Adam A. Marshall, and D.
Victoria Baranetsky, Washington, D.C., as and for Amicus
Curiae The Reporters Committee for Freedom of the Press.
4 CAMERANESI V. U.S. DEP’T OF DEFENSE
ORDER
The opinion and dissent filed on September 30, 2016, and
appearing at 839 F.3d 751, are withdrawn. The superseding
opinion and dissent will be filed concurrently with this order.
Appellees’ petition for rehearing en banc, filed
November 14, 2016, is DENIED. Judge Ikuta voted to deny
the petition for rehearing en banc and Judge Kleinfeld so
recommended. Judge Watford voted to grant the petition for
rehearing en banc. The petition for rehearing en banc was
circulated to the judges of the court, and no judge requested
a vote for en banc consideration. No further petitions for
rehearing or rehearing en banc will be entertained.
OPINION
IKUTA, Circuit Judge:
This case requires us to determine whether the names of
foreign students and instructors at the Western Hemisphere
Institute for Security Cooperation (WHINSEC) are exempt
from disclosure under Exemption 6 of the Freedom of
Information Act (FOIA). 5 U.S.C. § 552(b)(6). Because we
conclude that the disclosure of these names “would constitute
a clearly unwarranted invasion of personal privacy,” id., we
reverse the district court’s grant of summary judgment to the
plaintiffs.
CAMERANESI V. U.S. DEP’T OF DEFENSE 5
I
We begin with the factual background regarding the
development of WHINSEC, the Department of Defense’s
adjustments to its disclosure policy in light of the terrorist
attacks of 2001, and the plaintiffs’ lawsuit.
A
The United States Army School of the Americas (SOA)
opened in 1946 “for the purpose of providing military
education and training to military personnel of Central and
South American countries and Caribbean countries.”
10 U.S.C. § 4415(b) (1987). In 1989, during the Salvadoran
Civil War, Salvadoran soldiers gunned down six Jesuit priests
as well as their housekeeper and her 16-year-old daughter. It
was later reported that 19 of the 26 soldiers implicated in
these deaths had attended SOA. These murders sparked
protests against SOA and prompted the formation of School
of the Americas Watch (SOAW), a human rights and
advocacy group dedicated to monitoring SOA graduates and
lobbying for closure of the school.1
As part of these monitoring efforts, SOAW submitted a
FOIA request to the Department of Defense (DOD) seeking
the names of all former and current SOA students and
instructors. The DOD granted the request in 1994, and
1
The dissent provides a much lengthier and more detailed discussion
of SOA’s history, relying primarily on newspaper articles and other extra-
record material. Dissent at 38–40. While this further illuminates the
reasons for Congress’s decision to address these issues through legislative
enactments, the dissent’s historical research is otherwise not relevant to
the legal question before us: whether the public’s interest in disclosure
outweighs the privacy interest of WHINSEC students and instructors.
6 CAMERANESI V. U.S. DEP’T OF DEFENSE
disclosed the names of all SOA students and instructors
dating back to the school’s formation in 1946. SOAW used
the names to create a database containing the names,
countries, and courses taken or taught by each attendee.
In 1997, Congress sought to improve the human rights
record of SOA by adopting the Leahy Amendments to the
Foreign Operations Appropriations Act. See Foreign
Operations, Export Financing, and Related Programs
Appropriation Act, 1998, Pub. L. No. 105-118, § 570, 111
Stat. 2386, 2429 (1997).2 The Leahy Amendments precluded
the DOD from providing congressionally appropriated funds
2
Specifically, the Leahy Amendments stated:
None of the funds made available by this Act may be
provided to any unit of the security forces of a foreign
country if the Secretary of State has credible evidence
that such unit has committed gross violations of human
rights, unless the Secretary determines and reports to
the Committees on Appropriations that the government
of such country is taking effective measures to bring the
responsible members of the security forces unit to
justice: Provided, That nothing in this section shall be
construed to withhold funds made available by this Act
from any unit of the security forces of a foreign country
not credibly alleged to be involved in gross violations
of human rights: Provided further, That in the event
that funds are withheld from any unit pursuant to this
section, the Secretary of State shall promptly inform the
foreign government of the basis for such action and
shall, to the maximum extent practicable, assist the
foreign government in taking effective measures to
bring the responsible members of the security forces to
justice.
§ 570, 111 Stat. at 2429.
CAMERANESI V. U.S. DEP’T OF DEFENSE 7
to any unit of a foreign country’s security forces if there was
credible evidence that the unit “has committed gross
violations of human rights,” unless the Secretary of State
reported to Congress that the foreign government was “taking
effective measures to bring the responsible members of the
security forces unit to justice.” Id.
Congress reenacted the Leahy Amendments in subsequent
appropriations bills3 until 2008, when the amendments were
codified as part of the DOD appropriations rules, 10 U.S.C.
§ 2249e, and the Foreign Assistance Act, 22 U.S.C. § 2151 et
seq. The provisions pertaining to the DOD, 10 U.S.C.
§ 2249e, state that no funds “made available to the
Department of Defense . . . may be used for any training,
equipment, or other assistance for a unit of a foreign security
force if the Secretary of Defense has credible information that
the unit has committed a gross violation of human rights.” Id.
§ 2249e(a)(1). The law further requires the Secretary of
Defense to consult with the Secretary of State to “ensure that
prior to a decision to provide any training, equipment, or
other assistance to a unit of a foreign security force full
consideration is given to any credible information available
to the Department of State relating to human rights violations
by such unit.” Id. § 2249e(a)(2). The statute does not require
3
See Appropriations 2000 — Department of Defense, Pub. L. 106-79,
§ 8098, 113 Stat. 1212, 1259 (1999); Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 2002, Pub. L. No.
107-115, § 556, 115 Stat. 2118, 2160 (2002); Department of Defense
Appropriations Act, 2004, Pub. L. 108-87, § 8077, 117 Stat. 1054, 1090
(2003); Department of Defense, Emergency Supplemental Appropriations
to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza
Act, 2006, Pub. L. 109-148, § 8069, 119 Stat. 2680, 2714 (2005);
Department of Defense Appropriations, Pub. L. No. 110-116, § 8062, 121
Stat. 1295, 1328 (2007).
8 CAMERANESI V. U.S. DEP’T OF DEFENSE
the DOD to continue to monitor the performance of such
units or the careers of individual members of those units after
they leave WHINSEC. The provisions pertaining to the
Secretary of State impose a similar ban on providing
assistance to a unit believed to have committed human rights
violations. 22 U.S.C. § 2378d.4 As later amended in 2011,
the statute also directs the Secretary of State to “establish, and
periodically update, procedures to . . . ensure that when an
individual is designated to receive United States training,
equipment, or other types of assistance the individual’s unit
is vetted as well as the individual.” Id. § 2378d(d)(5).5 If the
Secretary determines that a particular unit is ineligible for
assistance, the Secretary is required to “make publicly
available, to the maximum extent practicable, the identity of
those units for which no assistance shall be furnished.” Id.
§ 2378d(d)(7). As with the statute regulating the DOD, there
is no requirement for the Secretary of State to continue
monitoring students for human rights abuses after they
graduate from WHINSEC. In short, the statutes require the
Secretary of State to take the lead in vetting foreign units
receiving United States assistance, and the Secretary of
4
22 U.S.C. § 2378d(a) states: “No assistance shall be furnished under
this chapter or the Arms Export Control Act to any unit of the security
forces of a foreign country if the Secretary of State has credible
information that such unit has committed a gross violation of human
rights.”
5
The requirement that the Secretary of State “establish, and
periodically update, procedures to . . . ensure that . . . the individual’s unit
is vetted as well as the individual” was added to the statute on December
23, 2011, see Consolidated Appropriations Act, 2012, Pub. L. 112-74,
§ 2378d, 125 Stat. 786, 1216 (2011), after the March 1, 2011 FOIA
request in this case. The parties do not argue that this affects our analysis
of the plaintiffs’ FOIA request for information about individual students
and instructors at WHINSEC, and therefore we do not address this issue.
CAMERANESI V. U.S. DEP’T OF DEFENSE 9
Defense to consider information from the State Department
before providing training or assistance to foreign military
units, but not to continue such vetting after the assistance has
concluded.
B
In conjunction with implementing these laws, Congress
replaced SOA with a new training facility called the Western
Hemisphere Institute for Security Cooperation (WHINSEC).
See Floyd D. Spence National Defense Authorization Act for
Fiscal Year 2001, Pub. L. No. 106-398, § 911, 114 Stat.
1654A-226 (2000) (codified at 10 U.S.C. § 2166).
WHINSEC, which opened its doors on January 17, 2001,
provides “professional education and training to eligible
personnel of nations of the Western Hemisphere.” 10 U.S.C.
§ 2166(b). Section 2166 states that one of the purposes of
WHINSEC is “promoting . . . respect for human rights.” Id.To accomplish this goal, Congress required that the
WHINSEC curriculum “include mandatory instruction for
each student, for at least 8 hours, on human rights, the rule of
law, due process, civilian control of the military, and the role
of the military in a democratic society.” Id. § 2166(d)(1).
