Forest Service Employees for Environmental Ethics v. United States Forest Service ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOREST SERVICE EMPLOYEES FOR 
ENVIRONMENTAL ETHICS,
Plaintiff-Appellant, No. 05-36221
v.
 D.C. No.
CV-05-06015-MRH
UNITED STATES FOREST SERVICE, an
agency of the U.S. Department of OPINION
Agriculture,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted
December 6, 2007—Portland, Oregon
Filed May 1, 2008
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain
4705
4708 FOREST SERVICE EMPLOYEES v. USFS
COUNSEL
David A. Barr, Western Environmental Law Center, Eugene,
Oregon, argued the cause for the plaintiff-appellant and filed
briefs.
Steve Frank, Appellate Staff, Civil Division, United States
Department of Justice, Washington, DC, argued the cause for
the defendant-appellee and filed a brief; Leonard Schaitman,
Appellate Staff, Civil Division, United States Department of
Justice, Washington DC, Karen J. Immergut, United States
Attorney, Portland, Oregon, and Peter D. Keisler, Assistant
Attorney General, United States Department of Justice, Wash-
ington, DC, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether the United States
Forest Service must publicly release the identities of agency
personnel who responded to a wildfire that killed two Forest
Service employees.
I
On July 20, 2003, the Forest Service engaged a wildfire in
the Salmon-Challis National Forest in Idaho, which would
later become known as the “Cramer Fire.” Two days later,
FOREST SERVICE EMPLOYEES v. USFS 4709
Forest Service firefighters Shane Heath and Jeff Allen per-
ished as they fought the blaze.
Four federal agencies investigated the incident: The Occu-
pational Safety and Health Administration (“OSHA”), the
Office of the Inspector General of the Department of Agricul-
ture (“OIG”), the United States Attorney for the District of
Idaho, and the Forest Service itself. OSHA issued multiple
citations against the Forest Service for creating unsafe work-
ing conditions and issued a 45-page report criticizing the
agency’s response to the fire. The OIG released a 12-page
report which was similarly critical of the Forest Service’s
actions. In addition, the United States Attorney filed criminal
charges against Incident Commander Alan Hackett, who led
the team that fought the fire. Finally, the Forest Service con-
ducted its own investigation and produced an accident report
(the “Cramer Fire Report”). The report contained a detailed
narrative of the agency’s response to the fire as well as find-
ings that the Forest Service’s own management failings con-
tributed to the tragedy.
On January 12, 2004, the Forest Service Employees for
Environmental Ethics (“FSEEE”), a self-described public
interest watchdog organization, filed a Freedom of Informa-
tion Act (“FOIA”) request with the Forest Service seeking the
release of the Cramer Fire Report. See 5 U.S.C. § 552. The
Forest Service complied with the request, but redacted the
names of all twenty-three Forest Service employees identified
in the Report. The agency cited FOIA Exemption 6, which
enables the government to withhold “personnel and medical
and similar files” that implicate personal privacy, as justifica-
tion for the redactions. See id. § 552(b)(6). The FSEEE filed
an administrative appeal, which the Forest Service denied.
Some time later, the Forest Service announced that it had
decided to discipline six employees involved in the incident,
but withheld their identities due to privacy concerns. In addi-
tion, the identities of several employees named in the Report
4710 FOREST SERVICE EMPLOYEES v. USFS
become known in various ways. First, Incident Commander
Hackett waived any right to confidentiality and the Forest
Service released a revised Report with all references to
Hackett unredacted.1 In addition, an unredacted copy of the
Cramer Fire Report was leaked to the family of one of the
deceased firefighters. The Forest Service discovered the leak
and disciplined the Forest Service employees responsible.
Finally, the OSHA report identified several Forest Service
employees who held positions of responsibility during the
incident.
