United States District Court, District of Columbia
NATIONAL PUBLIC RADIO, INC., et al. Plaintiffs,
FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.
A. HOWELL CHIEF JUDGE
plaintiffs, National Public Radio, Inc. (“NPR”)
and Robert Benincasa, a journalist at NPR, seek, under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, records from the defendants, Federal Emergency
Management Agency (“FEMA”) and U.S. Department of
Homeland Security (“DHS”), regarding FEMA's
Hazard Mitigation Grant Program (“HMGP”).
Pls.' Mem. Supp. Mot. Summ. J. & Opp'n Defs.'
Mot. Summ. J. (“Pls.' Opp'n”) at 1, ECF
No. 9-1. FEMA produced 66 documents in response to the
plaintiffs' request, but withheld records relating to the
names of HMGP sellers, as well as addresses and GIS
coordinates of properties FEMA acquired through the program.
The defendants invoked FOIA Exemption 6, which protects
“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), to justify these withholdings. After
unsuccessfully appealing the defendants' withholdings,
the plaintiffs filed this suit. The parties have now filed
cross-motions for summary judgment. Defs.' Mot. Summ. J.
(“Defs.' Mot.”), ECF No. 8; Pls.'
Cross-Mot. Summ. J. (“Pls.' Mot.”), ECF No.
9. For the reasons stated below, the plaintiffs' motion
is granted and the defendants' motion is denied.
authorized the HMGP to “substantially reduce the risk
of future damage, hardship, loss, or suffering in any area
affected by a major disaster.” 42 U.S.C. §
5170c(a). The program provides grants to states, Indian
tribes, and private nonprofit organizations with
hazard-mitigation plans that serve the program's goal of
providing cost-effective risk reduction in designated
disaster areas. See id.; 44 C.F.R. §§
206.433, 206.434(a). FEMA administers the HMGP in conjunction
with states, tribes, local governments, and private nonprofit
organizations. 42 U.S.C. § 5170c(b)(1); 44 C.F.R. §
206.434(a). A permissible use of HMGP funds is the purchase
of flood-prone properties, subject to certain requirements.
42 U.S.C. § 5170c(b)(1) (authorizing hazard mitigation
assistance in connection with flooding); see 44
C.F.R. §§ 80.11(a) (requiring voluntary
participation of the property's seller and restricting
the use of eminent domain), 80.11(d) (requiring the applicant
to retain full property interest), 80.17(c)(1) (requiring
FEMA to pay either pre-disaster or current market value),
80.17(c)(4) (allowing FEMA to pay pre-disaster value only to
a property owner who “own[ed] the property at the time
of the relevant event” and is “a National of the
United States or a qualified alien”). States and tribes
thus may use grant funds to purchase properties that have
been impacted by natural disasters. 42 U.S.C. §
5170c(b)(1). FEMA then publicizes, on its website, certain
information related to the purchase. Pls.' Mot., Attach.
3, Decl. of Robert Benincasa (“NPR Decl.”) ¶
8, ECF No. 9-3.
2000, the HMGP has distributed approximately $750 million to
states and tribes that has been used to purchase over 10, 000
properties, none of which has FEMA publicly identified by
address, Geographic Information System (“GIS”)
coordinates, or seller. NPR Decl. ¶¶ 9-10, 12. FEMA
only publicly identifies the state, county, city, and ZIP
code of those properties obtained through HMGP grants.
Id. ¶ 12.
NPR is a non-profit media organization that provides
non-commercial news and information programming to the
American public. Id. ¶ 3. NPR has used
government records to publish news stories about government
activities, including accounts of racially-selective World
War II-era chemical weapons testing, the Mine Safety and
Health Administration's failure to collect millions of
dollars in safety fines from coal-mine operators, and the
anomalously high rate of inmate-on-inmate violence in a
central Pennsylvania prison. Id. ¶
Benincasa is a Computer-Assisted-Reporting Producer in
NPR's Investigations Unit, which performs traditional
journalistic fact gathering as well as data analysis.
Id. ¶¶ 1, 6. Benincasa learned of the HMGP
during the fall of 2014, while investigating “options
for coastal communities in light of sea levels.”
Id. ¶ 7. He discovered in the course of his
research that the program had funded the purchase of many
properties located in inland rather than coastal states.