To ensure that WHINSEC complies with its statutory
obligations, Congress established an independent WHINSEC
Board of Visitors charged with “inquir[ing] into the
curriculum, instruction, physical equipment, fiscal affairs,
and academic methods of [WHINSEC].” Id. § 2166(e)(4)(A).
Under this statute, the Board of Visitors must hold an annual
public meeting and “submit to the Secretary of Defense a
written report of its activities and of its views and
recommendations pertaining to the Institute.” Id.
§§ 2166(e)(3), (5). Pursuant to these obligations, the Board
10 CAMERANESI V. U.S. DEP’T OF DEFENSE
of Visitors maintains an updated database containing details
on its annual meetings from 2002 to the present.6 The
minutes reflect that the Board closely oversaw the
development of WHINSEC’s human rights curriculum, see
Board of Visitors WHINSEC, Minutes of Annual Meeting
(Jun. 3–4, 2002),7 and ultimately concluded that WHINSEC
“is a success story, in terms of its diligent pursuit of its
mission of teaching professional military values, including
human rights and democracy,” Board of Visitors WHINSEC,
Minutes of Annual Meeting (Dec. 1–2, 2004).8 In executing
its ongoing duty to monitor WHINSEC’s fulfillment of its
human rights mission,9 the Board has formed a curriculum
subcommittee which has “observed classes, reviewed selected
lesson plans and reference material, and visited training
facilities,” as well as interviewed students and faculty.
Memorandum from Matthew D. Anderson & Robert C.
Morlino, WHINSEC BoV, on Curriculum Review of
WHINSEC (July 13, 2007) (Annex 3 in Sec’y of Def.,
Annual Report to Cong. on the Activities of the Western
Hemisphere Institute for Security Cooperation 19 (2007)). In
6
The minutes for each Board of Visitors meeting may be found online
under the link for the relevant year. See Committee History 2002–2015,
Board of Visitors WHINSEC, online at .
7
Online at .
8
Online at .
9
See, e.g., Board of Visitors WHINSEC, Annual Organizational
Meeting 2015 (Nov. 21, 2014), online at .
CAMERANESI V. U.S. DEP’T OF DEFENSE 11
2007, the Board’s curriculum subcommittee concluded that
WHINSEC had made “enormous strides in inserting human
rights and democracy education into the curriculum, and is
reported to have exceeded minimum required hours of
instruction.” Memorandum from the Curriculum Review
Sub-Committee, WHINSEC BoV, on Review of WHINSEC
Curriculum (May 30, 2007) (Annex 3 in Sec’y of Def.,
Annual Report to Cong. on the Activities of the Western
Hemisphere Institute for Security Cooperation 25 (2007)).10
Based on this report, the Board of Visitors concluded that
WHINSEC “was meeting and in some cases exceeding its
congressional mandate in the area of promoting human rights
and democratic values.” Memorandum from Matthew D.
Anderson & Robert C. Morlino, WHINSEC BoV, on
Curriculum Review of WHINSEC (July 13, 2007) (Annex 3
in Sec’y of Def., Annual Report to Cong. on the Activities of
the Western Hemisphere Institute for Security Cooperation 19
(2007)).
While the State Department, rather than WHINSEC, is
responsible for vetting the individuals designated to attend
the school, the Board has reviewed the vetting process in
response to public comments. Letter from Ambassador Jose
S. Sorzano, Immediate Past Board Chairman, WHINSEC
10
According to the Annual Report to Congress, WHINSEC’s human
rights curriculum “consisted of nine integrated parts: Democracy and
Human Rights Class, Democracy and Human Rights Week, the
Intermediate Level Education (ILE) Electives, Human Rights Instructor
Course, Engagement Skills Training Facility, Human Rights Subject
Matter Expert Exchanges, Human Rights NGO Roundtables, and the Field
Studies Program.” Sec’y of Def., Annual Report to Cong. on the
Activities of the Western Hemisphere Institute for Security Cooperation
3 (2007). The report included a detailed description of this curriculum.
Id. at 4–6.
12 CAMERANESI V. U.S. DEP’T OF DEFENSE
BoV & Bishop Robert C. Morlino, Board Chairman,
WHINSEC BoV, to School of Americas Watch 1–2 (Feb. 15,
2007) (Annex F in Sec’y of Def., Annual Report to Cong. on
the Activities of the Western Hemisphere Institute for
Security Cooperation (2006)). On one occasion, in response
to charges by SOAW that “several alleged human rights
violators had participated in WHINSEC programs,” the Board
requested an investigation into the vetting process and
reported that “effort and care” went into making the vetting
process “rigorous, labor intensive, layered, and multi-
agency.” Id. at 1–2.11 As part of its oversight effort, despite
having neither funds nor legal authority “to follow the
subsequent military careers of former [WHINSEC] students
on an organized basis,” the Board of Visitors nevertheless
employed analysts to conduct external evaluations, used a
survey tool developed by the United States Southern
Command, and made efforts through contacts in foreign
countries to obtain ongoing information regarding former
WHINSEC students. Board of Visitors WHINSEC, Minutes
of Annual Meeting 4 (Dec. 1–2, 2004).
Each report by the Board of Visitors is ultimately sent to
the Secretary of Defense, who is then required to submit a
detailed annual report to Congress. 10 U.S.C. § 2166(i). In
its 2007 report, the Secretary noted that the “WHINSEC
Democracy and Human Rights Program is a very successful
and innovative program” that “is woven into every aspect of
the curriculum.” Sec’y of Def., Annual Report to Cong. on
the Activities of the Western Hemisphere Institute for
Security Cooperation 3 (2007). With respect to the student
11
The Board also noted that according to the State Department, there
was “no evidence to verify the very serious charges” that were made
against these individuals. Id.CAMERANESI V. U.S. DEP’T OF DEFENSE 13
selection process, the Secretary stated that after the
participating foreign countries nominate individuals to attend
WHINSEC, the American Embassy in each country conducts
a background check, which is “followed up by thorough
vetting at the Department of State, in accordance with the
Leahy Amendment.” Id. at 7. The nominees “are scrutinized
for records of human rights abuses, corruption, or criminal
activities that would render them ineligible or inappropriate
for U.S. training programs.” Id.C
The terrorist attacks of September 11, 2001, which
occurred just nine months after WHINSEC began operations,
heightened the DOD’s concerns regarding protecting its
personnel. On November 9, 2001, the DOD issued a
memorandum instructing all DOD components to “ordinarily
withhold lists of names and other personally identifying
information of personnel . . . in response to requests under the
FOIA.” The memorandum also reemphasized the DOD’s
longstanding policy of refusing to disclose identifying
information of American service members. 5 U.S.C.
§ 552(b)(3). In 2006, the DOD promulgated regulations to
formalize this policy, mandating that “Army components
shall ordinarily withhold lists of names (including active duty
military, civilian employees, contractors, members of the
National Guard and Reserves, and military dependents) and
other personally identifying information” in response to
FOIA requests. 32 C.F.R. § 518.13(f)(2).
The DOD’s November 9, 2001 memorandum regarding
American military personnel did not immediately impact
WHINSEC’s privacy policies. The DOD continued
disclosing the names of WHINSEC students and instructors
14 CAMERANESI V. U.S. DEP’T OF DEFENSE
through 2004, and SOAW incorporated each new set of
names into its database. SOAW’s database included some
60,000 names, which it used to identify individuals who have
allegedly engaged in human rights abuses.
In 2005, however, the Army’s General Counsel
determined that international personnel should be accorded
the same right to privacy as U.S. personnel. Following this
decision, the DOD ceased its annual public disclosure of
WHINSEC students and instructors and began to redact the
names of WHINSEC students from all publicly released
documents. The DOD continued to comply with the Leahy
Amendment requirements to disclose the names of
WHINSEC students and instructors to Congress in a
classified format. In 2010, Congress amended the National
Defense Authorization Act to require the Secretary of
Defense to “release to the public, upon request . . . the entire
name . . . [of] each student and instructor at the Western
Hemisphere Institute for Security Cooperation,” but the
statute allowed the Secretary to “waive the [disclosure]
requirement . . . if the Secretary determines it to be in the
national interest.” National Defense Authorization Act for
Fiscal Year 2010, Pub. L. No. 111-84, § 1083, 123 Stat. 2190,
2482 (2009). The Secretary exercised his authority to waive
disclosure in both 2009 and 2010. This disclosure
requirement was not included in subsequent appropriations
bills.12
12
See National Defense Authorization Act for Fiscal Year 2012, Pub.
L. 112-81, 125 Stat. 1298 (2011); National Defense Authorization Act for
Fiscal Year 2013, Pub. L. 112-239, 126 Stat. 1632 (2013); National
Defense Authorization Act for Fiscal Year 2014, Pub. L. 113-66, 127 Stat.
672 (2013); Carl Levin and Howard P. “Buck” McKeon National Defense
Authorization Act for Fiscal Year 2015, Pub. L. 113-291, 128 Stat. 3292(2014).
CAMERANESI V. U.S. DEP’T OF DEFENSE 15
In March 2010, the House of Representatives Committee
on Armed Services convened a hearing to receive testimony
from U.S. Air Force General Douglas Fraser, Commander of
the United States Southern Command, and U.S. Air Force
General Victor Renuart, Jr., Commander of the North
American Aerospace Defense Command. See Hearing on
National Defense Authorization Act for Fiscal Year 2011 and
Oversight of Previously Authorized Programs Before the H.