The FSEEE filed a complaint in the District Court for the
District of Oregon seeking an unredacted copy of the Cramer
Fire Report. On cross-motions for summary judgment, the
district court concluded that Exemption 6 authorized the For-
est Service to withhold the identities of the employees named
in the Report in the interests of their personal privacy. The
district court found that employees subject to disciplinary
sanctions as well as those who merely served as cooperating
witnesses had privacy interests in avoiding the “embarrass-
ment, shame, stigma, and harassment” that would arise from
their public association with the Cramer Fire and further
found that the release of such employees’ identities would not
materially contribute to the public’s understanding of the
event. The FSEEE timely filed this appeal.
II
[1] FOIA was enacted to facilitate public access to govern-
ment records. John Doe Agency v. John Doe Corp., 493 U.S.
146, 151 (1989). As the Supreme Court has explained, the
statute’s purpose is “to pierce the veil of administrative
secrecy and to open agency action to the light of public scruti-
1
Hackett was placed on federal probation for eighteen months and was
terminated by the Forest Service. As part of his criminal pretrial diversion
program, Hackett agreed to waive his right to confidentiality regarding the
reasons for his termination.
FOREST SERVICE EMPLOYEES v. USFS 4711
ny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(internal quotation marks and citation omitted). Thus, among
other things, FOIA requires every federal entity presented
with a request for records under the statute to make such
records “promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). However, this requirement does not apply if
the requested information falls within one of nine exemptions.
Id. § 552(b).
[2] One such exemption, Exemption 6, provides that gov-
ernment entities may withhold information from “personnel
and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy.” Id. § 552(b)(6). The district court concluded that the
Cramer Fire Report was a “similar file” subject to this exemp-
tion and that the disclosure of the identities of the employees
named in the report would constitute a “clearly unwarranted”
invasion of their privacy. We consider each conclusion in
turn.
A
[3] The phrase “similar files” has a “broad, rather than a
narrow meaning.” U.S. Dep’t of State v. Wash. Post Co., 456
U.S. 595, 600 (1982). As such, we have previously held that
“[g]overnment records containing information that applies to
particular individuals satisfy the threshold test of Exemption
6.” Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d
1270, 1273 (9th Cir. 1984). Specifically, we have classified a
list of the names and home addresses of federal employees as
a “similar file” under this exemption. Id.; see also U.S. Dep’t
of Def. v. FLRA, 510 U.S. 487, 494, 500-01 (1994) (conclud-
ing that the home addresses of federal employees could be
withheld under Exemption 6). And, other courts of appeals
have determined that the names of agency personnel may be
withheld from responses to FOIA requests under Exemption
6. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 198-99 (D.C.
Cir. 2006) (holding that Exemption 6 authorized the FDA to
4712 FOREST SERVICE EMPLOYEES v. USFS
redact the names of agency personnel from documents
released in response to a FOIA request for records related to
the abortifacient drug, RU-486); Wood v. FBI, 432 F.3d 78,
86 (2d Cir. 2005) (holding that Exemption 6 authorized the
Justice Department to redact the names of investigating per-
sonnel from an administrative investigation report detailing
the discipline of two FBI agents). Accordingly, we have little
difficulty in concluding that the names and identifying infor-
mation contained in the Cramer Fire Report meet the “similar
file” requirement of Exemption 6.
B
Having determined that the Cramer Fire Report satisfies
this threshold test, we next consider whether the disclosure of
the employees’ identities would constitute a “clearly unwar-
ranted” invasion of their personal privacy. 5 U.S.C.
§ 552(b)(6). In conducting this inquiry, we “ ‘balance the pub-
lic interest in disclosure against the interest Congress intended
the [e]xemption to protect.’ ” Dep’t of Def., 510 U.S. at 495
(quoting U.S. Dep’t of Justice v. Reporters Comm. for Free-
dom of Press, 489 U.S. 749, 776 (1989)).2 Two guideposts are
critical to our analysis. First, “the only relevant ‘public inter-
est’ ” is the extent to which disclosure would “ ‘contribut[e]
significantly to public understanding of the operations or
activities of the government.’ ” Id. (emphasis omitted) (quot-
2
The balancing of public and private interests under Exemption 6 mir-
rors that which applies under Exemption 7(C). Id. (citing Reporters
Comm., 489 U.S. at 775). Exception 7(C) permits the withholding of “re-
cords or information compiled for law enforcement purposes” that “could
reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). The Supreme Court has interpreted
Exemption 7(C) as “more protective of privacy” than Exemption 6, Dep’t
of Def, 510 U.S. at 497 n.6, but explained that the only distinction between
the balancing tests applied to them is the “magnitude of the public inter-
est” required to override the respective privacy interests they protect. Id.
