Bader Family Foundation v. United States Department of Education

• Court: District Court, District of Columbia
• Decided: September 20, 2022
• Docket: Civil Action No. 2021-1741
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BADER FAMILY FOUNDATION,

Plaintiff,

v. No. 21-cv-1741 (DLF) UNITED STATES DEPARTMENT OF EDUCATION,

Defendant.

MEMORANDUM OPINION

The Bader Family Foundation (the Foundation) alleges that the Department of Education

(the Department) violated the Freedom of Information Act (FOIA), 5 U.S.C. § 552, by performing

an inadequate search and improper redactions in response to its FOIA request. Compl., Dkt. 1.

Before the Court are the Department’s Motion for Summary Judgment, Dkt. 12, and the

Foundation’s Cross-Motion for Summary Judgment, Dkt. 15. For the reasons that follow, the

Court will grant in part and deny in part both motions.

I. BACKGROUND

On May 21, 2021, the Foundation submitted a FOIA request to the Department for certain

records related to school disciplinary policies. Compl. ¶ 2. Specifically, the Foundation requested

“[e]mails about school discipline or school disciplinary policies sent or received by Carolyn

Seugling or any presidential appointee or political appointee or Schedule C employee in the Office

for Civil Rights . . . that were also sent or received by any of” a list of twelve people or email

accounts. Minami Decl. Ex. A at 1, Dkt. 12-4. The request sought emails from January 20, 2021

to June 18, 2021 or the date of the search, whichever was earlier. Id. Finally, it specified that “[e]mails are covered regardless of whether they are in an official Education Department email

account, or an Education Department employee’s non-official or private email account.” Id.

According to its affidavit, the Department conducted an administrative search on the email

accounts of Carolyn Seugling, Suzanne Goldberg, Monique Dixon, and three others, the political

appointees in the Office for Civil Rights at that time. Minami Decl. ¶¶ 6–7, Dkt. 12-3. It searched

only their government email accounts. Def.’s Resp. to Pl.’s Stmt. of Material Facts ¶ 28, Dkt. 16-

1. The search terms it used were “school discipline” and “school disciplinary policies.” Minami

Decl. ¶ 6. Finally, the search parameters specified that the emails must be sent to or from any of

the people or email addresses listed in the Foundation’s request. Id. The search yielded 357 pages

of responsive records. Id. ¶ 16. Upon review, a Department employee redacted personal

information on 18 pages under FOIA Exemption 6. Id. ¶ 19.

The Foundation first brought this suit on June 30, 2021, because it had not yet received any

records. Compl. ¶¶ 4–6. The Department subsequently produced the 357 pages on August 30,

2021. Minami Decl. ¶ 19. After receiving the documents, the Foundation requested that the

Department also search Goldberg’s non-government, Columbia Law School email account. Bader

Decl. ¶ 1, Dkt. 14-2. The Department did not do so. Id.; Def.’s Resp. to Pl.’s Stmt. of Material

Facts ¶ 25. The Foundation challenges the adequacy of the search for that reason and because the

Department failed to produce certain known responsive emails. In addition, the Foundation

challenges many of the Department’s Exemption 6 redactions.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure states that “[t]he court shall grant summary

judgment 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). “Materiality is, of course,

2 a function of the applicable legal standard, which in this case is that an agency responding to a

FOIA request must conduct a search reasonably calculated to uncover all relevant documents, and,

if challenged, must demonstrate beyond material doubt that the search was reasonable.”

