United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
case concerns a 2015 Freedom of Information Act
(“FOIA”) request made by Plaintiff AquAlliance to
the U.S. Army Corps of Engineers (“Army Corps”)
regarding the California Water Fix project. The Army Corps
withheld a public notice distribution list containing names
and private addresses pursuant to FOIA Exemption 6, which
covers certain personal information. The parties have filed
cross-motions for summary judgment regarding the application
of this exemption. (ECF Nos. 9, 11). For the reasons set
forth below, the Army Corps' motion is GRANTED IN PART
and DENIED IN PART, and Plaintiff's cross-motion is
submitted its FOIA request to the Sacramento District of the
Army Corps in September 2015, seeking application records
regarding Public Notice SPK-2008-00861 for the California
Water Fix project. (See Sept. 2015 FOIA Request
(Def. Ex. A)). In response, the Army Corps provided Plaintiff
with a link to the California Department of Water
Resource's website, where many of the responsive records
were already publicly accessible, and also mailed Plaintiff a
CD containing additional responsive documents. (Platt Decl.
¶¶ 8; 13-14).
of its broader request for all application records, Plaintiff
requested the public notice distribution list of names and
addresses of individuals who own property along the route of
the project. (See Platt Decl. ¶ 9). The Army
Corps withheld this document on the grounds that the
information was exempt from disclosure under FOIA Exemption
6. (Id.; Faustino Decl. ¶¶ 8-22).
Plaintiff appealed the agency's response in December
2015, and the Army Corps denied the appeal in January 2016
after determining that it had properly applied Exemption 6.
(Faustino Decl. ¶ 13; Jan. 15, 2016 Letter to B. Vlamis
(Def. Ex. K)).
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). FOIA cases are typically and
appropriately decided on motions for summary judgment.
Brayton v. Office of the U.S. Trade Rep., 641 F.3d
521, 527 (D.C. Cir. 2011). Agencies bear the burden of
justifying withholding of any records, as FOIA requires the
“strong presumption in favor of disclosure.”
Dep't of State v. Ray, 502 U.S. 164, 173 (1991).
The court therefore analyzes all underlying facts and
inferences in the light most favorable to the FOIA requester,
even where the requester has moved for summary judgment.
See Pub. Citizen Health Research Grp. v. FDA, 185
F.3d 898, 904-05 (D.C. Cir. 1999). In cases such as this,
concerning the applicability of a FOIA exemption, agencies
may rely on supporting declarations that are reasonably
detailed and non-conclusory. See, e.g., ACLU v.
U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir.
2011); Students Against Genocide v. Dep't of
State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If an
agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone.” ACLU, 628
F.3d at 619. “Ultimately, an agency's justification
for invoking a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Id. (internal quotation marks omitted) (quoting
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009)). However, a motion for summary judgment
should be granted in favor of the FOIA requester where
“an agency seeks to protect material which, even on the
agency's version of the facts, falls outside the
proffered exemption.” Coldiron v. U.S. Dep't of
Justice, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (quoting
Petroleum Info. Corp. v. Dep't of Interior, 976
F.2d 1429, 1433 (D.C. Cir. 1992)).
Adequacy of Search
Count I of its Complaint, Plaintiff alleges that Defendant
conducted an inadequate search in violation of FOIA, 5 U.S.C.
§ 552(a)(3)(C), which requires that an agency
“make reasonable efforts to search for the records in
electronic form or format, except when such efforts would
significantly interfere with the operation of the
agency's automated information system.” (Compl.
¶¶ 13-15). Defendant moved for summary judgment on
this claim, as well as on the issue of whether the agency
disclosed all reasonably segregable information. In its
Response and cross-motion, Plaintiff conceded that the search
was reasonable and failed to respond to the issue of
segregability. (See Pl. Mem. at 2). Because
Plaintiff has conceded this claim and issue, Defendant's
motion for summary judgment is GRANTED as to Count I.
FOIA Exemption 6
remaining claim, Plaintiff alleges that the Army Corps
unlawfully withheld responsive records under FOIA Exemption
6. (Compl. ¶¶ 16-18). Exemption 6 permits the
withholding of “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). Agencies (and courts) must engage in a
four-step analysis to determine whether information is
protected from disclosure under this exemption. First, the
text of the statute requires that the agency determine
whether each document is a personnel, medical, or
“similar” file. Next, the agency must determine
if the individuals identified in the documents have a
significant privacy interest in the requested information.
Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229
(D.C. Cir. 2008). Third, the agency must evaluate the
strength of any potential public interest in disclosure.
See NARA v. Favish, 541 U.S. 157, 172 (2004).
Finally, the agency must balance the privacy interest with
the public interest and determine whether disclosure
“would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6).
the first step, the parties agree that the withheld
information is a “similar file” under the FOIA
exemption. The court must next identify whether
“disclosure would compromise a substantial, as opposed
to a de minimis, privacy interest.”
Nat'l Ass'n of Retired Fed. Emps. v. Horner,
879 F.2d 873, 874 (D.C. Cir. 1989). The Supreme Court has
made clear that “disclosure of a list of names and
other identifying information” does not inherently
violate individuals' privacy interest. Dep't of
State v. Ray, 502 U.S. 164, 176 n.12 (1991). Instead,
“whether disclosure of a list of names is a
‘significant or a de minimis threat depends
upon the characteristic(s) revealed by virtue of being on the
particular list, and the consequences likely to
ensue.'” Id. (quoting Horner, 879
F.2d at 877). However, the Supreme Court has also expressed
“a reluctance in the FOIA context ‘to disparage
the privacy of the home.'” See Nat'l
Ass'n of Home Builders v. Norton, 309 F.3d 26, 35
(D.C. Cir. 2002) (quoting U.S. Dep't of Def. v.
FLRA, 510 U.S. 497, 501 (1994)). The inquiry is thus
fact-specific. In Horner, the D.C. Circuit
considered disclosure of a list that contained names and
private addresses, as well as whether each person received a
monthly annuity payment from the federal government. 879 F.2d
at 876. The court found a significant privacy interest
because the list had “apparent commercial value”
and “interested businesses, charities, and individuals
could, and undoubtedly would, subject the listed annuitants
to an unwanted barrage of mailings and personal
solicitations.” Id. at 876-77 (internal
quotation omitted). The court in Norton similarly
identified at least a weak privacy interest when it
considered a list of addresses showing where certain owls had
been sighted, determining that the addresses could be linked
to individuals' names through public records and those
individuals could be subjected to unwanted trespassing on
their properties. 309 F.3d at 34-36.
the court must evaluate what, if any,
“characteristic(s) [are] revealed by virtue of being on
the particular list, and the consequences likely to
ensue.” Ray, 502 U.S. at 176 n.12. The Army
Corps does not contend that the list reveals anything about
the individuals on it apart from the location of their
properties. Therefore, it must argue that individuals would
still be “subject[ed] . . . to an unwanted barrage of
mailings and personal solicitations.” Horner,
879 F.2d at 876. To do so, the Army Corps asserts that
“once that information is released [the individuals]
could become targets of harassing inquiries and uninvited
solicitation if their identities are released simply because
of their proximity to the project.” (Faustino Decl.
¶ 21). The Army Corps did not elaborate on the nature or
source of these “harassing” and
“uninvited” contacts, nor did it provide the
court with anything beyond speculation regarding the results
of disclosing the distribution list. It appears that the only
information revealed about the individuals on the list is
that their properties are adjacent to the proposed project,
which is information any individual could discern from simply
looking at property records or a map of the area. Indeed,