Garvey v. U.S Department of Justice ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARTIN H. GARvEY, §
Piaintiff, §
v ) civil case No. 14-201 (RJL)
. )
)
u.s. DEPARTMENT oF JUSHCE,
) FILED
)
Defendant. AUG 2 2 2014
6 Cle k,U.,`_ , ‘
MEMoRANDuM oPiNioN carla 15 ih'§‘i>i'§iri§ iii i'§iiiliii»iya
(Augusrj{, 2014) [Di598
F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summaryjudgment is
appropriate when the record demonstrates that there is no genuine issue of material fact in
dispute and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ.
P. 56(a). The moving party bears the burden, and the court will draw "‘all justifiable
inferences" in the favor ofthe non-moving party. Ana'erson v. Liberly Lobby, Inc., 477
U.S. 242. 255 (1986). Nevertheless, the non-moving party "may not rest upon the mere
allegations or denials ofhis pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial." [d. at 248 (internal quotation marks omitted) (alteration
in original).
When reviewing an agency’s non-disclosure decisions, the court may rely on
ziffidavits or declarations if they describe "the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Mz'lz'tary Audz`t Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. l98l). Such affidavits or declarations are accorded
"a presumption of good faith, which cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents." SafeCard Servs., Inc. v.
SEC. 926 F.2d ll97, 1200 (D.C. Cir. l99l) (internal quotation marks omitted).
"Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient ifit
appears logical or plausible." Wolfv. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)
(internal quotation marks omitted).
ANALYSIS
"The Freedom of information Act was conceived in an effort to permit access by
the citizenry to most forms of government records. In essence, the Act provides that all
documents are available to the public unless specifically exempted by the Act itself."
Vrznghn v. Rosen, 484 F.2d 820. 823 (D.C. Cir. l973). FOIA codifies nine exemptions
(soine with additional subparts), 5 U.S.C. § 552(b)(l)-(9), which are to "be construed
narrowly" to fulfill the purposes of the Act. Vaughn, 484 F.2d. at 823.
Three such exemptions were claimed by defendant here. Under FOIA Exemption
5. the government may withhold "inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the
agency." 5 U.S.C. § 552(b)(5). Exemption 6 applies to "personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy'." ]a’. § 552(b)(6). Finally, "records or information compiled for law
enforcement purposes [are exempt], but only to the extent that production of such law
enforcement records or information . . . (C) could reasonably be expected to constitute an
unwarranted invasion of`personal privac_v." [a’. § 552(b)(7).
l\/lr. Garvey argues that "any privilege or exemption that might protect the request
and report from production has been waived as a result ofthe governinent’s reliance on
the content of the ethics report" in responding to the motion for a new trial in his co-
defendant`s case. Pl.’s l\/Iot. at 2. The defendant maintains that the exemptions were
invoked properly, but does not address the question of waiver specifically. Def.’s Opp’n.
Although the defendant ultimately bears the burden of establishing the
applicability ofthe exemptions it claims, Assassz'natz`on Archz'ves & Researc/z Cir. v. CIA,
334 F.3d 55. 57 (D.C. Cir. 2003), the Department of Justice is not requesting summary
judgment in its favor.z Only l\/lr. Garvey is. In so moving for summaryjudgment, Mr.
Garvey is asking this Court to find, on the basis ofthe record before it, that the defendant
improperly applied all three FOIA exemptions it relied upon when withholding the
records at issue. Unfortunately for l\/Ir. Garvey, the record does not support such a
conclusion
A. Exemption 6
l begin with Exemption 6, for "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). 'l`he Supreme Court has interpreted the term "similar files"
broadly so as "to cover detailed Government records on an individual which can be
identified as applying to that individual." U.S. Dep ’t ofState v. Wash. Posl Co., 456 U.S.
595. 602 (1982) (internal quotation marks omitted). "When disclosure ofinforination
which applies to a particular individual is sought from Government records, courts must
determine whether release of the information would constitute a clearly unwarranted
invasion of that person’s privacy." ]a’. Although certain types of files are mentioned by
name in the statute, "it is not the nature ofthe files in which the information is contained,
2 Although the defendant has not filed a cross-motion for summaryjudgment to date, this opinion should
encourage the Department to do so.
but rather the balance of public and private interests that determines the Exemption’s
scope." Schoennzan v. FB1, 575 F. Supp. 2d 136, l58 (D.D.C. 2008).
F.ven in the case ofinformation that applies to particular individuals, FOIA
demands disclosure if"no significant privacy interest is implicated (and if no other
Exemption applies)." Nal 'l Ass ’n ofRetired Fed. Emps. v. Horner, 879 F.2d 873, 874
(D.C. Cir. l989). A significant privacy interest as applied in this context (sometimes
called a substantial privacy interest) is anything greater than a de mini`)nis privacy
interest. ]d.; see also Mzili‘i Ag Media LLC v. Dep ’t ofAg/"ic., 515 F.3d 1224, 1229-30
(D.C. Cir. 20()8) ("A substantial privacy interest is anything greater than a de minimis
privacy interest."). lf there is a substantial privacy interest, then the Court "address[es]
the question whether the public interest in disclosure outweighs the individual privacy
concerns." Nal’l Ass ’n ofHome Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002). At
that point, the inquiry into the public interest "is liinited to the question whether
disclosure will shed light on the agency`s performance of its statutory duties." 1d.
(internal quotation marks omitted).
Here, the defendant has offered evidence that the documents contain information
regarding particular individuals. All three documents, the government witness declares,
"contain information that would be found in a personnel file, or as similar file. They are
confidential, and contain the personal information ofAUSA Schimkat and third parties."
Brandon Decl. jj 28. The individuals have more than a de minimis privacy interest in
records requesting an ethics opinion and the ethics opinion itself when those records
contain personal factual inf`ormation. The EOUSA determined that there was no public
7
interest in disclosure, "because the dissemination ofthis personal information would not
help to explain the activities and the operations ofthe USAO," id. 11 29 n.6, and Mr.
Garvey has not argued or offered any evidence to the contrary, see generally Pl.’s Mot.
Accordingly, 1 conclude that although the government’s assertions are not
detailed, they suffice at least to create a genuine issue of material fact as to whether the
information warrants withholding under Exemption 6, and l\/lr. Garvey is not entitled to
summary judgment
B. Exemption 7(C)
F.ven if Exemption 6 were not to apply, the defendant has invoked other
exeinptions. including Exemption 7(C). Exemption 7(C) covers any "records or
information compiled for law enforcement purposes," the production of which "could
reasonably be expected to constitute an unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(7)(C). lf the records in question were compiled for law enforcement
purposes, the Court must "balance the privacy interests that would be compromised by
disclosure against the public interest in release ofthe requested information." Beck v.
Dep ’t afl/ustice. 997 F.2d 1489, 1491 (D.C. Cir. 1993) (internal quotation marks
omitted). The Supreme Court recognizes that "Exemption 7(C)’s privacy language is
broader than the comparable language in Exemption 6." U.S. Dep ’i afJustice v.
Re,aarlers Camm. far Freedom ofthe Press, 489 U.S. 749, 756 (1989).
Although the "usual rule [is] that the citizen need not offer a reason for requesting
the information,"` that practice does not apply to a challenge to Exemption 7(C). Naz"l
Archives & Records Admin. v. Favisli, 541 U.S. 157, 172 (2()04). Instead, "Exemption
8
7(C) imposes a special burden on the requester to specify the public interestjustification
for disclosure ofthe requested records." Graffv. FBI, 822 F. Supp. 2d 23, 33 (D.D.C.
201 l) (further explaining that "because the public interestjustification in each case
depends on how the requester plans to use the records or information, the agency must
obtain thatjustification from the requester in order to balance it against the third party’s
privacy interest.").
ln this case, the records in question were compiled for law enforcement purposes.
They were created by government prosecutors or other employees of prosecuting offices
during the course of, and for the purpose of. a criminal proceeding. Brandon Decl. il 29.
'l`herefore. this exemption also calls for a balance of the privacy interests implicated. As
described above. l\/lr. Garvey failed to establish the government improperly invoked the
narrower Exemption 6, and he fares no better here. The third parties at issue have a
privacy interest in their personal information remaining private. And again, Mr. Garvey
has not specified the public interest justification for the disclosure he requests. The
government need not "guess what the requesters had in mind and . . . catalogue the
possible public reasons for disclosure" in order to invoke the Exemption. Grajj’,` 822 F.
Supp. 2d at 33.
l\/Ir. Garvey has failed to establish that the defendant’s reliance on the personal
privac_v exemptions»l§xemptions 6 and 7(C)-was improper.3 Thus, he is not entitled to
summary judgment on his request that the Department of Justice produce the potentially
l l\/lr. Garvey does not raise the issue of segregability. ln any event, the defendant has offered evidence
that "lt]he records are not segregable, without risking the disclosure of protected and/or privileged
information or identifying one or more ofthe third parties." Braiidoii Decl. il 32.
9
responsive docuinents. l need not, and do not, consider the question of whether
Exemption 5 applies.
CONCLUSION
l~` or all of the foregoing reasons, the plaintiffs Motion for Summary Judgment
[Dkt. #4] is DENIED. An Order consistent with this decision accompanies this
ram
RiCHARiS..L_L.QoN
United States District Judge
Memorandum Opinion.
lO