Accordingly, precedents that apply Exemption 7(C) are relevant to our
analysis of Exemption 6 insofar as they identify cognizable public and pri-
vate interests, even if their balancing of such interests is less instructive.
FOREST SERVICE EMPLOYEES v. USFS 4713
ing Reporters Comm., 489 U.S. at 775). In other words, “in-
formation 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. at 495-96 (citations and inter-
nal quotation marks omitted).
Second, the reasons why the FSEEE seeks the identities of
the Forest Service employees are irrelevant to our inquiry.
“ ‘[W]hether an invasion of privacy is warranted cannot turn
on the purposes for which the request for information is
made.’ ” Id. at 496 (emphasis in original) (quoting Reporters
Comm., 489 U.S. at 771). FOIA provides every member of
the public with equal access to public documents and, as such,
information released in response to one FOIA request must be
released to the public at large. Id. (citing NLRB v. Sears, Roe-
buck & Co., 421 U.S. 132, 149 (1975)). Accordingly, we con-
sider the consequences of disclosure of the employees’
identities to the entire public.3
1
We begin with the privacy interests of the Forest Service
employees. At the outset, we note that while the privacy inter-
ests of public officials are “somewhat reduced” when com-
pared to those of private citizens, “individuals do not waive
all privacy interests . . . simply by taking an oath of public
office.” Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223
(9th Cir. 2001) (citation omitted).
3
As a preliminary matter, we reject the FSEEE’s contention that the
unauthorized leak of the unredacted Cramer Fire Report or OSHA’s deci-
sion to identify certain employees in its own report diminishes the Forest
Service’s ability to apply Exemption 6 to redact the identities from the
Report. See Dep’t of Def., 510 U.S. at 500 (rejecting the argument that
information publicly available through sources cannot be withheld under
Exemption 6 if the exemption’s requirements are otherwise met); Report-
ers Comm., 489 U.S. at 767-68 (reaching the same conclusion under
Exemption 7(C)).
4714 FOREST SERVICE EMPLOYEES v. USFS
[4] In the past, we have recognized that a government
employee’s privacy interests may be diminished in cases
where information sought under FOIA would likely disclose
“official misconduct.” See id. at 1223-24 (holding that reports
describing the arrests of two city police officers for smuggling
steroids could not be withheld under Exemption 6); Dobron-
ski v. FCC, 17 F.3d 275, 278-79 (9th Cir. 1994) (concluding
that an FCC assistant bureau chief’s privacy interests were
“nominal” where a FOIA requester sought the official’s work
attendance and sick leave records to demonstrate that she had
taken unaccrued sick time). In addition, we have placed
emphasis on the employee’s position in her employer’s hierar-
chical structure as “lower level officials . . . generally have a
stronger interest in personal privacy than do senior officials.”
Id. at 280 n.4 (citing Hunt v. FBI, 972 F.2d 286, 289 (9th Cir.
1992)); see also Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir.
1984) (reasoning that the “level of responsibility held by a
federal employee . . . [is an] appropriate consideration[ ] for
determining the extent of the public’s interest in knowing the
identity of that censured employee” (citation omitted)).
[5] As the district court explained, the twenty-two employ-
ees identified in the Cramer Fire Report were “low and mid-
level” employees. In addition, although the Forest Service has
disciplined six of these employees, none has been accused of
official misconduct and the remaining employees were merely
cooperating witnesses. Accordingly, we agree with the district
court that neither the employees’ status as civil servants nor
the Forest Service’s disciplinary decisions strip them of their
privacy interests under Exemption 6.
[6] Second, we consider the district court’s conclusion that
the employees possessed privacy interests in avoiding the
“embarrassment, shame, stigma, and harassment” that would
arise from their public association with the incident. The
avoidance of harassment is a cognizable privacy interest
under Exemption 6. We have previously construed the
exemption to protect against the harassment associated with
FOREST SERVICE EMPLOYEES v. USFS 4715
unwanted commercial solicitations. See Painting Indus. of
Haw. Mkt. Recovery Fund v. Dep’t of Air Force, 26 F.3d
1479, 1483 (9th Cir. 1994); Minnis v. U.S. Dep’t of Agric.,
737 F.2d 784, 787 (9th Cir. 1984). The Supreme Court recog-
nized a similar interest in Department of Defense, where it
held that Exemption 6 authorized the Defense Department to
withhold the home addresses of its employees from its
response to a FOIA request filed by the unions representing
the employees. 510 U.S. at 502. Noting that the unions sought
this information precisely because nonunion employees had
decided not to share it with them, the Supreme Court found
it “clear” that such employees had “some nontrivial privacy
interest in nondisclosure, and in avoiding the influx of union-
related mail, and, perhaps, union-related telephone calls or
visits, that would follow disclosure.” Id. at 501 (emphasis in
original).
[7] In this case, the potential for harassment that drew the
district court’s attention was that which would be presented
by the media, curious neighbors, and the FSEEE itself. By its
own admission, the FSEEE plans to contact the Forest Service
employees named in the Report if their identities are dis-
closed. Moreover, in light of the significant public attention
the Cramer Fire received, it is likely that the media and others
would join the FSEEE in such pursuit. The fact that the record
does not indicate that any of the employees have spoken out
in the five years since the incident occurred leads us to con-
clude that such contacts would be unwanted.
[8] In addition, we recognize that disclosure of the employ-
ees’ identities may also subject them to embarrassment and
stigma. The Forest Service’s response to the Cramer Fire was
met with heavy criticism, particularly because the fire claimed
the life of two Forest Service employees. Therefore, the pub-
lic association of the employees with this tragedy would sub-
ject them to the risk of embarrassment in their official
capacities and in their personal lives.
4716 FOREST SERVICE EMPLOYEES v. USFS
[9] We conclude that such privacy interests are cognizable
under Exemption 6. See Wood, 432 F.3d at 88 (holding that
government employees’ “interest against possible harassment
and embarrassment . . . raises a measurable privacy concern
that must be weighed against the public’s interest in disclo-
sure”); Stern, 737 F.2d at 91-92 (determining that government
agents who were censured but not criminally charged had a
privacy interest in avoiding “embarrassment or stigma” that
would arise from the release of their identities). And, as the
Supreme Court has held, “some nontrivial privacy interest” is
sufficient to justify the withholding of information under
Exemption 6 unless the public interest in disclosure is suffi-
cient to outweigh it. Dep’t of Def., 510 U.S. at 501.
2
[10] Satisfied that privacy interests are at stake here, we
turn to the public interests asserted by the FSEEE. We empha-
size that “the only relevant public interest” under Exemption
6 is the extent to which 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.’ ” Id. at 497 (quoting Reporters Comm., 489 U.S. at
773). Thus, to compel the disclosure of the Forest Service
employees’ identities, such information must “appreciably
further” the public’s right to monitor the agency’s action. Id.
at 497; see also Hopkins v. U.S. Dep’t of Hous. & Urban
Dev., 929 F.2d 81, 88 (2d Cir. 1991) (concluding that “disclo-
sure of information affecting privacy interests is permissible
only if the information reveals something directly about the
character of a government agency or official” (emphasis in
original) (citation omitted)).
