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National Public Radio Inc. v. Federal Emergency Management Agency

United States District Court, District of Columbia

November 21, 2017

NATIONAL PUBLIC RADIO, INC., et al. Plaintiffs,
v.
FEDERAL EMERGENCY MANAGEMENT AGENCY, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         The 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.

         I. BACKGROUND

         Congress 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.

         Since 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.

         Plaintiff 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. ¶ 5.[1]

         Plaintiff 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.

         Benincasa 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 face.” Id.

         On 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.

         FEMA's 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.

         II. LEGAL STANDARD

         Federal 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).

         The 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).

         In 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)).

         An 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)).

         The 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.”).

         III. ...


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