Kowalczyk v. DOJ, 73 F.3d 386, 388 (D.C. Cir. 1996) (internal quotation marks omitted). All facts

and inferences must be viewed in the light most favorable to the requester and the agency bears

the burden of showing that it complied with FOIA. Chambers v. U.S. Dep’t of Interior, 568 F.3d

998, 1003 (D.C. Cir. 2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls within

the class requested either has been produced, is unidentifiable, or is wholly exempt from the

[FOIA’s] inspection requirements.” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per

curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA is

simple in theory. A federal agency must disclose agency records unless they may be withheld

pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian,

486 U.S. 1, 8 (1988). “The peculiarities inherent in FOIA litigation, with the responding agencies

often in sole possession of requested records and with information searches conducted only by

agency personnel, have led federal courts to rely on government affidavits to determine whether

the statutory obligations of the FOIA have been met.” Perry, 684 F.2d at 126. Agency affidavits

are entitled to a presumption of good faith, SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991), and “[s]ummary 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 Service, 726 F.3d 208, 215 (D.C. Cir. 2013) (internal

quotation marks omitted).

3 Courts in this jurisdiction recognize that “the vast majority of FOIA cases can be resolved

on summary judgment.” Brayton v. Off. of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir.

2011). If, however, “material facts are genuinely in issue or, though undisputed, are susceptible

to divergent inferences bearing upon an issue critical to disposition of the case, summary judgment

is not available” to the agency. Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314 (D.C. Cir.

1988).

III. ANALYSIS

A. The Adequacy of the Search

In general, the adequacy of a search “is judged by a standard of reasonableness and

depends, not surprisingly, upon the facts of each case.” Weisberg v. DOJ, 745 F.2d 1476, 1485

(D.C. Cir. 1984). “The agency has the initial burden to demonstrate the adequacy of its search,

which it may meet by providing declarations or affidavits that are ‘relatively detailed[,] . . .

nonconclusory and submitted in good faith.’” Landmark Legal Found. v. EPA, 959 F. Supp. 2d

175, 181 (D.D.C. 2013) (internal quotation marks omitted). “Once the agency has provided a

reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to

produce ‘countervailing evidence’ suggesting that a genuine dispute of material fact exists as to

the adequacy of the search.” Hunton & Williams LLP v. EPA, 248 F. Supp. 3d 220, 236 (D.D.C.

2017) (citing Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007)).

The Department submitted a declaration from Kristine Minami, the employee responsible

for administering this FOIA request, which describes the search process and parameters in

reasonable detail. See Minami Decl. ¶¶ 1–2, 6–19; see also SafeCard, 926 F.2d at 1201 (approving

of affidavit submitted by the employee who coordinated and supervised the search). The

Foundation contends that the search was inadequate because it failed to (1) use broader search

4 terms and (2) include Suzanne Goldberg’s non-government email account. See Pl.’s Cross-Mot.

for Summary Judgment at 2–6, Dkt. 15. The Court agrees. It will accordingly deny the

Department’s motion for summary judgment as to the adequacy of the search, and grant in part

and deny in part the Foundation’s motion.

1. Failure to use broader search terms

“In general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request.”

Bigwood v. DOD, 132 F. Supp. 3d 124, 140 (D.D.C. 2015). The agency retains “discretion in

crafting a list of search terms that they believe[] to be reasonably tailored to uncover documents

responsive to the FOIA request.” Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d

313, 339 (D.D.C. 2015) (internal quotation marks omitted). “Where the agency’s search terms are

reasonable, the Court will not second guess the agency regarding whether other search terms might

have been superior.” Liberation Newspaper v. Dep’t of State, 80 F. Supp. 3d 137, 146–47 (D.D.C.

2015). But ultimately, “it is the agency’s burden to show ‘beyond material doubt that its search

was reasonably calculated to uncover all relevant documents.’” Gov’t Accountability Project v.

DHS, 335 F. Supp. 3d 7, 11 (D.D.C. 2018) (quoting Ancient Coin Collectors Guild v. U.S. Dep’t

of State, 641 F.3d 504, 514 (D.C. Cir. 2011)).