Comm. on Armed Services, 111th Cong. 1 (2010). Among
other issues, the generals addressed questions regarding a
proposed amendment to the appropriations act that would
authorize publication of personal information of WHINSEC
students. General Fraser spoke against public disclosure of
the names of WHINSEC students and urged Congress to
respect the “rights and desires of the nations who provide
[WHINSEC students]” by protecting their privacy. Id. at 16.
He further stated that disclosure would threaten the privacy
of the United States citizen instructors and staff. Id. General
Renuart agreed with General Fraser regarding “the
importance of maintaining the security of the individuals
attending [WHINSEC], as well as the faculty.” Id. In
explaining the risks of disclosure, General Renuart described
an event that, while not involving a WHINSEC attendee, was
“an example of what can happen when information is in fact
released.” Id. The event involved the Mexican navy’s
successful raid on Arturo Beltran Leyva, the alleged leader of
a Mexican drug cartel. One of the naval officers involved in
the raid was killed, and his name was subsequently released
to the public. As a result, his mother, wife and children were
killed. According to General Renuart, the DOD could not
“afford to have the information that is held in WHINSEC
released because it will have that kind of effect potentially for
the individuals who are extremely valuable to us.” Id. at 19.
Accordingly, General Renuart advised the representatives that
16 CAMERANESI V. U.S. DEP’T OF DEFENSE
“we need to be very careful about the release of that
information, and we would oppose that.” Id. Congress
ultimately decided not to include the disclosure requirement
in the appropriations act.
D
On March 1, 2011, two members of SOAW, Theresa
Cameranesi and Judith Liteky, sent a FOIA request to the
DOD (specifically, the U.S. Army Training and Doctrine
Command) for “the names, ranks, branches, countries of
origin, lists of courses taken or taught, and/or dates and years
of attendance of students, instructors, and guest instructors at
[WHINSEC]” in fiscal years 2005 to 2010. A few weeks
later, the plaintiffs amended their FOIA request to request
information on the units of WHINSEC students and
instructors. The DOD partially denied the request on April 5,
2011. It disclosed some responsive records but withheld the
names or units of WHINSEC attendees under FOIA
Exemption 6. See 5 U.S.C. § 552(b)(6). The plaintiffs filed
an administrative appeal, which the DOD denied on June 8,
2011.
Following the denial of their administrative appeal, the
plaintiffs filed suit in district court, claiming that DOD
violated FOIA by failing to disclose the requested records.
The parties filed cross-motions for summary judgment. In its
motion, the DOD argued that it was entitled to withhold the
identifying information regarding students and instructors
under Exemption 6 to FOIA, 5 U.S.C. § 552(b)(6), and
submitted two affidavits from Lee A. Rials, the Public Affairs
Specialist for WHINSEC, in support. Rials’s affidavits stated
that “[t]here are a number of risks associated with releasing
the names of WHINSEC students, instructors, and guest
CAMERANESI V. U.S. DEP’T OF DEFENSE 17
instructors,” because these students “are directly involved in
conflicts with criminal gangs, drug cartels, and other violent
individuals.” Rials then stated that assessments prepared by
the Defense Intelligence Agency (which had not been
approved for public release) “indicate that the public
disclosure of WHINSEC’s records may increase the threat to
Latin American students from: (1) the intelligence and
security apparatuses of countries hostile to U.S. interests and
to U.S. partner nations in the Western Hemisphere;
(2) terrorist organizations operating in the Western
Hemisphere; and (3) drug trafficking organizations operating
in the Western Hemisphere.” As an example, Rials stated
that in some countries “security personnel and their families
have been attacked after being identified in the media,” and
referenced the 2010 testimony of General Renuart before the
House Armed Services Committee. Finally, Rials stated that
foreign nations participating in the WHINSEC program
opposed “public disclosure of personally identifying
information of students and instructors” and that such
disclosure “may have adverse effects on future participation
in training programs at WHINSEC.”
The district court granted summary judgment in favor of
the plaintiffs. It held that DOD had not established that
WHINSEC students and instructors had “a substantial privacy
interest in their names” because they had not been promised
confidentiality and their names had been routinely provided
to the public before 2004.13 The DOD timely appealed.
13
The district court separately addressed the plaintiffs’ request for
WHINSEC unit information in an order issued July 29, 2013. This issue
is not before us.
18 CAMERANESI V. U.S. DEP’T OF DEFENSE
II
In the past, we employed a standard unique to FOIA cases
for reviewing a district court’s summary judgment. See
Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 688
(9th Cir. 2011) (holding that in reviewing a grant of summary
judgment in a FOIA case, we first review de novo whether
there is an adequate factual basis to support the district
court’s decision, and if there is, we then review the district
court’s conclusions of fact for clear error). We have now
overruled this FOIA-specific summary judgment standard,
and instead apply our usual summary judgment standard. See
Animal Legal Def. Fund v. U.S. Food & Drug Admin., No.
13-17131, 2016 WL 4578362, at *2 (9th Cir. Sept. 2, 2016)
(en banc). Accordingly, we now review the district court’s
grant or denial of motions for summary judgment de novo.
Id. “[W]e view the evidence in the light most favorable to the
nonmoving party, determine whether there are any genuine
issues of material fact, and decide whether the district court
correctly applied the relevant substantive law.” Id. at *1. “If
there are genuine issues of material fact in a FOIA case, the
district court should proceed to a bench trial or adversary
hearing.” Id. at *2. In this case, the facts are undisputed and
the decision turns on the legal issue whether disclosure of the
names of foreign students and instructors at WHINSEC
“would constitute a clearly unwarranted invasion of personal
privacy” for purposes of Exemption 6. 5 U.S.C. § 552(b)(6).
We have jurisdiction to review the district court’s grant of
summary judgment under 28 U.S.C. § 1291.
III
FOIA requires federal agencies to disclose records that
are requested by a member of the public. 5 U.S.C. § 552.
CAMERANESI V. U.S. DEP’T OF DEFENSE 19
The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii)
is made in accordance with published rules . . . and
procedures to be followed, shall make the records promptly
available to any person.” Id. § 552(a)(3)(A).14 FOIA’s
disclosure obligations extend to all agency records except the
nine categories of records listed in § 552(b) as exempt from
disclosure. “[A]s a general rule, when documents are within
FOIA’s disclosure provisions, citizens should not be required
to explain why they seek the information” because
information about government functions “belongs to citizens
to do with as they choose.” Nat’l Archives & Records Admin.
v. Favish, 541 U.S. 157, 172 (2004). But when disclosure
affects the types of information protected by the exemptions,
“the usual rule that the citizen need not offer a reason for
requesting the information must be inapplicable.” Id.At issue here is Exemption 6, which provides that FOIA
“does not apply to . . . personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). In order to withhold information from disclosure
under Exemption 6, the agency must specifically invoke the
exemption and must carry the burden of proving that
disclosure would constitute a clearly unwarranted invasion of
personal privacy. See Yonemoto, 686 F.3d at 693.
When evaluating an agency’s invocation of an exemption
to FOIA, we “balance the public interest in disclosure against
14
FOIA defines “agency” as “each authority of the Government of the
United States, whether or not it is within or subject to review by another
agency.” 5 U.S.C. § 551(1). There is no dispute that the DOD is an
agency subject to FOIA.
20 CAMERANESI V. U.S. DEP’T OF DEFENSE
the interest Congress intended the [e]xemption to protect.”
Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487,
495 (1994). Our cases establish a two-step test for balancing
individual privacy rights against the public’s right of access.
First, we evaluate the personal privacy interest at stake to
ensure “that disclosure implicates a personal privacy interest
that is nontrivial or . . . more than [] de minimis.” Yonemoto,
686 F.3d at 693 (internal citation and quotation marks
omitted). Second, if the agency succeeds in showing that the
privacy interest at stake is nontrivial, the requester “must
show that the public interest sought to be advanced is a
significant one and that the information [sought] is likely to
advance that interest.” Lane v. Dep’t of Interior, 523 F.3d
1128, 1137 (9th Cir. 2008) (alteration in original) (quoting
Favish, 541 U.S. at 172) (internal quotation marks omitted);
see also Yonemoto, 686 F.3d at 694. “Otherwise, the invasion
of privacy is unwarranted.” Favish, 541 U.S. at 172.