Id. ¶ 14. In addition, Benincasa discovered
reports by DHS's Office of the Inspector General
(“OIG”) detailing numerous instances of HMGP
mismanagement, including (1) overpayment of $146, 617 to a
Mississippi county due to use of an incorrect federal cost
share rate, (2) expenditure of $929, 379 in ineligible or
unsupported project costs related to projects in a Louisiana
parish, (3) the state of Louisiana's improper grant
management, (4) FEMA's failure to establish periods of
performance for each approved project, and (5) payment of
duplicative benefits. Id. ¶ 27.
was “unable to meaningfully evaluate whether the HMG[P]
[wa]s being operated consistent with the applicable legal
constraints, whether the [p]rogram funds [we]re being spent
wisely, and whether the [p]rogram [wa]s achieving its stated
purpose of disaster mitigation, ” however,
“[w]ithout knowing which properties have been purchased
with HMG[P] funds or the identities of the individuals who
sold them.” Id. ¶ 21. Without this
information, Benincasa could not determine whether (1)
“FEMA [wa]s complying with applicable statutory and
regulatory requirements in determining which property
purchases to approve;” (2) “individuals who sold
properties through the HMG[P] participated in the [p]rogram
voluntarily;” (3) “individuals who sold
properties through the HMG[P] received fair market value for
their properties;” (4) “individuals who, in
selling properties through the HMG[P], received pre-disaster
market value were eligible to do so;” (5) “the
properties have been used consistent with the applicable
land-use restrictions;” (6) “FEMA, other
agencies, and funds recipients have complied with the
restrictions on future federal disaster assistance;”
(7) “any governmental officials have engaged in
improper self-dealing;” and (8) “FEMA (as well as
state and local governments) has been spending its millions
of dollars of HMG[P] funds in a way that is proportional to
the risks of disaster that various eligible properties
September 9, 2014, Benincasa submitted a FOIA request to FEMA
on NPR's behalf seeking “access to and copies of
electronic database tables containing the data in the
possession and/or control of FEMA in association with
property acquisitions under the Hazard Mitigation Grant
Program or similar program(s).” Defs.' Mot. Summ.
J., Ex. A, NPR FOIA Request at 1, ECF No. 8-2. Although, as
noted, FEMA publicly releases limited state, county, city,
and ZIP code information in the dataset about HMGP property
purchases, Benincasa pointed out that the publicly available
information “lacks basic public information [about] the
property acquisitions, such as the address of the properties
acquired, the sellers' names, the amount paid for the
property and the GIS coordinates of the properties.”
Id. Benincasa also sought “documentation or
meta-data associated with any and all data tables related to
the dataset . . . includ[ing] but not . . . limited to any
coding manuals, record layouts, relational models and data
dictionaries, including all references to any fields withheld
by FEMA in response to this request.” Id.
Disclosure Branch reviewed the request, conducted a search,
and released 66 pages of documents to the plaintiffs eleven
months after the initial request. Defs.' Mot., Attach. I,
Decl. of Eric Neuschaefer (“Defs.' Decl.”)
¶ 4, ECF No. 8-1. In responding to the FOIA request,
FEMA withheld the sellers' names, as well as the
addresses and GIS coordinates of the properties they sold.
Id. ¶ 7. Invoking Exemption 6, FEMA argued that
“the names, addresses, and GIS coordinates do not shed
additional light on how FEMA conducts property acquisitions
under the HMGP, yet their release would likely subject these
individuals to unwanted public scrutiny.” Id.
NPR filed a timely administrative appeal, Compl., Ex. C,
Freedom of Information Act Appeal, ECF No. 1-3, which FEMA
denied, Compl., Ex. D, Letter from Eric M. Leckey, Chief
Admin. Officer (Acting), FEMA, to Peter C. Canfield, Esq.
(Nov. 16, 2015), ECF No. 1-4. This suit followed.
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “In FOIA cases, ‘summary judgment may be
granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.'” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (quoting Consumer Fed'n of Am. v. U.S.
Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir.
2006)). Indeed, the D.C. Circuit has observed that “the
vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
FOIA was enacted “to promote the ‘broad
disclosure of Government records' by generally requiring
federal agencies to make their records available to the
public on request.” DiBacco v. U.S. Army, 795
F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of
Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the
necessary balance between the public's interest in
governmental transparency and “legitimate governmental
and private interests that could be harmed by release of
certain types of information, ” United Techs. Corp.
v. U.S. Dep't of Defense, 601 F.3d 557, 559 (D.C.
Cir. 2010) (quoting Critical Mass. Energy Project v.
Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.
Cir. 1992) (en banc) (alterations omitted)), the FOIA
contains nine exemptions, set forth in 5 U.S.C. §
552(b), which “are explicitly made exclusive and must
be narrowly construed, ” Milner v. U.S. Dep't
of Navy, 562 U.S. 562, 565 (2011) (internal quotation
marks and citations omitted); see also Murphy v. Exec.
Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir.
2015); Citizens for Responsibility & Ethics in Wash.
v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088
(D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt.
& Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).
“[T]hese limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant
objective of the Act.” Dep't of Air Force v.
Rose, 425 U.S. 352, 361 (1976).
litigation challenging the sufficiency of “the release
of information under the FOIA, ‘the agency has the
burden of showing that requested information comes within a
FOIA exemption.'” Pub. Citizen Health Research
Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C.
Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S.
Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999));
see also U.S. Dep't of Justice v. Landano, 508
U.S. 165, 171 (1993) (noting that “[t]he Government
bears the burden of establishing that the exemption
applies”); Fed. Open Mkt. Comm. of Fed. Reserve
Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to
establish that the requested information is exempt”);
Elec. Frontier Found. v. U.S. Dep't of Justice,
739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift
even when the requester files a cross-motion for summary
judgment because “the Government ‘ultimately
[has] the onus of proving that the [documents] are exempt
from disclosure, '” while the “burden upon
the requester is merely ‘to establish the absence of
material factual issues before a summary disposition of the
case could permissibly occur, '” Pub. Citizen
Health Research Grp., 185 F.3d at 904-05 (quoting
Nat'l Ass'n of Gov't Emps. v. Campbell,
593 F.2d 1023, 1027 (D.C. Cir. 1978)).
agency may carry its burden of showing an exemption was
properly invoked by submitting sufficiently detailed
affidavits or declarations, a Vaughn index of the
withheld documents, or both, to demonstrate that the
government has analyzed carefully any material withheld and
provided sufficient information as to the applicability of an
exemption to enable the adversary system to operate. See
Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA
cases, ‘summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they
are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.'”
(alteration adopted) (quoting Consumer Fed'n of
Am., 455 F.3d at 287)); CREW, 746 F.3d at 1088
(noting that an agency's burden is sustained by
submitting an affidavit that “‘describe[s] the
justifications for nondisclosure with reasonably specific
detail, demonstrate[s] that the information withheld
logically falls within the claimed exemption, and [is] not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith'” (quoting Larson
v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir.
2009))); Oglesby v. U.S. Dep't of Army, 79 F.3d
1172, 1176 (D.C. Cir. 1996) (instructing that an agency's
description “should reveal as much detail as possible
as to the nature of the document, without actually disclosing
information that deserves protection[, ] . . . [which] serves
the purpose of providing the requestor with a realistic
opportunity to challenge the agency's decision.”)
(internal citation omitted). While “an agency's
task is not herculean” it must “‘describe
the justifications for nondisclosure with reasonably specific
detail' and ‘demonstrate that the information
withheld logically falls within the claimed
exemption.'” Murphy, 789 F.3d at 209
(quoting Larson, 565 F.3d at 862).
“Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Judicial Watch, Inc. v. U.S. Dep't of Defense,
715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S.
Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011)); Larson, 565 F.3d at 862 (quoting Wolf v.
CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
FOIA provides federal courts with the power to “enjoin
the agency from withholding agency records and to order the
production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District
courts must “determine de novo whether
nondisclosure was permissible, ” Elec. Privacy
Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d
518, 522 (D.C. Cir. 2015), by reviewing the Vaughn
index and any supporting declarations “to verify the
validity of each claimed exemption.” Summers v.
U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.
Cir. 1998). In addition, the court has an “affirmative
duty” to consider whether the agency has produced all
segregable, non-exempt information. Elliott v. U.S.
Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010)
(referring to court's “affirmative duty to consider
the segregability issue sua sponte”) (quoting
Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United
States, 534 F.3d 728, 734 (D.C. Cir. 2008)
(“[B]efore approving the application of a FOIA
exemption, the district court must make specific findings of
segregability regarding the documents to be withheld.”)
(quoting Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116 (D.C. Cir. 2007)); Trans-Pac. Policing
Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028
(D.C. Cir. 1999) (“[W]e believe that the District Court
had an affirmative duty to consider the segregability issue
sua sponte . . . even if the issue has not been
specifically raised by the FOIA plaintiff.”); see
also 5 U.S.C. § 552(b) (“Any reasonably
segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions
which are exempt under this subsection.”).