Torres Consulting and Law Grp. v. Nasa , 666 F. App'x 643 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TORRES CONSULTING AND LAW No. 14-17303
GROUP, LLC,
D.C. No. 2:14-cv-00801-MEA
Plaintiff-Appellant,
v. MEMORANDUM*
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Mark E. Aspey, Magistrate Judge, Presiding
Submitted November 17, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and GILMAN*** and FRIEDLAND, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Plaintiff Torres Consulting and Law Group (“Torres”) appeals the district
court’s grant of summary judgment to NASA on Torres’s Freedom of Information
Act (“FOIA”) claim. Invoking FOIA Exemptions 4 and 6, NASA totally withheld
the requested contractor’s payroll records, and the district court affirmed. 5 U.S.C.
§ 552(b). We review de novo summary judgment decisions in FOIA cases.
Animal Legal Def. Fund v. U.S. Food & Drug Admin., No. 13-17131, 2016 WL
4578362 (9th Cir. Sept. 2, 2016) [hereinafter ALDF] (en banc) (per curiam). We
reverse and remand.
I.
Section (a) of FOIA generally obligates the government to disclose
information to the public; section (b) contains nine exemptions to this general
disclosure obligation. See 5 U.S.C. § 552(a)-(b); Frazee v. U.S. Forest Serv., 97
F.3d 367, 370 (9th Cir. 1996), abrogated on other grounds by ALDF, 2016 WL
4578362. Exemption 4 applies to matters that are “trade secrets and commercial or
financial information obtained from a person and privileged or confidential.” 5
U.S.C. § 552(b)(4). Information is confidential for the purposes of Exemption 4 if
its disclosure is likely “to cause substantial harm to the competitive position of the
person from whom the information was obtained.” GC Micro Corp. v. Def.
Logistics Agency, 33 F.3d 1109, 1112-13 (9th Cir. 1994) (citing Nat’l Parks &
Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)), abrogated on
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other grounds by ALDF, 2016 WL 4578362. Information will result in substantial
competitive injury if it “‘would allow competitors to estimate, and undercut, [the
firm’s] bids.’” Id. at 1115 (quoting Gulf & W. Indus., Inc. v. United States, 615
F.2d 527, 530 (D.C. Cir. 1979)).
The parties here dispute whether releasing the requested information would
likely cause substantial competitive injury to RTD Construction, Inc. (“RTD”), and
they submitted competing evidence on this question to the district court.
Sitting en banc, we recently held that “if there are genuine issues of material
fact in a FOIA case, the district court should proceed to a bench trial or adversary
hearing. Resolution of factual disputes should be through the usual crucible of
bench trial or hearing, with evidence subject to scrutiny and witnesses subject to
cross-examination.” ALDF, 2016 WL 4578362 at *2. We have characterized the
substantial-competitive-harm determination as a factual question. See Animal
Legal Def. Fund v. U.S. Food & Drug Admin., No.13-17131, 2016 WL 5827463,
at *1 (9th Cir. Sept. 30, 2016) [hereinafter ALDF Panel Opinion] (per curiam);
ALDF, 2016 WL 4578362, at *1; Lion Raisins Inc. v. U.S. Dep’t of Agric., 354
F.3d 1072, 1078 (9th Cir. 2004), abrogated on other grounds by ALDF, 2016 WL
4578362.
In ALDF itself, we concluded that competing declarations offered by the
parties raised a dispute of material fact as to competitive harm. ALDF Panel
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Opinion, 2016 WL 5827463, at *1. Accordingly, we reversed the grant of
summary judgment and remanded for further proceedings. Id.The same issue of material fact exists in this case. Here, as in ALDF, the
parties submitted competing declarations, with equivalent levels of detail and
based on equivalent levels of knowledge, about whether the release of the
requested information would cause competitive harm. Torres also requested a
hearing at which to present more evidence. We reverse as to Exemption 4 and
remand for further proceedings to resolve the dispute of material fact on the issue
of competitive harm.
II.
FOIA Exemption 6 applies 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). To determine whether disclosing the
information would constitute a clearly unwarranted invasion of personal privacy,
“‘we must balance the privacy interest protected by the exemptions against the
public interest in government openness that would be served by disclosure.’”
Prudential Locations LLC v. U.S. Dep’t of Hous. & Urban Dev., 739 F.3d 424, 430
(9th Cir. 2013) (per curiam) (quoting Elec. Frontier Found. v. Office of the Dir. of
Nat’l Intelligence, 639 F.3d 876, 886 (9th Cir. 2010), abrogated on other grounds
by ALDF, 2016 WL 4578362), abrogated on other grounds by ALDF, 2016 WL
4
4578362. This balancing test involves two steps. At the first step, the agency must
prove that there is more than a de minimis personal privacy interest. Id.; Yonemoto
v. Dep’t of Veterans Affairs, 686 F.3d 681, 694 (9th Cir. 2012), abrogated on other
grounds by ALDF, 2016 WL 4578362. If the privacy interest is more than de
minimis, the court goes on to the second step, where it balances that privacy
interest with the public interest in disclosure. But if the agency does not establish
that disclosing the information would invade a non-trivial privacy interest, then
“FOIA demands disclosure, without regard to any showing of public interest.”
Yonemoto, 686 F.3d at 694; see also Prudential Locations, 739 F.3d at 430.
Here, Torres does not contest that the information it seeks is a “similar file”
to medical or personnel files, within the meaning of Exemption 6. Torres does
dispute, however, that there is any privacy interest in the documents it seeks once
all of the information that identifies a particular individual—names, addresses and
social security numbers—has been redacted, as Torres concedes it should be. The
Supreme Court has interpreted Exemption 6 as covering only information that is
linked to an identifiable person. See, e.g., U.S. Dep’t of State v. Ray, 502 U.S. 164,
175-76 (1991) (disclosure of highly personal information “constitutes only a de
minimis invasion of privacy when the identities” are unknown); U.S. Dep’t of State
v. Wash. Post Co., 456 U.S. 595, 602 n.4 (1982) (explaining that “[i]nformation
unrelated to any particular person presumably would not satisfy the threshold test”
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for a privacy interest under Exemption 6); Dep’t of Air Force v. Rose, 425 U.S.
352, 375-76 (1976) (explaining that Exemption 6 is “intended to cover detailed
Government records on an individual which can be identified as applying to that
individual and not the facts concerning the award of a pension or benefit or the
compilation of unidentified statistical information from personal records”) (quoting
H.R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966), U.S. Code Cong. & Admin.
News 1966, p.2428) (emphasis added).
In light of these precedents, any privacy interest in payroll data after names,
addresses, and social security numbers are redacted is trivial. Thus, “FOIA
demands disclosure, without regard to any showing of public interest.” Yonemoto,
686 F.3d at 694.1 Accordingly, we reverse the district court’s judgment as to
Exemption 6, which was the only exemption NASA invoked to withhold tax
deduction, tax withholding, and net earnings information.2
On remand, the district court should reconsider the issue of segregability
after determining whether NASA properly invoked Exemption 4 to withhold
workers’ job classifications, dates and hours worked, total hours worked, rates of
pay, gross earnings information, and whether the pay was standard or overtime.
1
We therefore do not reach the parties’ arguments about public interest.
2
Although we hold that Exemption 6 does not apply to gross earnings, NASA also
invoked Exemption 4 to withhold that information, so that category of information
will need to be considered further on remand.
6
Torres requested attorney’s fees in its brief. Such a request must be made in
accordance with Ninth Circuit Rule 39-1.6.
For the foregoing reasons we REVERSE and REMAND.
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