Judicial Watch, Inc. v. Board of Governors of the Federal Reserve System

• Court: District Court, District of Columbia
• Decided: March 29, 2011
• Docket: Civil Action No. 2009-2138
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2138 (RWR) ) BOARD OF GOVERNORS OF THE ) FEDERAL RESERVE SYSTEM, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Judicial Watch, Inc. brings this action against

the Board of Governors of the Federal Reserve System (“the

Board”), alleging a violation of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, arising out of Judicial Watch’s request

for the visitor logs from the offices of Ben Bernanke, the

Chairman of the Board, and Kevin Warsh, a member of the Board.

The Board has moved for summary judgment. Because material facts

are not in dispute and the record shows unequivocally that the

Board fulfilled its obligations under the FOIA, its motion for

summary judgment will be granted.

BACKGROUND

The Board’s security office maintains a log of visitors who

come to the Board’s buildings to see Board governors and staff.

(Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J.

(“Def.’s Mem.”), Thro Decl. ¶ 7.) Judicial Watch submitted a - 2 -

FOIA request seeking “any and all visitor logs for meetings” with

Bernanke and Warsh from August 2007 to the date of the request,

September 2, 2009. (Def.’s Stmt. of Material Facts Not In

Genuine Dispute ¶ 1.1) Each log contained a column for the

visitor’s last name, first name, and organization, the Board

employee visited, and the date. (Id. ¶ 6.) In response to the

FOIA request, the Board produced to Judicial Watch the logs but

redacted the names, and, in two instances, the organizations for

entries identified as personal visits. (Id. ¶¶ 6, 8.) Judicial

Watch brought this action complaining that the Board improperly

redacted the personal entries. The Board has moved for summary

judgment,2 arguing that its redactions were proper under

Exemption 6 of the FOIA because disclosing the names of the

personal visitors would have constituted an unwarranted invasion

of personal privacy.

DISCUSSION

Summary judgment may be granted when the materials in the

record show “that there is no genuine dispute as to any material

1 All facts cited from the Board’s Statement of Material Facts are not disputed by Judicial Watch. 2 Judicial Watch states in its opposition to the Board’s motion for summary judgment that it “hereby moves for summary judgment” on its FOIA claim. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 1.) However, the April 6, 2010 Scheduling Order set a dispositive motions deadline of April 29, 2010. Because Judicial Watch did not submit its filing until after the dispositive motions deadline, the filing will be treated only as an opposition to the Board’s motion for summary judgment. - 3 -

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009). A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to

summary judgment if it demonstrates that no material facts are in

dispute and that all information that falls within the class

requested either has been produced, is unidentifiable, or is

exempt from disclosure. Students Against Genocide v. Dep’t of

State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisburg v. U.S. Dep’t

of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court

must conduct a de novo review of the record in a FOIA case, and

the agency resisting disclosure bears the burden of persuasion in

defending its action. 5 U.S.C. § 552(a)(4)(B); see also Akin,

Gump, Strauss, Hauer & Feld, LLP v. U.S. Dep’t of Justice, 503 F.

Supp. 2d 373, 378 (D.D.C. 2007).

I. ADEQUACY OF SEARCH

FOIA requires that government agencies make good faith

efforts to conduct reasonable searches for all records that are

responsive to FOIA requests. Baker & Hostetler LLP v. U.S. Dep’t

of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). An agency is

entitled to use detailed non-conclusory affidavits or

declarations that are submitted in good faith to show that the - 4 -

search it conducted in response to a FOIA request is adequate.

Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551-52 (D.C.

Cir. 1994) (stating that the affidavits or declarations must

describe “what records were searched, by whom, and through what

process”). Judicial Watch requested “any and all visitor logs

for meetings” with Bernanke and Warsh from August 2007 to the

date of the request, September 2, 2009. (Def.’s Mem., Thro Decl.

¶ 3.) In response to the request, the Board searched for “the

logs for visitors to Chairman Bernanke and Governor Warsh for the

period August 1, 2007 through September 9, 2009.” (Id. ¶ 7.)

The affidavit demonstrates that the search was reasonably likely

to produce results responsive to Judicial Watch’s request.

Judicial Watch has not rebutted this affidavit on this issue, nor

has it otherwise challenged the search’s adequacy. Thus, the

Board’s search was adequate.

II. WITHHOLDINGS

The FOIA requires agencies to comply with requests to make

their records available to the public, unless information is

exempted by clear statutory language. 5 U.S.C. §§ 552(a), (b);

Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.

1996). Although there is a “strong presumption in favor of

disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173

(1991), there are nine exemptions to disclosure set forth in 5

U.S.C. § 552(b). These exemptions are to be construed as - 5 -

narrowly as possible to maximize access to agency information,

which is one of the overall purposes of the FOIA. Vaughn v.

Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973).

Because the party requesting disclosure cannot know the

precise contents of the documents withheld, it is at a

disadvantage to claim misapplication of an exemption, and a

factual dispute may arise regarding whether the documents

actually fit within the cited exemptions. Id. at 823-24. To

provide an effective opportunity for the requesting party to

challenge the applicability of an exemption and for the court to

assess the exemption’s validity, the agency must explain the

specific reason for nondisclosure. Id. at 826; see also Oglesby,

79 F.3d at 1176 (“The description and explanation the agency

offers should reveal as much detail as possible as to the nature

of the document, without actually disclosing information that

deserves protection.”). Conclusory statements and generalized

claims of exemption are insufficient to justify withholding.

Vaughn, 484 F.2d at 826; see also Mead Data Cent., Inc. v. U.S.

Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (noting

that “the burden which the FOIA specifically places on the

Government to show that the information withheld is exempt from

disclosure cannot be satisfied by the sweeping and conclusory

citation of an exemption” (footnote omitted)). However, the

“materials provided by the agency may take any form so long as - 6 -

they give the reviewing court a reasonable basis to evaluate the

claim of privilege.” Delaney, Migdail & Young, Chartered v. IRS,

826 F.2d 124, 128 (D.C. Cir. 1987) (referring to an index

describing withheld material and the justification for

withholding as a “Vaughn Index”). If the agency affidavits and

Vaughn index “‘contain reasonable specificity of detail rather

than mere conclusory statements,’” then a plaintiff must point

either to contradictory evidence in the record or provide

independent evidence of agency bad faith to demonstrate that the

agency improperly invoked an exemption. Williams v. FBI, 69 F.3d

1155, 1159 (D.C. Cir. 1995) (quoting Gallant v. NLRB, 26 F.3d

168, 171 (D.C. Cir. 1994)).

Exemption 6 of the FOIA provides that an agency may withhold

“personnel . . . and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy[.]”

5 U.S.C. § 552(b)(6). The threshold inquiry is whether the

requested information is contained in a type of file covered by

the exemption. Wash. Post Co. v. U.S. Dep’t of Health and Human

Servs., 690 F.2d 252, 260 (D.C. Cir. 1982). Congress intended

the term “similar files” to be construed broadly, U.S. Dep’t of

State v. Wash. Post. Co., 456 U.S. 595, 602 (1982), and the D.C.

Circuit has held that “[a]ll information which applies to a

particular individual is covered by Exemption 6, regardless of

the type of file in which it is contained.” Wash. Post Co. v. - 7 -

U.S. Dep’t of Health and Human Servs., 690 F.2d at 260 (internal

quotation marks omitted). Judicial Watch does not dispute that

the visitor logs are “similar files” that may be subject to

Exemption 6. (Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s

Opp’n”) at 6.) See also Kalwasinski v. Fed. Bureau of Prisons,

No. 08 Civ. 9593 (PAC) (MHD), 2010 WL 2541363, at *8 (S.D.N.Y.

2010) (Report and Recommendation) (concluding that prison visitor

logs are “similar files” under Exemption 6).

Once the threshold inquiry is satisfied, a court must

determine whether disclosure would constitute a clearly

unwarranted invasion of privacy. Wash. Post Co. v. U.S. Dep’t of

Health and Human Servs., 690 F.2d at 260. To make this

determination, a court balances the public interest in disclosure

against the individual privacy interests in the information

contained in the files. Id. The requestor bears the burden of

articulating a significant public interest, Schwaner v. Dep’t of

Army, 696 F. Supp. 2d 77, 82 (D.D.C. 2010), and of showing that

disclosure would advance that interest. ACLU v. Dep’t of

Justice, 698 F. Supp. 2d 163, 165 (D.D.C. 2010). “The only

public interest to be considered under the FOIA is the extent to

which disclosure ‘advances the citizens’ right to be informed

about what their government up to.’” Hertzberg v. Veneman, 273

F. Supp. 2d 67, 87 (D.D.C. 2003) (quoting Nat’l Ass’n of Home

Builders v. Norton, 309 F.3d 26, 34 (D.C. Cir. 2002)). - 8 -

Conversely, there is no public interest in disclosure of

information about private citizens that reveals “‘little or

nothing about an agency’s own conduct.’” Reed v. NLRB, 927 F.2d

1249, 1251 (D.C. Cir. 1991) (quoting U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).