In this case, the Department used exactly two search terms—“school discipline” and

“school disciplinary policies”—to search for records satisfying the Foundation’s request for

“[e]mails about school discipline or school disciplinary policies.” Minami Decl. ¶¶ 4, 6. That

decision was unreasonable because searching “for [a] phrase verbatim [is] always doomed to return

limited results.” Gov’t Accountability Project, 335 F. Supp. 3d at 11. Most notably, the search

excluded any emails that contained even the slightest modifications of those terms. For instance,

the Department’s search could not have uncovered emails discussing “policies for disciplining

5 students in school,” or even “school disciplinary policy.” At the very least, the Department should

have included “logical variations” of the phrases and decoupled search terms, rather than

“group[ing] the words together.” Id. at 11–12.

For the same reason, the Department should have included “obvious substitutes” for the

words used in the Foundation’s FOIA request—“school,” “discipline,” and “policy.” See id. at 11

(search should have included synonyms for requested terms “test” and “ideological”); see also

Summers v. DOJ, 934 F. Supp. 458, 461 (D.D.C. 1996) (search should have included obvious

alternate terms for FOIA request seeking “any and all commitment calendars”); Brennan Ctr. for

Just. at N.Y.U. Sch. of L. v. DOJ, 377 F. Supp. 3d 428, 434–35 (S.D.N.Y. 2019) (search should

have included obvious alternate terms for “election integrity commission”). The agency “has a

duty to construe a FOIA request liberally.” Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71

F.3d 885, 890 (D.C. Cir. 1995). And the request sought all emails “about” school discipline or

disciplinary policy, not just ones using those exact phrases. See id. (noting that the appellants

sought records “pertaining to” Ross Perot’s offers to assist the government in drug interdiction

efforts, not just those indexed under his name). By not including obvious synonyms, the

Department did not “us[e] methods which [could] be reasonably expected to produce the

information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

Construing the Foundation’s request liberally, rather than literally, would not render the

request too vague, as the Department argues, see Def.’s Reply at 16–17, Dkt. 16. The cases the

Department cites on this point are not analogous to this case, as each dealt with requests so

“overbroad” that they “did not describe the records sought sufficiently to allow a professional

employee familiar with the area in question to locate the responsive records.” Freedom Watch,

Inc. v. U.S. Dep’t of State, 925 F. Supp. 2d 55, 61–62 (D.D.C. 2013); see Def.’s Reply at 15–16.

6 Each of the cited cases considered FOIA requests for all documents “pertaining in whole or in

part,” Sack v. CIA, 53 F. Supp. 3d 154, 163 (D.D.C. 2014), or “relat[ing] in any way,” Cable News

Network, Inc. v. FBI, 271 F. Supp. 3d 108, 112 (D.D.C. 2017), to a certain topic. These requests

were “too vague” because “all documents ‘relate’ to all others in some remote fashion.’” Id.

(quoting Freedom Watch, 925 F. Supp. 2d at 61); see also Fonda v. CIA, 434 F. Supp. 498, 501

(D.D.C. 1977); Hunt v. CFTC 484 F. Supp. 47, 51 (D.D.C. 1979).

Not so here. A request for documents “about” school discipline is hardly so shapeless and

unwieldy that a professional employee familiar with the concept would be unable to locate

responsive records. Rather, that task can be easily accomplished by searching for logical

variations, obvious alternatives, and groups of words appearing near each other. The Department

failed to do so here.

Indeed, there are “positive indications of overlooked materials” that cast further doubt on

the adequacy of the Department’s search. Reps. Comm. for Freedom of Press v. FBI, 877 F.3d

399, 402 (D.C. Cir. 2017) (quotation marks omitted). The Department stated that it searched for

and provided all emails between Goldberg’s government email address and an individual named

Fred Woehrle, using the terms “school discipline” or “school disciplinary policies,” from January

21 to June 18, 2021. Minami Decl. ¶ 6. But the Foundation has identified at least two emails that

meet these exact parameters—yet were not produced. See Bader Decl. Ex. 3, Dkt. 14-2 (May 11

email from Woehrle to Goldberg’s government address with subject “Examining Disparities in

School Discipline and the Pursuit of Safe and Inclusive Schools”); Suppl. Bader Decl. Ex. 2, Dkt.

