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Bigwood v. United States Agency for International Development

April 10, 2007


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court on cross motions for summary judgment.*fn1 On March 30, 2007, the Court entered an Order and Judgment granting defendant's motion for summary judgment and denying plaintiff's motion for summary judgment. This Opinion explains the reasoning underlying that Order.


Plaintiff, pro se, brought this action against the United States Agency for International Development ("USAID" or "Agency") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking information regarding defendant's "funding of any projects, organizations or other entities in Venezuela from 1998 to Feb. 2004 and any USAID analysis of the situation in Venezuela from 1998 to Feb. 2004." Complaint ¶ 1. Plaintiff made several specific requests to defendant in November and December of 2003. See id. ¶ 6. Defendant requested that plaintiff narrow his requests, and he did so, on February 26, 2004. See id. ¶¶ 7-8. Defendant also granted plaintiff "news media" status. See Def's SMF ¶ 2.

In a so-identified partial response to plaintiff's request, defendant produced some documents -- 511 pages -- to plaintiff on August 20, 2004, and excised some information and withheld some documents under FOIA Exemptions 4 and 6. See Complaint ¶ 10; Def's SMF ¶ 5. "Specifically, the Agency withheld documents to 'protect the identities of the individuals working for the local grant recipients' pursuant to Exemption (b)(6), and documents that may have contained certain financial information reflecting trade secrets and/or commercial or financial information, pursuant to Exemption (b)(4)." Def's SMF ¶ 5. By letter dated August 28, 2004, plaintiff administratively appealed these withholdings. See id. ¶ 6. Plaintiff alleges that defendant then released "documents relating to its funding of U.S.-based NGOs but continued to wrongfully withhold the names of organizations it funds in Venezuela under exemption b(6) and neglected to respond to plaintiff's appeal in the case of the material withheld under exemption b(6)." Complaint ¶ 12.

After defendant's response to the August 28, 2004 administrative appeal, no documents were being withheld under Exemption 4, only under Exemption 6. See Def's SMF ¶¶ 7-8; Complaint ¶ 12; Paskar Decl. ¶ 10. USAID argues that it withheld the information that it did because it "could not ignore the fact that local grantees' physical safety and/or liberty would be in danger if USAID disclosed the identity of those persons." Def's Mot. at 7; see Paskar Decl. ¶¶ 16-17. It is these withholdings that are at issue in this lawsuit.

In plaintiff's cross motion for summary judgment, he states that defendant "failed to provide internal annual and quarterly reports and analyses, memoranda, or other documentation relating to its funding of projects in Venezuela from 1998." Pl's Mot. at 1-2. Defendant asserts that it responded to these document requests on September 9, 2004 (a second partial response) and on March 25, 2005 (a final response), and that plaintiff did not administratively appeal from these responses. See Paskar Supp. Decl. ¶¶ 2-4; Def's Reply at 3-4.*fn2

Plaintiff does not mention the September 9, 2004 and March 25, 2005 responses in his Complaint; rather, he discusses only the August 20, 2004 response and his appeal therefrom. See Complaint ¶¶ 10-11. Plaintiff's August 28, 2004 letter states: "By means of this letter, I am appealing the August 20th, 2004 determination . . ." August 28, 2004 Letter from Jeremy Bigwood to USAID, Exh. 6 to Def's Mot. "[E]xhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA, which means that a requester under FOIA must file an administrative appeal within the time limit specified in an agency's FOIA regulations or face dismissal of any lawsuit complaining about the agency's response." Wilbur v. Central Intelligence Agency, 355 F.3d 675, 676 (D.C. Cir 2004) (internal quotations omitted). Moreover, a plaintiff may not amend his complaint through his opposition papers. See Doe I v. State of Israel, 400 F. Supp. 2d 86, 100 (D.D.C. 2005). The Court, therefore, will consider only those documents and withholdings at issue from the August 20, 2004 response to plaintiff's document request and his August 28, 2004 appeal therefrom, as pled in the complaint. On this basis, the Court grants defendant's motion for summary judgment, with respect to any responses other than the August 20, 2004 response.

With respect to the documents and withholdings made in the August 20, 2004 response, defendant asserts that it concluded that "individuals working under USAID-funded projects are in fact subject to various forms of harassment, including false or wrongful arrest" and that the "prospect of harassment, embarrassment or worse is more than sufficient to protect from disclosure the individual identifying information at issue pursuant to Exemption 6." Def's Mot. at 10; see Porter Decl. ¶¶ 9-12. In addition to withholding the names of the individuals working at USAID grant recipients, defendant also withheld the names of the employing organizations. See Def's Mot. at 12. Defendant argues that this information must be withheld to protect the privacy interests of the individuals because "[i]n Venezuela, there are not a vast number of non-governmental organizations that receive USAID funding" and therefore the disclosure of the fact that the employing organization is a USAID grant recipient could have an impact on the privacy rights of the employed individuals. Id. at 13. "The persons employed by local grant recipients could be viewed as 'CIA agents' and therefore harassed, imprisoned or worse." Id. (citing Porter Decl. Attachments A-N). Moreover, defendant argues, the individuals employed by the grantee organizations are easily identifiable once the names of the organizations are known. "Because the average size of the funded organizations is three to four, disclosing the names of the organization automatically identifies a finite group of individuals. Indeed, all of the organizations whose names have been withheld employ ten or less individuals." Def's Reply at 6-7 (citing Porter Supp. Decl. ¶ 2).

Plaintiff responds that he "is not asking the Agency to reveal any individuals' names in the responsive documents." Pl's Reply at 9. He appears to concede that the names of the individuals are protected by Exemption 6. See id.; Pl's Mot. at 13; see also Judicial Watch v. Food and Drug Admin., 449 F.3d 141, 152 (D.C. Cir 2006) (the withholding of employee names is acceptable under Exemption 6). Hence, the only information now in dispute is information with respect to the identities of the employing organizations. Plaintiff vigorously contests whether defendant may withhold information with respect to organizations or entities under Exemption 6. See Pl's Mot. at 2 (USAID "erroneously expands the exemption designed to protect individuals to also include government-funded organizations.") (emphasis in original). Defendant replies that "[w]ithholding the names of employing organizations in Venezuela that receive USAID funding is proper pursuant to exemption (b)(6) of the FOIA because disclosing the names or identifying information of these small organizations is tantamount to identifying their employees." Def's Reply at 4 (citing Porter Supp. Decl. ¶¶ 2-3). In other words, defendant is not claiming privacy rights under Exemption 6 directly on behalf of organizations, but rather it argues that it is protecting the privacy rights of individuals who work for organizations employing fewer than ten individuals by withholding the names of their employing organizations. See id.


A. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. "[A]ny factual assertions in the movant's ...

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