On the other side of the balance, an individual has a privacy

interest in the presence of his name on a list if “many parties

in addition to the party making the initial FOIA request would be

interested in obtaining” the name. Nat’l Ass’n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989); see also

Blazy v. Tenet, 979 F. Supp. 10, 24 (D.D.C. 1997) (finding that

individuals have a privacy interest in “protecting the fact that

their names appear” in CIA Employee Review Panel files).

Judicial Watch argues that the public has an interest “in

full disclosure about the activities of powerful government

officials during one of the greatest economic disasters in United

States history[,]” and that, with the exception of visitors

identified as family members, the private visitors “could have

been anyone, meeting high level government officials for what, at

the moment, are completely unknown purposes.” (Pl.’s Opp’n at

7.) However, the Board staff charged with responding to Judicial

Watch’s FOIA request confirmed with the offices of Bernanke and

Warsh that for all but one visitor whose log entry under

“Organization” suggested a personal visit, “the visit was in fact - 9 -

of a personal nature and was in no way business related.”3

(Def.’s Mem., Thro Decl. ¶ 8.) Judicial Watch has not pointed to

any evidence in the record suggesting that these visits were not

of a personal nature, nor has it provided any independent

evidence of bad faith. Mere speculation that the visits may not

have been, in fact, personal is insufficient to rebut the

presumption of good faith accorded to the agency affidavit. See

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991). Because the names of personal visitors reveal nothing

about the Board’s activities or conduct, there is no public

interest in their disclosure. On the other side of the balance,

the visitors have at least some privacy interest in protecting

their names from disclosure, as it is quite conceivable that

parties other than Judicial Watch might be interested in

obtaining the names of individuals personally affiliated with

high-ranking members of the Board. See Nat’l Ass’n of Retired

Fed. Employees, 879 F.2d at 876. Because this privacy interest

is more than de minimis, the Board’s withholding under Exemption

6 was proper. See Schwaner, 696 F. Supp. 2d at 83 (noting that

“‘even a modest privacy interest outweighs nothing every time’”

3 The Board staff review determined that one visitor designated as personal actually visited for nonpersonal reasons, and the Board did not withhold information about that visitor. (Def.’s Mem., Thro Decl. ¶ 8.) - 10 -

(quoting Schoenman v. FBI, 575 F. Supp. 2d 136, 161 (D.D.C.

2008)).

III. SEGREGABILITY

An agency must disclose “[a]ny reasonably segregable

portion” of an otherwise exempt record. 5 U.S.C. § 552(b). An

agency cannot withhold non-exempt portions of a document unless

they “are inextricably intertwined with exempt portions.” Mead

Data, 566 F.2d at 260. While an agency is presumed to have

complied with its obligation to disclose non-exempt portions of

the record, a “district court must make specific findings of

segregability regarding the documents to be withheld.” Sussman

v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). To

demonstrate that the withholding agency has disclosed all

reasonably segregable material, “the withholding agency must

supply ‘a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant

and correlating those claims with the particular part of a

withheld document to which they apply.’” King v. U.S. Dep’t of

Justice, 830 F.2d 210, 224 (D.C. Cir. 1987) (quoting Mead Data,

566 F.2d at 251). Presenting a “comprehensive Vaughn index,

describing each document withheld, as well as the exemption under

which it was withheld” supplemented by an affidavit indicating

that an agency official conducted a review of each document and

determined that no document contains segregable information is - 11 -

sufficient to fulfill the agency’s obligation. See Johnson v.

Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002);

see also Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir.

2008) (noting that a court “may rely on government affidavits

that show with reasonable specificity why documents withheld

pursuant to a valid exemption cannot be further segregated”).

The Board’s Vaughn index states that it has withheld only

the first and last names of the personal visitors, and in two

instances, the names of the visitors’ organizations. (Def.’s

Mem., Vaughn Index at 1-2.) The Vaughn Index and the Board’s

supplementing declaration both explain that the information in

the organization column for these two visitors “would reveal the

family relationship, and therefore the identity, of the visitor.”

(Def.’s Mem., Thro Decl. ¶ 11.) Because disclosing this

information would reveal exempt information, it is “inextricably

intertwined” with the withheld names. See Mead Data, 566 F.2d at

260. The Board produced to Judicial Watch all other portions of

the visitors logs (Def.’s Mem., Thro Decl. ¶¶ 11-12, Vaughn Index

at 1-2), and Judicial Watch does not argue that the Board failed

to produce any reasonably segregable information. Thus, the

Board has complied with its obligation to disclose all reasonably

segregable information. - 12 -

CONCLUSION

No material facts are in dispute, and the Board has

fulfilled its obligations under the FOIA. Accordingly, the

Board’s motion for summary judgment will be granted. A final

Order accompanies this Memorandum Opinion.

SIGNED this 29th day of March, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge