Motion for Summary Judgment at 6. Indeed, the government now contends that it "is not attempting to establish that every person, or any one person, in the Avery, Idaho community knows the identity of the individual who underwent the tests. Defendant asserts only that, given the circumstances surrounding the spraying, some residents of Avery could logically deduce this individual's identity." Memorandum of Points and Authorities in Further Support of Defendant's Motion for Summary Judgment at 5 (emphasis in original). Nor has defendant supplied evidentiary details to support its conclusion that knowledge of the circumstances surrounding the tests was public prior to the USDA's post-litigation disclosures. See Hart Affidavit at para. 6.
Although an agency may satisfy its burden of demonstrating that requested documents fall under an exemption to FOIA by providing affidavits, it is well-settled that "conclusory allegations unsupported by factual data will not create a triable issue of fact." Exxon Corp. v. Federal Trade Comm'n, 213 U.S. App. D.C. 356, 663 F.2d 120, 126-27 (D.C. Cir. 1980). Under FOIA, defendant has the burden of showing affirmatively the applicability of any exemption it seeks to assert, see id. at 126, with the burden under exemption 6 as heavy as can be found anywhere in the Act. See Washington Post Co. v. United States Dep't of Health and Human Services, 690 F.2d at 261. Instead, defendant claims that plaintiff's alleged failure to prove that facts identifying the individual tested were not known to the general public requires the conclusion that there is no genuine issue of material fact as to what was publicly known, and thus that summary judgment for defendant is proper. See Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in Further Support of Defendant's Motion for Summary Judgment at 4 & n.2; see also Memorandum of Points and Authorities in Further Support of Defendant's Motion for Summary Judgment at 5. This position misconstrues both the government's general burden under FOIA and the movant's burden under a motion for summary judgment. See Davis v. Chevy Chase Financial Limited, 215 U.S. App. D.C. 117, 667 F.2d 160, 172 (D.C. Cir. 1981); Weisberg v. United States Dep't of Justice, 200 U.S. App. D.C. 312, 627 F.2d 365, 368 (D.C. Cir. 1980); Campbell, 593 F.2d at 1029. USDA's affidavits, alleging what was "commonly known" about the USDA employees engaged in herbicide application and the resulting "speculation" surrounding the identity of the employee tested, are either too conclusory to create a triable issue of fact for this court to decide or allege only speculation and possibilities which the Supreme Court and the Court of Appeals for the D.C. Circuit have held to be insufficient to invoke exemption 6 as a matter of law. See Rose, 425 U.S. at 380, 96 S. Ct. at 1608; Arieff, 712 F.2d at 1468. Plaintiff, on the other hand, has come forth with affidavits asserting from the personal knowledge of the affiants, who were residents of the Avery, Idaho area and deeply interested in the USDA's herbicide application program, that they could not identify the subject of the tests from available information and that they knew of no one who could. See Hoglund Affidavit at para. 3; Dickison Affidavit at paras. 3, 4.
Based on the court's holding that defendant's affidavits failed to withstand plaintiff's motion for summary judgment on the issue of whether disclosure will create a danger of invasion of privacy at all, it is not necessary for the court to resolve the balance between any invasion of privacy and the public's interest in disclosure. See Washington Post Co. v. United States Dep't of Health and Human Services, 690 F.2d at 261. Nevertheless, the court is compelled to point out that despite any "potential" methodological flaws in the health tests administered by USDA, defendant has failed to controvert plaintiff's expert's contention that valid inferences regarding the effects of herbicide spraying can be made from the results. While it may be "possible" that the individual tested was exposed to the chemicals found in his urine prior to the spraying administered by USDA, thus rendering the results less valuable if not useless, whether or not the subject of the test was in fact exposed to those chemicals in the week prior to the test is information uniquely within the possession of the government. See Witt Affidavit at para. 8; Shearer Affidavit at 3. Similarly, the effect of such variables as the subject's general health or medicines he was taking may render the test results less useful, but defendant again has failed to assert any facts upon which the court could conclude that the individual tested in fact had a health problem or was taking medicines which would skew the test results. See Witt Affidavit at para. 7. Therefore, although methodological defects may preclude broad generalizations on the basis of this test, and although the results possibly may not be the most accurate basis for estimating the precise exposure to which the individual was subjected, see Witt Affidavit at paras. 3, 6, the government has failed to controvert plaintiff's contention that valid inferences from the test results may nonetheless be possible. In this light, defendant's assertion that release of the test results could "confuse or mislead" the public given the public's "tendency" to equate release of such tests with official validation of their results, see Defendant's Motion for Summary Judgment at 11-12, is particularly unpersuasive. The purpose of FOIA is to provide for disclosure of government documents so that the public may draw its own conclusions. See Washington Post Co. v. United States Dep't of Health and Human Services, 690 F.2d at 264. In passing FOIA, "Congress was all too aware of the 'innumerable times' that agencies had withheld information under prior law 'only to cover up embarrassing mistakes or irregularities.'" Id. Even if the government had not made a specific commitment to monitor the spraying of this particular herbicide in this particular location as plaintiff alleges, the fact that USDA performed these tests and obtained results is of obvious interest to residents of the area in which the spraying took place. As to the methodological problems and any inferences to be drawn from these tests, this court prefers, and FOIA mandates, that those conclusions be left to the public.
C. Plaintiff's motion to reject defendant's in camera affidavit.
Finally, the court holds that it is unnecessary for it to consider defendant's in camera affidavit to evaluate the validity of the government's assertion of exemption. The court finds that the in camera affidavit of the Forest Service employee who consented to the urinalysis is not "absolutely necessary" to evaluate the government's claim that citizens in Avery know enough of the facts surrounding the herbicide testing to identify the subject of the test. See Arieff v. United States Dep't of the Navy, 229 U.S. App. D.C. 430, 712 F.2d 1462, 1471 (D.C. Cir. 1983). Implicit in this holding is the court's opinion that the validity of the government's assertion of exemption can be evaluated with information contained in public affidavits and records, and that the usefulness of the opinions of the subject of the test does not rise to the level required to justify in camera submission. See Arieff, 229 U.S. App. D.C. 430, 712 F.2d 1462 at 1471; Public Citizen Health Research Group v. United States Dep't of Labor, 192 U.S. App. D.C. 199, 591 F.2d 808, 809 (D.C. Cir. 1978) (per curiam).
For these reasons, the court holds that the allegations in defendant's affidavits have failed to create a triable issue of fact for this court to decide. In light of the heavy burden on the government under exemption 6, and the government's failure to submit facts creating more than a "mere possibility of identification or to controvert plaintiff's assertion of the public's interest in the documents sought, the court shall deny defendant's motion for summary judgment and grant plaintiff's motion for summary judgment. Defendant shall release to plaintiff copies of the results of health tests performed on the Forest Service employee involved in the 1982 herbicide project in the Avery Ranger District which have been withheld by defendant pursuant to exemption 6 of the Freedom of Information Act. Defendant shall be permitted to delete the name of the employee tested and other similar identifying details. Plaintiff's motion to reject defendant's in camera affidavit shall be granted.
An appropriate Judgment accompanies this Memorandum.
JUDGMENT AND ORDER
After consideration of the motions before the court, the entire record before the court, and in accordance with the accompanying Memorandum filed by the court this date, it is, by the court, this 26th day of October, 1984,
ORDERED, ADJUDGED and DECREED that defendant's motion for summary judgment, is denied; and it is further
ORDERED, ADJUDGED and DECREED that plaintiff's motion for summary judgment is granted; and it is further
ORDERED that plaintiff's motion to reject defendant's in camera affidavit is granted.
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