A
We begin with an evaluation of the privacy interests at
stake, which must be “some nontrivial privacy interest in
nondisclosure.” Fed. Labor Relations Auth., 510 U.S. at 501(emphasis omitted). A showing that the interest is more than
de minimis will suffice. See Lahr v. Nat’l Transp. Safety Bd.,
569 F.3d 964, 977 (9th Cir. 2009). “The personal privacy
contemplated by Exemption 6, as well as its law-enforcement
counterpart, Exemption 7(C), . . . is not some limited or
cramped notion of that idea.” Yonemoto, 686 F.3d at 693
(internal citation and quotation marks omitted).15 Rather, a
15
Exemption 7(C) allows withholding “records or information
compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records . . . could reasonably be
CAMERANESI V. U.S. DEP’T OF DEFENSE 21
disclosure implicates personal privacy if it affects either “the
individual’s control of information concerning his or her
person,” Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 763 (1989), or constitutes a “public
intrusion[] long deemed impermissible under the common
law and in our cultural traditions,” Favish, 541 U.S. at 167.16
Disclosures that would subject individuals to possible
embarrassment, harassment, or the risk of mistreatment
constitute nontrivial intrusions into privacy under Exemption
6. See Dep’t of State v. Ray, 502 U.S. 164, 176–77 (1991);
see also Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest
Serv., 524 F.3d 1021, 1025–28 (9th Cir. 2008); Painting
Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep’t of Air
Force, 26 F.3d 1479, 1483 (9th Cir. 1994). In Ray, for
instance, immigration attorneys made a FOIA request for the
disclosure of unredacted versions of interviews that the State
Department had conducted with Haitians who “attempted to
emigrate illegally to the United States and were involuntarily
returned to Haiti.” 502 U.S. at 166. The State Department
had provided copies of the interviews, but had redacted “the
names and other identifying information” of the interview
expected to constitute an unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(7)(C). As we explained in Yonemoto, because both
Exemption 7(C) and Exemption 6 “require balancing the public interest
with personal privacy, cases interpreting the interest in personal privacy
with regard to one of the two exemptions are useful in the context of the
other.” 686 F.3d at 693 n.7 (internal quotation marks omitted). “If a
nontrivial privacy interest is at stake, however, Exemption 7(C) requires
a somewhat higher showing of public interest to overcome it than does
Exemption 6.” Id.
16
Although both Reporters Committee and Favish concern Exemption
7(C), we have previously relied on them to define what makes a privacy
interest “nontrivial.” See Yonemoto, 686 F.3d at 693.
22 CAMERANESI V. U.S. DEP’T OF DEFENSE
subjects. Id. at 169. The Court rejected the plaintiffs’
argument that “any invasion of privacy from the mere act of
disclosure of names and addresses would be de minimis and
little more than speculation.” Id. at 170 (internal quotation
marks omitted). Rather, the Court relied on the State
Department’s explanation that “disclosure of the
interviewees’ identities could subject them or their families
to embarrassment in their social and community
relationships,” and noted that “the State Department
considered the danger of mistreatment sufficiently real to
necessitate” a program to monitor treatment of returnees. Id.
at 176 (internal quotation marks omitted). The Court
acknowledged that “[h]ow significant the danger of
mistreatment may now be is, of course, impossible to
measure,” but nevertheless held that “the privacy interest in
protecting these individuals from any retaliatory action that
might result from a renewed interest in their aborted attempts
to emigrate must be given great weight.” Id. at 176–77.
Although the Court was “not implying that disclosure of a list
of names and other identifying information is inherently and
always a significant threat to the privacy of the individuals on
the list,” it concluded that in this case, “disclosure of the
interviewees’ names would be a significant invasion of their
privacy because it would subject them to possible
embarrassment and retaliatory action.” Id. at 176 n.12.
We have similarly held that the potential for harassment
from third parties gives rise to a cognizable privacy interest.
In Forest Service Employees, we considered a public interest
group’s FOIA request for the names of 23 firefighters who
had participated in fighting a wildfire in which two
firefighters died. 524 F.3d at 1023. We concluded that the
employees had nontrivial privacy interests in the disclosure
of their names because Exemption 6 protected against the
CAMERANESI V. U.S. DEP’T OF DEFENSE 23
“potential for harassment” that “would be presented by the
media, curious neighbors, and the [public interest group]
itself,” which might try to make unwanted contacts with the
employees. Id. at 1026. In so holding, we explained that
“[t]he avoidance of harassment is a cognizable privacy
interest under Exemption 6,” even when the harassment at
issue is merely “unwanted commercial solicitations.” Id.(citing Painting Indus., 26 F.3d at 1483); see also Prudential
Locations LLC v. U.S. Dep’t of Housing and Urban Dev.,
739 F.3d 424, 432 (9th Cir. 2013). Similarly, Lahr noted that
“protection from . . . unwanted contact [by third parties]
facilitated by disclosure of a connection to government
operations and investigations is a cognizable privacy interest”
under Exemption 6. 569 F.3d at 976.
An agency may carry its burden of establishing a
nontrivial privacy interest by showing that the requested
disclosure has “[t]he potential” to result in the sorts of
harassment described in our cases. Lahr, 569 F.3d at 976.
Although “a threat to privacy [that] is conceivable on some
generalized conjectural level is not sufficient to justify
evoking Exemption 6,” Yonemoto, 686 F.3d at 694, “the
invasion of a personal privacy interest may be ‘clearly
unwarranted’ even when the invasion of privacy is far from
a certainty,” Prudential Locations, 739 F.3d at 432. The
Supreme Court has relied on an agency’s reasonable
assessment that disclosure “would subject [the affected
individuals] to possible embarrassment and retaliatory
action,” Ray, 502 U.S. at 176 n.12 (emphases added), and we
have regularly done the same, see Prudential Locations,
739 F.3d at 432 (disclosure “would likely” result in an
invasion of privacy); Forest Serv. Emps., 524 F.3d at 1026(disclosure “may” result in an invasion of privacy).
24 CAMERANESI V. U.S. DEP’T OF DEFENSE
B
If the agency succeeds in showing a nontrivial privacy
interest at step one, we then proceed to step two. At this step,
we balance the individual’s right of privacy against the public
interest in disclosure. Yonemoto, 686 F.3d at 694.
We consider two factors in evaluating the public interest
in disclosure. First, “we examine whether ‘the public interest
sought to be advanced is a significant one’—one ‘more
specific than having the information for its own sake.’” Id.
(quoting Favish, 541 U.S. at 172). Second, we examine
“whether the requested information ‘is likely to advance that
interest.’” Id. (quoting Favish, 541 U.S. at 172); see also
Lane, 523 F.3d at 1137.
In considering whether the public interest is significant,
“the only relevant public interest in the FOIA balancing
analysis is the extent to which disclosure of the information
sought would she[d] light on an agency’s performance of its
statutory duties or otherwise let citizens know what their
government is up to.” Yonemoto, 686 F.3d at 694 (quoting
Bibles v. Or. Nat. Desert Ass’n, 519 U.S. 355, 355–56 (1997)
(per curiam)). The requested information must “contribut[e]
significantly to public understanding of the operations or
activities of the government.’” Forest Serv. Emps., 524 F.3d
at 1025 (alteration in original) (quoting Fed Labor Relations
Auth. 510 U.S. at 495). “In other words, information about
private citizens that is accumulated in various governmental
files but that reveals little or nothing about an agency’s own
conduct is not the type of information to which FOIA permits
access.” Id. (internal quotation marks omitted). We do not
give weight to the FOIA requester’s personal interest in
obtaining information “[b]ecause Congress clearly intended
CAMERANESI V. U.S. DEP’T OF DEFENSE 25
the FOIA to give any member of the public as much right to
disclosure as one with a special interest.” Fed. Labor
Relations Auth., 510 U.S. at 496 (internal quotation marks
omitted).
In examining whether the requested information is likely
to advance a significant public interest, we consider whether
it will “appreciably further the public’s right to monitor the
agency’s action,” Forest Serv. Emps., 524 F.3d at 1027(internal quotation marks omitted). If the information sought
does not “add significantly to the already available
information concerning the manner in which [the agency] has
performed its statutory duties,” we give the public interest
less weight. Prudential Locations, 739 F.3d at 433; see also
Ray, 502 U.S. at 178 (holding that the public interest did not
outweigh a nontrivial privacy interest where obtaining the
names and personal information of the returnees “would not
shed any additional light on the Government’s conduct of its
obligation”). Thus when a FOIA requester sought the
identities of Forest Service employees in order to “conduct its
own investigation” of a fatal fire incident that had already
been investigated by the government, the “marginal
additional usefulness of such information” was not “sufficient
to overcome the privacy interests at stake.” Forest Serv.
Emps., 524 F.3d at 1027 (internal quotation marks omitted).
When a FOIA requester alleges a public interest in
showing “that responsible officials acted negligently or
otherwise improperly in the performance of their duties,”
Favish, 541 U.S. at 174, we are guided by the Supreme
Court’s decisions in Ray and Favish. In Ray, the FOIA
requesters argued that disclosure of the identities of the
Haitian returnees was necessary for “ascertaining the veracity
of the interview reports.” 502 U.S. at 179. The Court
26 CAMERANESI V. U.S. DEP’T OF DEFENSE
rejected this argument, holding that “[w]e generally accord
Government records and official conduct a presumption of
legitimacy,” and that requesters had presented no evidence to
overcome this presumption. Id. Ray expressly reserved the
question of “[w]hat sort of evidence of official misconduct
might be sufficient to identify a genuine public interest in
disclosure.” Id. The Court subsequently answered this
question in Favish, holding that where “the public interest
being asserted is to show that responsible officials acted
negligently or otherwise improperly in the performance of
their duties,” then “the requester must establish more than a
bare suspicion” in order to overcome the presumption of
legitimacy accorded to official conduct. 541 U.S. at 174.
