The opinion of the court was delivered by: FLANNERY
By letter dated May 30, 1983, plaintiff Citizens for Environmental Quality ("CEQ") requested copies of the results of all health tests which have been performed on Forest Service employees as well as any other data relative to health effects in connection with herbicide spraying in the Avery Ranger District of the Idaho Panhandle National Forest. CEQ's request was denied by letter dated June 14, 1983, on the ground that it sought information of a "private, intimate nature" and thus was exempt from disclosure under exemption 6 of the Freedom of Information Act (FOIA). 5 U.S.C. § 552(b)(6). CEQ appealed that decision, requesting only results of health tests and removal of all details that would allow identification of the subjects, but the denial of access to the health test data was affirmed. Although the methodology used by the Forest Service in monitoring health effects of herbicide application was released, defendant asserted that the personal privacy of the single individual sampled in the Avery Ranger District test could not be protected by removing identifying details from the test results. The Forest Service also asserted that upon review of the methodology used, the results of the single urinalysis were meaningless. CEQ again appealed the action of the Forest Service regarding the health test results, but the denial was reaffirmed. Plaintiff commenced suit on December 16, 1983, and defendant filed its answer on January 16, 1984.
The government contends that disclosure of the test results, even if the name of the tested employee is withheld, would constitute a "clearly unwarranted invasion of personal privacy" of the individual tested. Therefore, because the documents sought are medical records, the government argues that both requirements for nondisclosure under FOIA exemption 6 are satisfied. Defendant alleges that it is "publicly known" in the community where the herbicide spraying was conducted that the individual tested was a resident of Avery, Idaho. Therefore, because there were only eight Forest Service employees present during the herbicide application, only four of whom were residents of Avery, and only two of these individuals occupied the technical positions that exposed them to the herbicide, the identity of the employee tested could so readily be deduced from the facts widely known about the herbicide spraying that all identifying information pertaining to that employee as well as the actual health test results must be withheld to protect that individual's privacy, as promised when the tests were conducted. The government further argues that the public interest in the test results is insignificant because the results are "virtually valueless" due to the methodology used, and because release of the test results could confuse the public given the public's "tendency" to assume that a document made public by an agency reflects that agency's official position.
Plaintiff argues that the government is merely speculating that the people of Avery know enough about the herbicide test to identify the subject, and that the "fragmented, circumstantial" evidence available to even those who are "intimately familiar" with the USDA's herbicide program is insufficient to permit identification. Further, plaintiff argues that any risk of identification that does exist stems entirely from the government's voluntary, post-litigation disclosure of information not sought by CEQ, such as the total number of Forest Service employees participating in the herbicide program and the residence of the subject of the test. Because the government is responsible for any risk of identification, plaintiff argues, defendant should not be allowed to argue that disclosure of non-identifying information would create an invasion of privacy. Finally, CEQ claims that the public interest in the test results is significant, since valid inferences regarding the effects of herbicide spraying can be made from the results, despite any methodological defects. Further, even if the results really are "meaningless," as defendant asserts, CEQ argues that the public has an interest in learning that defendant is not abiding by its alleged commitment to effectively monitor the health effects of herbicide spraying.
Among the affidavits submitted in support of the pending motions for summary judgment was an in camera affidavit from the subject of the herbicide test, which was submitted voluntarily by defendant. Plaintiff argues that the court should not consider this affidavit because it was submitted without permission, is unnecessary to resolution of the issues, and frustrates the adversary process. Defendant asserts that the in camera affidavit provides valuable facts to assist the court in its de novo review.
Both parties have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff claims that it is entitled to the health test results as a matter of law under the Freedom of Information Act. Defendants argue that exemption 6 of FOIA justifies nondisclosure of the health test results as a matter of law. Plaintiff has also moved for rejection of the in camera affidavit.
A motion for summary judgment is properly granted only when no material fact is genuinely in dispute and the movant is entitled to prevail as a matter of law. In assessing the motion, all inferences to be drawn from the underlying facts contained in the movant's materials must be viewed in the light most favorable to the party opposing the motion. "Indeed, 'the record must show the movant's right to [summary judgment] "with such clarity as to leave no room for controversy," and must demonstrate that his opponent "would not be entitled to [prevail] under any discernible circumstances. "'" National Ass'n of Gov't Employees v. Campbell, 192 U.S. App. D.C. 369, 593 F.2d 1023, 1027 (D.C. Cir. 1978).
Summary judgment must be denied if it depends upon any fact that the record leaves susceptible of dispute. Id. A party opposing summary judgment is required to proffer rebuttal evidence only if its omission enables the movant to satisfy his burden of showing that no meaningful issue of material fact remains. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S. Ct. 1598, 1609-10, 26 L. Ed. 2d 142 (1970); Davis v. Chevy Chase Financial Limited, 215 U.S. App. D.C. 117, 667 F.2d 160, 172 (D.C. Cir. 1981). The court's function at this stage is not factfinding or the resolution of factual issues pertinent to the controversy, but rather to ascertain whether factfinding is essential to disposition of the litigation. Campbell, 593 F.2d at 1027, 1029. It is in light of these admonitions that the court reviews the pending motions for summary judgment.
Under exemption 6 of the Freedom of Information Act, an agency need not disclose "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). When confronted with a challenge to an agency's decision to withhold records under this exemption, courts must engage in a two-step de novo inquiry to determine first whether the information sought is to be found in personnel, medical, or similar files, and, if so, whether its release would constitute a "clearly unwarranted invasion of personal privacy." Arieff v. United States Dep't of the Navy, 229 U.S. App. D.C. 430, 712 F.2d 1462, 1466 (D.C. Cir. 1983); Washington Post Co. v. United States Dep't of Health and Human Services, 223 U.S. App. D.C. 139, 690 F.2d 252, 260 (D.C. Cir. 1982). The first inquiry need not detain us here, as the parties are in agreement that the information sought by plaintiff is contained in "personnel, medical, or similar ...