18-1 (May 12 email from Goldberg’s government address to Woehrle with same subject line). The

Department concedes that its search should have captured them, but did not. Def.’s Reply at 7;

Def.’s Resp. to Pl.’s Stmt. of Material Facts ¶ 22. Their nonproduction is thus “countervailing

7 evidence” putting into genuine issue “the sufficiency of the agency’s identification or retrieval

procedure.” Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979).

It is true that this Circuit has long held “the agency’s failure to turn up a particular

document, or mere speculation that as yet uncovered documents might exist, does not undermine

the determination that the agency conducted an adequate search for the requested records.” Wilbur

v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); see also Ancient Coin Collectors, 641 F.3d at 514;

Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir. 1986). However, those cases largely involve

“[m]ere speculation that as yet uncovered documents may exist.” Iturralde v. Comptroller of

Currency, 315 F.3d 311, 316 (D.C. Cir. 2003) (emphasis added and quotation marks omitted); see

also Ancient Coin Collectors, 641 F.3d at 514; SafeCard, 926 F.2d at 1201 (explaining that the

unproduced documents were “presumably nonexistent”); Carlborg v. Dep’t of the Navy, No. 18-

CV-1881, 2020 WL 4583270, at *6 (D.D.C. Aug. 10, 2020) (explaining that there was “no

evidence to support [plaintiff’s] claims” that unproduced documents existed). 1 This case, in

contrast, involves “concrete evidence from [the appellants] that such files actually exist.”

Meeropol, 790 F.2d at 954 (emphasis added).

Moreover, many of those cases—dating before the age of computerized searches—reason

that “[i]t would be unreasonable to expect even the most exhaustive search to uncover every

responsive file,” given human error that may arise when manually searching numerous boxes. Id.

at 953. But while human error could lead a “reasonable and thorough search” to “miss[]” particular

documents, Iturralde, 315 F.3d at 315, the same cannot be said for a computerized email search.

1 For this reason, the Foundation’s general skepticism about the search’s failure to return any emails to or from either Woehrle or Goldberg, see Pl.’s Opp’n at 15–17, is not itself persuasive. See Meeropol, 790 F.2d at 953–54; Ancient Coin Collectors, 641 F.3d at 514. The Court focuses only on the concrete evidence of missed documents.

8 A computer does not inadvertently overlook documents falling within particular search

parameters.

It is possible that the emails were not produced because they were “destroyed,” i.e., deleted.

See id.; Wilbur, 355 F.3d at 678. But the Department never asserts that. And it has offered no

explanation for the missing emails, see Morley, 508 F.3d at 1120 (agency’s failure to explain

record’s absence foreclosed summary judgment), much less conducted any follow-up search after

missing records were brought to its attention, see, e.g., Carlborg, 2020 WL 4583270, at *5. The

missing emails suggest that something may have gone wrong with the query or the production,

and they provide additional justification for denying the Department’s motion for summary

judgment. See Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (denying summary

judgment because missing records left “substantial doubt as to the sufficiency of the search”);

Weisberg v. DOJ, 627 F.2d 365, 369 (D.C. Cir. 1980) (explaining summary judgment was

inappropriate due to a factual question as to whether a document was destroyed).