Rather, “the requester must produce evidence that would
warrant a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Id.17
Courts have applied Favish when a FOIA requester
alleges that a governmental investigation is not believable or
that the government has otherwise acted negligently or
improperly in carrying out its statutory duties.18 For instance,
in Forest Service Employees, the requester alleged that the
public interest in obtaining the identities of Forest Service
employees included an interest in “determin[ing] whether the
Forest Service accurately recounted the [fatal fire] incident”
17
If the FOIA requester does not allege any government impropriety,
the Favish reasonable belief standard may be inapplicable. See Citizens
for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d
1082, 1094–95 (D.C. Cir. 2014).
18
The dissent therefore errs in suggesting that Favish’s holding is
limited to cases where the FOIA requester seeks “materials related to the
alleged mishandling of an investigation into one isolated incident.”
Dissent at 44.
CAMERANESI V. U.S. DEP’T OF DEFENSE 27
in its investigative report, and “to reconcile inconsistencies.”
Forest Serv. Emps, 524 F.3d at 1027 (internal quotation
marks omitted). We gave this interest little weight because
“[w]e generally accord government records a ‘presumption of
legitimacy,’” id. at 1028 (quoting Favish, 541 U.S. at 174),
and there was not enough evidence in the record that “direct
contact with the employees would produce any information
that has not already been revealed to the public,” id. (citing
Ray, 502 U.S. at 178–79). In Associated Press v. U.S.
Department of Defense, a FOIA requester argued that it
needed the identities of the detainees discussed in a DOD
report investigating allegations of detainee abuse at
Guantanamo Bay Naval Base in order to determine whether
the DOD “responded differently to allegations of abuse
depending on the nationalities or religions of the abused
detainees.” 554 F.3d 274, 289 (2d Cir. 2009). The Second
Circuit held that this argument was “squarely foreclosed by
Favish,” because “there is no evidence of government
impropriety.” Id. In Union Leader Corp. v. U.S. Department
of Homeland Security, a FOIA requester sought the identities
of aliens who had been arrested by the government in 2011.
749 F.3d 45, 48 (1st Cir. 2014). The First Circuit held there
was a public interest in the aliens’ identities because of
evidence that the aliens had previously committed crimes or
been ordered removed, but nevertheless had remained in the
United States for years before their 2011 arrests. Id. at 56.
Such evidence was “at least enough to warrant a reasonable
belief ‘that the alleged Government impropriety might have
occurred.’” Id. (quoting Favish, 541 U.S. at 174) (emphasis
omitted).
28 CAMERANESI V. U.S. DEP’T OF DEFENSE
IV
We now apply this two-step test to determine whether
disclosing the names of foreign WHINSEC students and
instructors “would constitute a clearly unwarranted invasion
of personal privacy” for purposes of Exemption 6. 5 U.S.C.
§ 552(b)(6).
A
We first consider whether disclosure of the names and
units of foreign WHINSEC students and instructors
implicates a nontrivial privacy interest. See Yonemoto,
686 F.3d at 693. We give little weight to the district court’s
ruling that DOD failed to establish that WHINSEC students
and instructors had “a substantial privacy interest in their
names and military units” because the district court applied
the wrong legal standard; it should have considered whether
nontrivial privacy interests, rather than substantial privacy
interests, were at stake.
Here, the evidence submitted by the DOD demonstrated
that disclosure of the identities of foreign WHINSEC students
and instructors would give rise to possible harassment,
stigma, or violence as a result of their association with the
United States—exactly the sorts of risks that courts have
recognized as nontrivial in previous cases. See Ray, 502 U.S.
at 176–77 & n.12; Lahr, 569 F.3d at 975–76; Forest Serv.
Emps., 524 F.3d at 1025–28; Painting Indus., 26 F.3d at
1483. The DOD submitted sufficient evidence to substantiate
this nontrivial risk, see Lewis v. IRS, 823 F.2d 375, 378 (9th
Cir. 1987), including Rials’s affidavits and the testimony of
two United States generals.
CAMERANESI V. U.S. DEP’T OF DEFENSE 29
The plaintiffs argue that the evidence of risks faced by the
WHINSEC students and instructors should be disregarded as
overly speculative. We disagree. We have never held that an
agency must document that harassment or mistreatment have
happened in the past or will certainly happen in the future;
rather, the agency must merely establish that disclosure
would result in a “potential for harassment.” Forest Serv.
Emps., 524 F.3d at 1026. Here, the government’s affidavits
set forth its conclusion that foreign military and law
enforcement personnel who are publicly associated with the
United States would be subject to possible mistreatment or
attack. See Ray, 502 U.S. at 176 n.12. The same concerns
rationally underlay the DOD’s decision to protect the identity
of U.S. law enforcement and military personnel from FOIA
requests. See 32 C.F.R. § 518.13(f)(2); see also id.§ 286.12(f)(2) (providing that DOD will not disclose the
“names and duty addresses” of United States “military and
civilian personnel who are assigned to units that are sensitive,
routinely deployable, or stationed in foreign territories”
because such disclosure “can constitute a clearly unwarranted
invasion of personal privacy”). Given its affidavits and other
evidence in the record, the government carried its burden of
showing that foreign law enforcement and military personnel
would face similar risks if their identities were revealed, and
therefore established that WHINSEC students and instructors
have a nontrivial privacy interest. See Prudential Locations,
739 F.3d at 432; Lahr, 569 F.3d at 977; Forest Serv. Emps.,
524 F.3d at 1026.
The district court also erred in holding that the
WHINSEC students and instructors lacked a nontrivial
privacy interest because the DOD had not promised
confidentiality. As a legal matter, “an assurance of
confidentiality from the government” is not a necessary
30 CAMERANESI V. U.S. DEP’T OF DEFENSE
condition “for the existence of a cognizable personal privacy
interest under Exemption 6.” Prudential Locations, 739 F.3d
at 431–32. Moreover, the court’s conclusion that WHINSEC
students and instructors do not have a reasonable expectation
of privacy is not supported by the record. The DOD has not
disclosed the names of WHINSEC students since 2004 and
likewise redacts the names of WHINSEC students from
public documents. Any disclosures are now made only with
the consent of the students or the sending nation. A majority
of foreign countries that send students to WHINSEC rely on
the DOD’s current disclosure practices and oppose public
disclosure of the identities of their students and instructors.
Further, the DOD exercised its discretion to ensure that no
disclosures would be made in response to Congress’s
requirement that the DOD disclose the names of WHINSEC
students in 2009 and 2010, and Congress chose not to reenact
this requirement. Under these circumstances, students and
instructors at WHINSEC could reasonably conclude that their
identities would not be disclosed without their permission.
Accordingly, we conclude that the affidavits and other
evidence submitted by the DOD are sufficient to carry the
DOD’s burden to establish that disclosure of the requested
information gives rise to a nontrivial risk of harassment and
mistreatment.
B
At step two, we balance the privacy interests identified at
the first step against the public interest favoring disclosure.
In order to conduct this balancing, we begin by identifying
the public interest at issue, focusing on the “only relevant
public interest under Exemption 6,” which is “the extent to
which the information sought would she[d] light on an
CAMERANESI V. U.S. DEP’T OF DEFENSE 31
agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to.” Forest Serv.
Emps., 524 F.3d at 1027 (internal quotation marks omitted).
Plaintiffs first argue that obtaining the identities of the
WHINSEC students and instructors would shed light on the
DOD’s performance of two statutory duties. As previously
noted, the DOD is required to deny assistance, including
WHINSEC training, to any “unit of a foreign security force
if the Secretary of Defense has credible information that the
unit has committed a gross violation of human rights.”
10 U.S.C. § 2249e(a). The DOD must also “ensure that when
an individual is designated to receive United States training,
equipment, or other types of assistance [including WHINSEC
training] the individual’s unit is vetted as well as the
individual.” 22 U.S.C. § 2378d(d)(5). But this second
statutory obligation is imposed only on the Secretary of State,
who was not the recipient of the plaintiffs’ FOIA request, and
Congress assigned the DOD only the correlative obligation to
consult with the State Department regarding information on
units that have committed human rights violations. 10 U.S.C.
§ 2249e(a). Nevertheless, we will assume for the sake of
argument that DOD’s obligation to consult with the State
Department is analogous to the State Department’s obligation
to screen potential students at WHINSEC, and that both
obligations are meant to ensure that members of a foreign
security unit that has engaged in human rights abuses (and by
extension, individuals who have themselves engaged in
human rights violations) are not allowed to participate in
WHINSEC training.
According to plaintiffs, obtaining the identities of the
WHINSEC students and instructors would allow them to
disclose deficiencies in the vetting process required by these
32 CAMERANESI V. U.S. DEP’T OF DEFENSE
statutes. But disclosure of these identities would not
“contribut[e] significantly to public understanding of the
operations or activities of the government,” Forest Serv.
Emps., 524 F.3d at 1024–25 (quoting Fed. Labor Relations
Auth., 510 U.S. at 495), because the government already has
an investigative process in place to review the vetting
process, and information regarding the effectiveness of the
Department of State’s procedures for vetting prospective
trainees is available to the public through the Board of
Visitors’s public reports. See 10 U.S.C. § 2166(e)(5). Given
this ongoing review of DOD compliance, the disclosure of the
names of all students and instructors at WHINSEC would not
have significant “marginal additional usefulness,” Forest
Serv. Emps., 524 F.3d at 1027–28, or “add significantly to the
already available information concerning the manner in
which [the agency] has performed its statutory duties,”
Prudential Locations, 739 F.3d at 433.