The FSEEE contends that disclosure of the employees’
identities will advance several public objectives. First, it
argues that disclosure will allow the public to determine
whether the Forest Service reassigned employees identified in
the Cramer Fire Report to non-firefighter positions as a result
FOREST SERVICE EMPLOYEES v. USFS 4717
of the incident. Second, the FSEEE suggests that disclosure
will allow the public to ascertain whether such employees
were adequately trained. Finally, the FSEEE contends that the
revelation of the employees’ identities will allow the public to
“determine whether the Forest Service accurately recounted
the incident in the Cramer Fire Report,” to “reconcile incon-
sistencies,” and to “shed additional light on what happened
and how it can be prevented in the future” by, among other
things, conducting “interviews with the participants.”
To the extent that the FSEEE seeks to conduct its own
investigation of the Cramer Fire, we note that four federal
agencies have investigated the incident and produced three
publicly-available reports. As such, the FSEEE “already ha[s]
a substantial amount of the information they seek,” and we
will not require the disclosure of the employees’ identities
unless the “marginal additional usefulness” of such informa-
tion is sufficient to overcome the privacy interests at stake.
Painting Indus., 26 F.3d at 1486.
Both OSHA and OIG have investigated the training
received by the Forest Service employee and reported find-
ings to the public. Moreover, the Forest Service’s subsequent
personnel actions raise strong privacy interests that are not
overcome by the public’s marginal interest in conducting
another investigation of the agency’s response to the tragedy.
In addition, by the FSEEE’s own admission, the identities of
the employees alone will shed no new light on the Forest Ser-
vice’s performance of its duties beyond that which is already
publicly known. Instead, the FSEEE seeks to contact these
employees itself to determine what occurred at the Cramer
Fire and to confirm the veracity of the publicly-available
reports. We have previously expressed skepticism at the
notion that such derivative use of information can justify dis-
closure under Exemption 6. In Painting Industry, a labor
organization sought the release of payroll records submitted
to the Air Force by a government contractor working on an
Air Force base for the purpose of determining whether the Air
4718 FOREST SERVICE EMPLOYEES v. USFS
Force was diligently enforcing a federal wage statute. Id. at
1481. Direct contact with the employees was necessary to
accomplish the organization’s goal. Id. at 1484-85. We held
that Exemption 6 authorized the Air Force to withhold the
payroll records because the only “additional public benefit”
the release of the employees’ personal information would pro-
vide was “inextricably intertwined” with the invasion of the
employees’ privacy. Id. at 1485.
[11] The public benefit the FSEEE asserts and the privacy
interests of the Forest Service employees are equally insepara-
ble. Under the FSEEE’s theory, the only way the release of
the identities of the Forest Service employees can benefit the
public is if the public uses such information to contact the
employees directly. As we held in Painting Industry, such use
cannot justify the release of the information the FSEEE seeks.
[12] In addition, we are not persuaded that direct contact
with the employees would produce any information that has
not already been revealed to the public through the four inves-
tigations that have already occurred and the three reports that
have been publicly released. See U.S. Dep’t of State v. Ray,
502 U.S. 164, 178-79 (1991) (applying Exemption 6 to with-
hold the identities of Haitian refugees interviewed in State
Department reports where there was no indication that an
additional round of interviews by the FOIA requester “would
produce any relevant information that is not set forth in the
documents that have already been produced”). The Cramer
Fire Report extensively describes the Forest Service’s actions
during each hour of the blaze, and the OSHA and OIG reports
are similarly thorough. We generally accord government
records a “presumption of legitimacy.” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (citing
Ray, 502 U.S. at 178-79). Moreover, OSHA and the OIG had
little to gain from withholding criticism of the Forest Service,
as their pointed and disapproving conclusions indicate. As a
result of the substantial information already in the public
domain, we must conclude that the release of the identities of
FOREST SERVICE EMPLOYEES v. USFS 4719
the employees who participated in the Forest Service’s
response to the Cramer Fire would not appreciably further the
public’s important interest in monitoring the agency’s perfor-
mance during that tragic event.
III
[13] Balancing the privacy interests at stake against the
public interest involved, we conclude that the Forest Service
is not required to release the identities of the employees
named in the Cramer Fire Report. Accordingly, the district
court’s grant of summary judgment in favor of the Forest Ser-
vice is
AFFIRMED.