Because the Department did not fulfill its duty to craft reasonable search terms, the

Foundation’s motion for summary judgment on this score is granted, and the Department’s motion

is denied. The Department is ordered to conduct an additional search. This is not to say that the

Department must search its records for any particular synonym or type of school discipline, see

Pl.’s Opp’n to Def.’s Mot. for Summary Judgment at 20, Dkt. 14, because a search “need not be

perfect, only adequate,” Meeropol, 790 F.2d at 956, it must be “reasonably calculated to uncover

all relevant documents,” Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To that end,

the parties shall meet and confer within fourteen days to “engage in a good faith effort to arrive at

a reasonably limited set of additional search terms that rectify the under-inclusivity . . . without

9 being too over-inclusive.” Gov’t Accountability Project, 335 F. Supp. 3d at 13; Bagwell v. DOJ,

311 F. Supp. 3d 223, 230 (D.D.C. 2018).

2. Failure to search non-government email account

This Circuit has made clear that “agency records”—even those stored on a personal email

account—are subject to FOIA. Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d

145, 149 (D.C. Cir. 2016). Nonetheless, courts presume that agency records are unlikely to be

found solely on personal email accounts, since federal law and regulations prohibit officials from

using them for official business without forwarding to or copying their official account. Judicial

Watch, Inc. v. DOJ, 319 F. Supp. 3d 431, 437–38 (D.D.C. 2018) (citing cases); see also Democracy

Forward Found. v. U.S. Dep’t of Com., 474 F. Supp. 3d 69, 74 (D.D.C. 2020); 44 U.S.C. § 2911(a).

A plaintiff can overcome this presumption with evidence that “rebut[s] agency affidavits with

something more than pure speculation.” Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 241

F. Supp. 3d 14, 22 (D.D.C. 2017) (internal quotation marks omitted). The Foundation has done

so here.

The Foundation has provided concrete evidence that agency records may be found on

Goldberg’s Columbia Law School email account. The Foundation points to at least three emails

on the school account that were addressed to Goldberg using her official title, and all three

discussed school discipline policy. 2 See Bader Decl. Exs. 1, 2; Scanlan Decl. Ex. 1, Dkt. 14-3.

The receipt of government-related emails has been relevant evidence to rebut the presumption in

2 That Goldberg might receive official emails, particularly from the public, at her school email address is unsurprising, given that the school’s public website appears to welcome public emails to that address. The website, which holds Goldberg out as the current “deputy assistant secretary for Strategic Operations and Outreach in the Office for Civil Rights (serving as acting assistant secretary) at the U.S. Department of Education,” lists her school email address as her “contact” information. See Bader Decl. Ex. 4, Dkt. 14-2.

10 other cases. See, e.g., Democracy Forward, 474 F. Supp. 3d at 75 (analyzing evidence concerning

“all Commerce-related emails . . . sent or received through [Secretary’s] personal email accounts,”

not just “those emails the [he] sent” (emphasis in original)); Brennan Ctr., 377 F. Supp. 3d at 435

(noting that an official “received emails discussing election integrity[] on [her] private email

account[]”).

Although the record is devoid of any instance where Goldberg sent an official email from

her school address, that absence of evidence alone does not prove that Goldberg did not use her

school account for government business. Notably, the Department’s declaration does not address

Goldberg’s school email at all. See generally Minami Decl. It does not state, for example, that

Goldberg did not use her school email account for official business, that a search of her school

account “was [un]likely to produce responsive documents,” Oglesby, 920 F.2d at 68, or even that

the Department searched “all [places] likely to contain responsive materials,” id. The

Department’s “silence” on this issue “speaks volumes.” Landmark Legal Found., 959 F. Supp. 2d

at 182. Given at least “one concrete example” of Department-related communication on the school

email, the Department’s “failure to deny the allegations that personal accounts were being used to

conduct official business leaves open the possibility that they were.” Id.; compare Democracy

Forward, 474 F. Supp. 3d at 76 (search of personal email account was reasonable where there was

some evidence of official use and the agency “has not proven—either through a sworn declaration

or other evidence—that the official” complied with forwarding procedures), with Competitive

Enter. Inst., 241 F. Supp. 3d at 21–22 (search of personal email account not reasonable where the

agency provided sworn affidavit by the official that he complied with forwarding procedures).