Plaintiffs separately contend that the government has
improperly performed its vetting duties, and submit an
affidavit identifying two instances where the Secretary of
State mistakenly allowed individuals who had allegedly
participated in human rights abuses to attend the school.19
Although we agree there is a public interest in identifying
government impropriety in performing its statutory duties,
allegations of two errors among the thousands of students that
trained at WHINSEC from 2001 through 2004 does not
19
One individual allegedly commanded a unit that beat and shot 16
members of an indigenous organization in 1983 and then was allowed to
attend WHINSEC in 2003. A second individual was allegedly responsible
for the kidnapping and torture of a human rights organizer in 1997 and
then attended WHINSEC in 2002. SOAW also points to three students
who attended WHINSEC while under official investigation for corruption,
which is not alleged to be a human rights abuse.
CAMERANESI V. U.S. DEP’T OF DEFENSE 33
amount to a “meaningful evidentiary showing” that would
lead to “a belief by a reasonable person that the alleged
Government impropriety might have occurred.” Favish,
541 U.S. at 174–75; see also Union Leader Corp., 749 F.3d
at 56; Associated Press, 554 F.3d at 285.
Second, plaintiffs contend that they can use the names of
WHINSEC students to track their conduct after they have
received their training. According to plaintiffs, this will
further the public interest in understanding the agency’s
performance of its statutory duties and in letting the public
know what their government is up to because if WHINSEC
attendees violate human rights once they return to their
service in foreign governments, it shows that WHINSEC
human rights training is not effective. We disagree that the
requested information will “appreciably further the citizens’
right to be informed about what their government is up to.”
Fed. Labor Relations Auth., 510 U.S. at 497 (internal
quotation marks omitted). The government has monitored
WHINSEC’s compliance with its statutory obligation to
provide its students mandatory instruction on human rights,
10 U.S.C. § 2166(d)(1), and the publicly available reports
from the Board of Visitors and Secretary of Defense make
clear that WHINSEC is exceeding congressional
requirements in this area. The Board of Visitors regularly
monitors, reports on, and makes recommendations for
improvements to WHINSEC’s curriculum. Id.§ 2166(e)(4)(A); see also Memorandum from Matthew D.
Anderson & Robert C. Morlino, WHINSEC BoV, on
Curriculum Review of WHINSEC (July 13, 2007) (Annex 3
in Sec’y of Def., Annual Report to Cong. on the Activities of
the Western Hemisphere Institute for Security Cooperation 19
(2007)).
34 CAMERANESI V. U.S. DEP’T OF DEFENSE
Moreover, the relationship between WHINSEC’s
obligation to provide human rights training to WHINSEC
students and the subsequent conduct of foreign law
enforcement or military personnel, perhaps years after their
training at WHINSEC, is tenuous at best. Even if individual
attendees are later alleged to engage in human rights abuses,
such subsequent incidents are unlikely to shed light on what
the government is currently up to at WHINSEC. Given the
Board of Visitors’s responsibility for monitoring and
reporting on WHINSEC’s curriculum, the disclosure of the
names of all foreign students and instructors at WHINSEC
would not “add significantly to the already available
information concerning the manner in which [the agency] has
performed its statutory duties,” Prudential Locations,
739 F.3d at 433, or “appreciably further the public’s right to
monitor the agency’s action,” Forest Serv. Emps., 524 F.3d
at 1027. The Supreme Court has ruled that the purposes of
FOIA are not fostered by disclosure of information about
private individuals that “reveals little or nothing about an
agency’s own conduct.” Reporters Comm. for Freedom of
Press, 489 U.S. at 773.
Having defined the public interest at stake, we now weigh
it against the privacy interest of the WHINSEC students and
instructors. The DOD has presented evidence that disclosing
the names of WHINSEC students and instructors would put
them at risk of harassment, retaliation, or even death. Where
serious privacy interests are present on one side of the
balance, the public’s marginal interests will not be enough to
require disclosure. Forest Serv. Emps., 524 F.3d at 1027.
Because any incremental value stemming from the disclosure
of the identities of WHINSEC students and instructors is
small, the public interest in this case does not outweigh the
serious risks that would result from disclosure. We therefore
CAMERANESI V. U.S. DEP’T OF DEFENSE 35
conclude that disclosure would give rise to a “clearly
unwarranted” invasion of privacy and that the information
requested by plaintiffs is exempt from disclosure under
Exemption 6 of FOIA.
The dissent disagrees with our application of the FOIA
balancing test because it is not persuaded by the
government’s reasons for instituting a new policy to withhold
the names of students and instructors in 2005. The dissent
argues that because the DOD disclosed the names of SOA
and WHINSEC students and instructors until 2004, it must
“provide a satisfactory explanation” for its change in policy
in order to invoke Exemption 6. Dissent at 47.
The dissent’s analysis is wrong for several reasons. Most
important, FOIA does not impose a duty on the government
to provide a satisfactory explanation of a change in its policy;
rather, it merely requires us to decide on the record before us
whether disclosure of the requested information would give
rise to a “clearly unwarranted” invasion of privacy. 5 U.S.C.
§ 552(b)(6). Here, the record demonstrates that disclosure
would do so. Applying simple common sense, there is no
question that there are many groups in foreign countries that
would seek to harm those who are publicly associated with
the United States military. Even the dissent concedes that
these risks are real. Dissent at 37, 47. These risks outweigh
the public interest in disclosure here and are therefore
sufficient to justify withholding under Exemption 6.
But even if we were to evaluate the government’s
explanation of its policy decision, we disagree with the
dissent’s view that the government did “not provide a
satisfactory explanation.” Dissent at 47. The government
explained that the DOD circulated an internal memorandum
36 CAMERANESI V. U.S. DEP’T OF DEFENSE
changing its policies regarding disclosure of the names of
defense personnel two months after the terrorist attacks of
September 11, 2001, and realized that international personnel
should be accorded the same protection some years later. In
our view, a government bureaucracy’s failure to demonstrate
speed and efficiency in applying a policy issued in one
context to a related but different context does not raise the
inference that the government is hiding the true reasons for
that policy. Indeed, it took the DOD five years to formalize
its policy regarding American military personnel after it
circulated its informal memo. See 32 C.F.R. § 518.13(f)(2);
see also The Freedom of Information Act Program, 71 Fed.
Reg. 9222, 9232 (Feb. 22, 2006).20
20
The dissent also speculates that the threats facing WHINSEC
students and instructors were “undoubtedly” present during the decade
from 1994 to 2004, and so infers that it would be unreasonable for the
government to change its nondisclosure policy starting in 2005. Dissent
at 47–48. There is no support in the record for this speculation, and it is
equally likely that escalating violence influenced the government’s
decision to change its nondisclosure policy in 2005. See, e.g., Mary
Jordan & Kevin Sullivan, Border Police Chief Only Latest Casualty in
Mexico Drug War, Wash. Post, June 16, 2005 (reporting on Mexico’s
“worst barrage of drug-related violence in years” and noting that an
“increasing number” of victims of drug violence are “public servants” who
“stood up to organized crime”); Ginger Thompson & James C. McKinley,
Jr., Mexico’s Drug Cartels Wage Fierce Battle for Their Turf, N.Y. Times,
Jan. 14. 2005 (noting that while in “the last four years” Mexico had made
advances in its fight against drug cartels, a new wave of drug related
killings showed that cartel leaders had begun to regroup, and noting that
at least 34 people, including three federal agents and two journalists, had
been assassinated in the last six months of 2004).
CAMERANESI V. U.S. DEP’T OF DEFENSE 37
Because disclosing the names of WHINSEC students and
instructors would give rise to a “clearly unwarranted”
invasion of privacy, those names are therefore exempt from
disclosure under Exemption 6 of FOIA.
REVERSED.
WATFORD, Circuit Judge, dissenting:
The Department of Defense has shown that the Western
Hemisphere Institute for Security Cooperation’s foreign
students and instructors have a non-trivial privacy interest in
keeping their identities secret. Disclosing their names to the
public would reveal their affiliation with the Institute, which
might expose them to the risk of harassment or violence when
they return to their home countries. But the question remains
under Exemption 6 of the Freedom of Information Act
(FOIA) whether that invasion of privacy would be “clearly
unwarranted.” 5 U.S.C. § 552(b)(6). To answer that
question, we must balance the privacy interests at stake
against the public interest in disclosure protected by
FOIA—namely, “the citizens’ right to be informed about
‘what their government is up to,’” which encompasses
“[o]fficial information that sheds light on an agency’s
performance of its statutory duties.” Department of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S.
749, 773 (1989). In my view, on the thin evidentiary record
presented here, the Department of Defense did not carry its
burden of demonstrating that the students’ and instructors’
privacy interests outweigh the strong public interest in
disclosure of their names.
38 CAMERANESI V. U.S. DEP’T OF DEFENSE
I
Let’s start with the public interest in disclosure, which
requires a little bit of background. The Institute is operated
by the Army at Fort Benning, Georgia. It was established in
2001, but it is actually a continuation of the School of the
Americas (SOA), which opened its doors under a different
name in 1946 and moved to Fort Benning in the 1980s. SOA
became the subject of considerable controversy after the 1989
massacre of six Jesuit priests in El Salvador during that
country’s civil war. It turned out that 19 of the soldiers
involved in the massacre had received training at SOA.
That incident was not an anomaly. After the Army began
releasing the names of former SOA students and instructors
in 1994 as a result of FOIA requests, human rights activists
linked the school’s attendees to a host of notorious crimes. A
few examples: SOA graduates were implicated in additional
atrocities committed during the civil war in El Salvador,
including the assassination of Archbishop Oscar Romero, the
execution of four American churchwomen, and the massacre
of hundreds of civilians in the village of El Mozote. A
Guatemalan colonel who attended SOA was accused of
murdering, six months after graduating, an American
innkeeper in Guatemala in 1990. Six Peruvian SOA
graduates were connected to the killings of nine students and
a professor in Peru in 1992. In addition, SOA counted among
its alumni Salvadoran death-squad leader Roberto
D’Aubuisson; Bolivian strongman Hugo Banzer Suarez;
Panamanian dictator and convicted drug-trafficker Manuel
Noriega; Argentine dictators and “dirty war” culprits Roberto
Viola and Leopoldo Galtieri; and Ecuador’s Guillermo
Rodriguez and Peru’s Juan Velasco Alvarado, both of whom
toppled democratically elected governments. See H.R. 732,
CAMERANESI V. U.S. DEP’T OF DEFENSE 39
106th Cong. (1999); Richard F. Grimmett & Mark P.
Sullivan, Congressional Research Service, U.S. Army School
of the Americas: Background and Congressional Concerns
3–4 (2001); Eric Schmitt, School for Assassins, or Aid to
Latin Democracy?, N.Y. Times, Apr. 3, 1995, at A8.
The Army cautioned, rightly, that these incidents were not
representative of the vast majority of SOA attendees,
although it did not disclaim them entirely. A spokesman for
the school responded to the criticism in 1995 by observing
that “[o]ut of 59,000 students who have graduated from a
variety of programs, less than 300 have been cited for human
rights violations like torture and murder, and less than 50
have been convicted of anything.” Schmitt, School for
Assassins, at A8. However, the controversy escalated in 1996
when the Pentagon released excerpts of training manuals
previously used at SOA that provided instruction on torturing
and executing insurgents. See Dana Priest, U.S. Instructed
Latins on Executions, Torture, Wash. Post, Sept. 21, 1996, at
A1.
In 1997, Congress began imposing legislative restrictions
on the school’s operations. It enacted what became known as
the Leahy Amendment, which barred the military from
assisting any foreign security unit credibly believed to have
committed human rights abuses unless that unit’s government
had taken steps to bring the responsible parties to justice. See
Foreign Operations, Export Financing, and Related Programs
Appropriations Act for Fiscal Year 1998, Pub. L. No. 105-
118, § 570, 111 Stat. 2386, 2429 (1997). Congress also
barred funding for SOA unless the Secretary of Defense
certified that the training provided at the school was
consistent with that provided to U.S. personnel at other
military institutions, “particularly with respect to the
40 CAMERANESI V. U.S. DEP’T OF DEFENSE
observance of human rights.” Id. at 2401. The intended
effect of these provisions was to preclude Latin American
military and law-enforcement personnel from attending SOA
if their units had engaged in past human rights abuses, and to
ensure that the school’s attendees were not trained in ways
that might contribute to human rights abuses after they
returned to their home countries. The Leahy Amendment and
the certification requirement did not quiet the outcry over
SOA. In 1999, the House of Representatives passed an
amendment by a vote of 230–197 that would have closed
SOA altogether. See 145 Cong. Rec. 18716–26, 18737
(1999).
In response to this congressional action, the Army
pledged curricular changes and increased civilian
participation at the school, and these proposed changes
succeeded in staving off the school’s closure. In 2000, rather
than close SOA, Congress decided to impose reform
measures. Congress required the school to include instruction
for all students on respect for human rights and principles of
democratic governance, and mandated oversight of the school
by a Board of Visitors composed primarily of civilians and
civilian-designees. See National Defense Authorization Act
for Fiscal Year 2001, Pub. L. No. 106-398, § 911, 114 Stat.
1654, 1654A-226–28 (2000) (codified at 10 U.S.C. § 2166).
To avoid association with SOA’s controversial past, it was
thought best to rename the school going forward. Beginning
in early 2001, the school began operating under its new name:
the Western Hemisphere Institute for Security Cooperation.
That background is relevant to understanding the strength
of the public interest in disclosure involved here. Disclosing
the names of the Institute’s foreign students and instructors is
necessary to allow citizens to remain informed about “what
CAMERANESI V. U.S. DEP’T OF DEFENSE 41
their government is up to.” For example, without the names,
the public has no way of determining whether the issues that
led to the school’s near closure have been adequately
addressed. Is the Army in fact barring attendance of foreign
military and law-enforcement personnel who belong to units
with records of human rights abuses? Or are such individuals
continuing to receive training at the Institute at taxpayer
expense? Have the new curricular requirements been
effective in instilling the importance of respect for human
rights and democratic values? Or are students trained at the
Institute continuing to commit human rights abuses upon
returning to their home countries? These are not idle
questions given the school’s checkered history. Because the
Institute remained in operation only after Congress mandated
reforms designed to fix the problems that formerly plagued
the school, the public has a strong ongoing interest in
assessing whether those measures are working.
Beyond advancing this more general interest, disclosing
the names of the Institute’s foreign students and instructors
would also shed light on how well the Departments of
Defense and State are performing their statutory duties. See
Reporters Committee, 489 U.S. at 773. Under the current
version of the Leahy Amendment, the government may not
train, equip, or otherwise assist any “unit” of a foreign
security force if the unit has committed “a gross violation of
human rights.” 10 U.S.C. § 2249e(a)(1); 22 U.S.C.
§ 2378d(a). This restriction imposes specific duties upon the
Departments of Defense and State. The Defense Department
is expressly barred from spending funds on the proscribed
foreign assistance, and prior to aiding a foreign security unit,
the Secretary of Defense must consult with the Secretary of
State regarding “any credible information available to the
Department of State relating to human rights violations by
42 CAMERANESI V. U.S. DEP’T OF DEFENSE
such unit.” 10 U.S.C. § 2249e(a). In turn, the Secretary of
State must “ensure that when an individual is designated to
receive United States training, equipment, or other types of
assistance the individual’s unit is vetted as well as the
individual.” 22 U.S.C. § 2378d(d)(5). Disclosure of the
names of the Institute’s foreign students would allow the
public to assess the State Department’s performance of its
vetting functions, as well as the Defense Department’s
performance of its duty to consult with the State Department
and to refrain from training any units with suspect human
rights records.
II
The strength of the public interest in disclosure is what
distinguishes this case from the cases on which the
Department of Defense relies to justify its invocation of
Exemption 6. In those cases, the courts struck the balance in
favor of protecting privacy interests because the public
interest in disclosure was either non-existent or exceptionally
weak.
In the first set of cases, there was simply no cognizable
public interest in disclosure at all. See Bibles v. Oregon
Natural Desert Association, 519 U.S. 355, 355–56 (1997)
(per curiam); Department of Defense v. FLRA, 510 U.S. 487,
497–98 (1994); Reporters Committee, 489 U.S. at 774–75.
The requested information revealed “little or nothing” about
the relevant government agencies or their activities, and
therefore could not “appreciably further the citizens’ right to
be informed about what their government is up to.” FLRA,
510 U.S. at 497 (internal quotation marks omitted). For the
reasons just explained, the same cannot be said about the
information requested by the plaintiffs in this case.
CAMERANESI V. U.S. DEP’T OF DEFENSE 43
In the second set of cases, the courts held that although a
cognizable public interest in disclosure existed, it was
adequately served by the wealth of information the
government had already made publicly available. See
Department of State v. Ray, 502 U.S. 164, 178 (1991);
Prudential Locations LLC v. HUD, 739 F.3d 424, 433 (9th
Cir. 2013) (per curiam); Forest Service Employees for
Environmental Ethics v. U.S. Forest Service, 524 F.3d 1021,
1028 (9th Cir. 2008). In those cases, obtaining the additional
information sought by the requesters (the names of particular
individuals) would not have shed any light on the operations
or activities of the government. Here, by contrast, without
obtaining the foreign students’ and instructors’ names, the
public cannot exercise its right to remain informed about the
Army’s operation of the Institute or assess how well the
Departments of State and Defense are performing their
statutory duties.
The majority asserts that annual reports produced by the
Institute’s Board of Visitors, as well as those issued by the
Department of Defense itself, are adequate for these purposes,
see Maj. op. at 32, 33, 34, but in truth the reports are utterly
useless in this regard. They merely provide general
conclusions about the Army’s operation of the Institute and
the government’s vetting of its attendees, not the underlying
information necessary to determine whether those
conclusions are correct.1 Without knowing the actual names
of those allowed to attend the Institute, the public has no way
of independently verifying whether students are properly
vetted before enrolling at the Institute, or whether after
graduating they engage in human rights abuses in their home
1
The Board of Visitors’ reports are available at
https://database.faca.gov/committee/histories.aspx?cid=1860&fy=2002.