In sum, on the existing record, there is simply not enough information to determine whether

agency records are likely to be found in Goldberg’s school email account. Because a genuine

11 dispute of material fact still exists, summary judgment is not appropriate, and both motions are

denied. See Reps. Comm. for Freedom of Press, 877 F.3d at 402. The Department shall

supplement the record with a sworn declaration that provides specific information addressing

whether Goldberg’s school email account was used, even sporadically, for official business, and,

if appropriate, the Department shall direct Goldberg to search her school account. See Brennan

Ctr., 377 F. Supp. 3d at 435–36 (requiring the agency to “ask [the employee] if [she] used private

email accounts relating to the [agency’s] business and, if so, to produce the documents”).

B. Exemption 6

Of the documents that the Department has produced, it has made thirteen total redactions,

all under FOIA Exemption 6. See Def.’s Suppl. Vaughn Index, Dkt. 20-1. Exemption 6 allows

agencies to withhold certain information when disclosing it would result in a “clearly unwarranted

invasion of personal privacy” and involves balancing privacy and public interests. Judicial Watch,

Inc. v. FDA, 449 F.3d 141, 152–53 (D.C. Cir. 2006). It is the agency’s burden to show that

redactions fall under a FOIA exemptions, 5 U.S.C. 552(a)(4)(B), which the agency may meet with

a sufficiently detailed Vaughn index describing each redaction and its basis. Nat’l Treas. Emps.

Union v. U.S. Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986); Vaughn v. Rosen, 484 F.2d 820,

828 (D.C. Cir. 1973).

The Department’s Vaughn index shows that it primarily redacted personal contact

information: email addresses of various private individuals, 3 Dixon’s cell phone number, and

3 While the Foundation does not appear to challenge the appropriateness of redacting private parties’ email addresses, it questions whether the redactions really are just that and asks the Court to conduct an in camera review. See Pl.’s Opp’n at 5–6, 25–27. The Court previously ordered the Department to file a Vaughn index to clear up an earlier “imprecision” related to the redactions, see Minute Order of April 14, 2021, and the Department did so, see Dkt. 20. That index “provide[s] specific information sufficient to place the [redactions] within the exemption

12 Goldberg’s non-government email address. See Vaughn Index, Dkt. 20-1; Minami Decl. ¶¶ 20,

22, 25. The Foundation objects to the latter two, though it is unclear why given that it already

knows both. Regardless, the redactions of Dixon’s cell phone number and Goldberg’s non-

government email address were appropriate.

As a starting point, private individuals “have a clear privacy interest in avoiding the

disclosure of their personal email addresses.” Gov’t Accountability Project v. U.S. Dep’t of State,

699 F. Supp. 2d 97, 106 (D.D.C. 2010). Department officials do not lose that privacy interest in

their personal contact information just by virtue of being public employees. See Cause of Action

Inst. v. Exp.-Imp. Bank of U.S., 521 F. Supp. 3d 64, 93 (D.D.C. 2021); Wade v. IRS, 771 F. Supp.

2d 20 (D.D.C. 2011). Because the asserted privacy interest is more than de minimis, the Court

must balance it against the public interest in disclosure. Judicial Watch, 449 F.3d at 153.

The “only relevant public interest” is whether the information would “‘she[d] light on an

agency’s performance of its statutory duties’ or otherwise let citizens know ‘what their government

is up to.’” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (quoting DOD v. FLRA, 510 U.S.

487, 497 (1994). It does not include personal contact information that “reveals little or nothing

about an agency’s own conduct,” DOJ v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 773

(1989). As a result, the balancing test allows the Department to redact employees’ personal contact

information. See Nova Oculus Partners, LLC v. SEC, 486 F. Supp. 3d 280, 290 (D.D.C. 2020);

Davidson v. Dep’t of State, 206 F. Supp. 3d 178, 200 (D.D.C. 2016).

The same is true for Dixon’s cell phone number. Dixon did not forfeit her general privacy

interest in her cell phone number by including it in her email signature line in select

category,” is “not contradicted in the record,” and lacks indications of “agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009). Thus, the Court declines to conduct an in camera review of the documents.

13 communications. See Agency Ex. E, Dkt. 16-2 (example of Dixon omitting her cell phone number

from email signature). Nor is Dixon’s cell phone number comparable to an office landline number,

which has been subject to FOIA disclosure in other cases. Cf. Pl.’s Opp’n at 24 (citing cases). As

the Department explained, a cell phone “is carried on one’s person whether he or she is physically

in office, at home, or on personal time.” Minami Decl. ¶ 21. “Many people simply do not want

to be disturbed at home by work-related matters,” and individuals have an interest “in preventing

at least some unsolicited, unwanted [calls] from reaching them at their homes.” FLRA, 510 U.S.

at 510; see also Smith v. Dep’t of Treas., No. 17-cv-1796, 2020 WL 376641, at *4 (D.D.C. Jan.

23, 2020). The Foundation does not even attempt to articulate a public interest served by disclosing

Dixon’s phone number. And “something, even a modest privacy interest, outweighs nothing every

time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).

Though the balancing is slightly different as to Goldberg’s personal email address, it too

was appropriately redacted. Goldberg still has a privacy interest in her contact information, but it

is somewhat diminished because her school email address was posted publicly. See Bader Decl.

Ex. 4. That posting “does not mean that [she] has no interest in limiting the disclosure or

dissemination of that information.” Reps. Comm., 489 U.S. at 770. “[W]hile public access may

reduce the privacy interest, it does not eliminate it.” PETA v. Dep’t of Health & Hum. Servs., 464

F. Supp. 3d 385, 394 (D.D.C. 2020). The Foundation articulates at least a plausible, if slight,

public interest in knowing the extent to which employees are using personal email addresses for

official business. But here, that interest appears to be one belonging primarily to the Foundation—

who wants to know for the sake of this FOIA request, see supra Part III.A.2—rather than to the

public. Because the value to the general public is quite minimal, even a “very slight privacy

interest” “suffice[s] to outweigh” it. See FLRA, 510 U.S. at 500.

14 Finally, the privacy interests of the private individual who was invited, but declined, to

participate in a Department panel outweighs the public interest in disclosure. That individual has

at least a moderate privacy interest in disclosure of their name because he or she did not voluntarily

engage with the government—and rather affirmatively chose not to do so. Cf. Pinson v. DOJ, 160

F. Supp. 3d 285, 300–01 (D.D.C. 2016) (emphasizing voluntariness when ordering disclosure of

private party’s name). “Whatever the reason” the individual “chose[] not to” participate, “it is

clear that they have some nontrivial privacy interest in nondisclosure.” FLRA, 510 U.S. at 500.

On the other side of the scale, the public interest is also minor. Knowing the name of an individual

who did not participate in a Department event has at most an attenuated link to the public’s interest

in “identifying the actors who are able to exert influence on” agency policies, Lardner v. DOJ, No.

03-0180, 2005 WL 758267, at *18–19 (D.D.C. Mar. 31, 2005). Balancing these two interests on

the head of a pin, the privacy interest ekes out. The Foundation has not carried its “obligation to

articulate a public interest sufficient to outweigh” the nontrivial privacy interest. Salas v. Off. of

Inspector Gen., 577 F. Supp. 2d 105, 112 (D.D.C. 2008). Accordingly, the Department’s motion

for summary judgment as to the redactions will be granted, and the Foundation’s motion will be

denied.

15 CONCLUSION

For the foregoing reasons, the Foundation’s motion for summary judgment is granted in

part and denied in part, and the Department’s motion for summary judgment is granted in part and

denied in part. A separate order consistent with this decision accompanies this memorandum

opinion.

________________________ DABNEY L. FRIEDRICH September 20, 2022 United States District Judge