44 CAMERANESI V. U.S. DEP’T OF DEFENSE
countries. As the majority would have it, the public must
simply take the government’s word for it that the reform
measures mandated by Congress have been effective. This
fox-guarding-the-henhouse notion is, of course, completely
antithetical to FOIA’s core purpose.
Finally, in the last set of cases, the requesters alleged that,
in the course of investigating an isolated incident, the
government had either engaged in a cover-up or conducted an
insufficiently thorough investigation. See National Archives
and Records Administration v. Favish, 541 U.S. 157, 160–61
(2004) (requester alleged that Vince Foster’s death was not
actually a suicide); Lahr v. National Transportation Safety
Board, 569 F.3d 964, 969 (9th Cir. 2009) (requester alleged
that TWA Flight 800 did not crash; it was shot down by the
military); Lane v. Department of the Interior, 523 F.3d 1128,
1131–33 (9th Cir. 2008) (requester alleged that her former
supervisor had in fact threatened a fellow employee with a
gun, contrary to the conclusion reached by investigators). In
that narrow context, when the asserted public interest rests on
showing that “the investigative agency or other responsible
officials acted negligently or otherwise improperly in the
performance of their duties,” the requester must produce at
least some evidence of government impropriety to
substantiate the public interest claim. Favish, 541 U.S. at173–74.
The majority’s reliance on this last set of cases is
misplaced for two reasons. First, the standard established in
those cases does not apply here. The plaintiffs are not
seeking materials related to the alleged mishandling of an
investigation into one isolated incident, the only context in
which the Supreme Court and our court have applied the
Favish standard. Rather, they are seeking information
CAMERANESI V. U.S. DEP’T OF DEFENSE 45
relevant to assessing government activities of a programmatic
nature, a context in which the Supreme Court has held that a
strong public interest in disclosure exists without any
showing of government impropriety. See Department of the
Air Force v. Rose, 425 U.S. 352, 368 (1976). But even under
the majority’s reading of Favish, the standard established in
that case does not apply here because the plaintiffs are not
merely seeking information about whether an agency “acted
negligently or improperly in carrying out its statutory duties.”
Maj. op. at 26. They are also seeking information necessary
to determine whether students who attend the Institute
commit human rights abuses or other misconduct after
returning to their home countries. As the majority itself
acknowledges, that interest is in no way tied to the interest in
monitoring whether the Departments of Defense and State are
properly carrying out their statutory duties. Maj. op. at 34.
Second, even if the plaintiffs were required under Favish
to make a threshold evidentiary showing, they have done so.
The plaintiffs would merely need to establish “more than a
bare suspicion” of impropriety—in other words, “evidence
that would warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.”
Favish, 541 U.S. at 174. The plaintiffs have easily satisfied
that standard by pointing to the troubled history of SOA,
which led Congress to acknowledge a need for new vetting
and oversight procedures. The majority simply ignores the
relevance of this pre-2001 history. Yet it is precisely because
of the problems that plagued the Institute’s predecessor that
the public has such a strong interest in determining whether
or not the reforms implemented to correct those problems
have been effective.
46 CAMERANESI V. U.S. DEP’T OF DEFENSE
III
What I have shown thus far, I hope, is that the public
interest in disclosure is much stronger than the majority is
willing to allow. But what about the privacy interests at
stake? Are they strong enough to outweigh the public interest
in disclosure? That depends on how grave we believe the risk
of harm to the foreign students and instructors might be if
their names are disclosed. Ordinarily, I would be inclined to
give considerable deference to the judgment of military
officials about the gravity of the risks posed by disclosure of
potentially sensitive information. The reason I think we
should be more skeptical here is that the military itself
determined for a decade, from 1994 to 2004, that the risks of
disclosure were not sufficiently compelling to justify
withholding the names under Exemption 6. During this
period, the Army disclosed not only the names of all foreign
students and instructors who attended the Institute each year,
but also the names of all foreign students and instructors who
had attended the Institute and its predecessor dating back to
1946—some 60,000 names in all.
It would be one thing if the Department of Defense had
informed us that its risk assessment changed in 2005 because
a foreign student or instructor had been targeted for
harassment or violence due to his affiliation with the Institute.
That would make it easy to understand the Department’s
about-face. But here, the Defense Department pointed to no
such event, and indeed, so far as the record discloses, none of
the 60,000 individuals whose names have been publicly
released has ever been the target of harassment or violence
based on their having attended the Institute or its predecessor.
CAMERANESI V. U.S. DEP’T OF DEFENSE 47
The Department of Defense is certainly correct in arguing
that it is not required to show some past incident of harm in
order to invoke Exemption 6 as a basis for non-disclosure.
But in light of the history involved here, I think we are
entitled to demand from the Department some explanation for
why it is now saying that the risks of disclosure are too great
when apparently it did not believe that to be true before.
Otherwise, we are simply rubber-stamping the government’s
decision.
The declarations submitted by the Department of Defense
do not provide a satisfactory explanation (or frankly any
explanation at all). The Department provided just two short
declarations from a public affairs staffer at the Institute
named Lee Rials. Attached to one of his declarations is a
transcript of testimony given by two generals at a 2010
congressional hearing devoted to other subjects during which
the generals answered a single question about the Institute.
(This is the congressional testimony to which the majority
refers. See Maj. op. at 15–16.) The Rials declarations assert,
based on “Defense Intelligence Agency assessments” which
the government chose not to submit, that disclosure of the
foreign students’ and instructors’ names would increase the
risk of retaliation from three sources: (1) “the intelligence and
security apparatuses of countries hostile to U.S. interests”;
(2) “terrorist organizations operating in the Western
Hemisphere”; and (3) “drug trafficking organizations
operating in the Western Hemisphere.” But the risks of
retaliation from these sources were undoubtedly present
during the 1994–2004 time period as well. They did not just
pop up beginning in 2005. Rials’ declarations offer no
explanation for why the military has determined that those
risks had increased sufficiently by 2005 to warrant striking a
48 CAMERANESI V. U.S. DEP’T OF DEFENSE
different balance between privacy interests and the public
interest in disclosure.2
At oral argument, the government’s lawyer asserted that
the terrorist attacks of September 11, 2001, caused the
Department of Defense to reassess its prior policy of
disclosing the names. The main problem with that
explanation: It appears nowhere in the declarations the
government submitted. Neither the Rials declarations nor the
testimony from the two generals mentions the September 11
attacks. The government did submit a copy of a November
2001 Defense Department memo that announced, in light of
the recent attacks, a new policy with respect to “DoD
personnel” of withholding “lists of names and other
personally identifying information.” However, Rials did not
cite this memo in explaining the Department of Defense’s
2005 decision to stop disclosing the names of the Institute’s
foreign students and instructors, and the government failed to
offer any other declaration—let alone one from a military
officer—explaining the memo’s role in the 2005 decision-
making process.
The link between the November 2001 memo regarding
“DoD personnel” and the Army’s 2005 decision to stop
2
The majority’s only response to this point is to speculate that “it is
equally likely that escalating violence influenced the government’s
decision to change its nondisclosure policy in 2005.” Maj. op. at 36 n.20.
The problem with this response is just that—it is predicated entirely on
speculation. The majority cannot identify any evidence in the record of
escalating violence that would justify the Defense Department’s
withholding decision in 2005 because the Department submitted no such
evidence. And because the government bears the burden of establishing
a basis for withholding under Exemption 6, that dearth of evidence is fatal
to its claim. See Ray, 502 U.S. at 173.
CAMERANESI V. U.S. DEP’T OF DEFENSE 49
disclosing the names of foreign military personnel attending
the Institute is not so obvious that we can assume a
connection without any supporting evidence. For one thing,
it is not by any means clear that the memo was intended to
apply to foreign students and instructors at a U.S. military
training school; the memo’s focus appears to be on protecting
the identities of U.S. military personnel, who would be
obvious targets for attack in the wake of September 11. Had
the memo also been intended to cover foreign students and
instructors at the Institute, it is inconceivable that the Army
would have continued to disclose their names in response to
FOIA requests for more than three years after the memo’s
issuance, which is what happened here. For another thing,
the November 2001 memo relied on an Exemption 6
balancing analysis (under which privacy interests were
deemed to prevail), but that analysis is quite different for the
two groups of personnel. The public interest in knowing
which foreign students our government chooses to train
militarily and what comes of that training is much stronger
than any public interest that might exist in the disclosure of
the identities of U.S. military personnel.
* * *
Under FOIA, Congress has established a “strong
presumption in favor of disclosure,” and it has placed “the
burden on the agency to justify the withholding of any
requested documents.” Ray, 502 U.S. at 173. Had the
government provided a sturdier evidentiary foundation for its
decision to withhold the requested information, I would have
readily agreed with my colleagues’ resolution of this appeal.
On this record, though, I think we are compelled to reject the
government’s invocation of Exemption 6. I would therefore
affirm the district court’s decision.