Long v. Office of Personnel Management

692 F.3d 185, 2012 WL 3831784, 2012 U.S. App. LEXIS 18664
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 5, 2012
Docket10-1600 (L)
StatusPublished
Cited by79 cases

This text of 692 F.3d 185 (Long v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Office of Personnel Management, 692 F.3d 185, 2012 WL 3831784, 2012 U.S. App. LEXIS 18664 (2d Cir. 2012).

Opinion

DENNIS JACOBS, Chief Judge:

In response to plaintiffs’ Freedom of Information Act (“FOIA”) request for all records in the central database of defendant Office of Personnel Management (“OPM”), OPM withheld from disclosure the names and duty-station information of over 800,000 federal employees. In a pair of orders, the United States District Court for the Northern District of New York (Norman A. Mordue, J.) granted in part and denied in part each side’s motion for summary judgment resolving the applicability of FOIA’s personal privacy exemption: Exemption 6, 5 U.S.C. § 552(b)(6). The district court ruled that OPM could withhold all employee names, but that only some of the duty-station information could be withheld. We agree that the names could be withheld, but conclude that OPM was entitled to withhold all of the duty-station information.

BACKGROUND

Plaintiffs Susan Long and David Burn-ham are professors at Syracuse University and co-directors of the Transactional Records Access Clearinghouse (“TRAC”), a data-gathering, research, and distribution organization affiliated with the university. TRAC’s stated purpose is to provide the public and oversight institutions with “comprehensive information about federal staffing, spending, and the enforcement activities of the federal government.” J.A. 188.

Among other data-collection techniques, plaintiffs use FOIA to get records and data from OPM’s Central Personnel Data File (“CPDF”), a database of approximately 100 data elements, or fields, concerning the federal civilian workforce. 1 OPM’s static files have information about federal employees at a particular moment in time; its dynamic files record personnel actions over intervals. Covered agencies submit quarterly data to OPM, which stores it in the CPDF. In addition to each employee’s name, the CPDF’s other fields include salary history, duty station, occupation, work schedule, and veteran status.

*189 For a time, OPM provided plaintiffs with all the data fields contained in the CPDF, including those associated with the civilian workforce of the Department of Defense (“DoD”). 2 Near year-end 2004, plaintiffs requested CPDF records for that year. In February 2005, OPM told plaintiffs it would be applying a newly-implemented data-release policy to their request. The upshot of this new policy is that OPM redacted the names and duty-station information for over 800,000 federal employees, the majority of whom were civilian DoD employees. 3 The duty-station information withheld includes six data elements (organizational component code, duty post, bargaining unit, core-based statistical area, combined statistical area, and locality pay), which together disclose only the city and county where the employee works, but not the street address. For some employees whose duty-station information was redacted, OPM nevertheless indicated whether they worked within the Washington, D.C. metropolitan area.

OPM withheld names and at least some duty-station information for [i] all employees in what it deemed to be five “sensitive” federal agencies: Bureau of Alcohol, Tobacco, and Firearms (“ATF”), Drug Enforcement Agency (“DEA”), DoD, Secret Service, and United States Mint; and [ii] for those employees across all federal agencies who are in twenty-four “sensitive” occupation categories: e.g., police, criminal investigating, nuclear engineering, game law enforcement. 4

The policy change was security-related. According to the affidavit of OPM’s FOIA officer, Gary Lukowski, the events of September 11, 2001 — particularly the attack on the Pentagon — and a subsequent anthrax attack caused OPM to review the vulnerability of the federal workforce to harassment and attack. OPM’s new policy was in part motivated by a similar change in policy undertaken by the DoD in the immediate aftermath of September 11th. 5 OPM also attributes its change in policy to an outcry by a number of individuals and federal agencies in response to a 2004 Washington Post feature that provided online access to the CPDF, which allowed anyone to search for federal employees by name, federal agency, or locality.

To justify withholding the names and duty-station information, OPM invoked Exemption 6 of FOIA, which protects from disclosure “personnel and medical files and similar files the disclosure of which would *190 constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Plaintiffs unsuccessfully grieved some of the decisions through OPM.

This suit seeks disclosure of the information withheld. On cross-motions for summary judgment, the district court ruled that OPM properly redacted the names and duty stations for federal employees in the five sensitive agencies and four of the sensitive occupations: general national resources and biological science; plant protection and quarantine; hearings and appeals; and border patrol. See Long v. Office of Pers. Mgmt (Long I), No. 05 Civ. 1522 (NAM/DEP), 2007 WL 2903924, at *22 (N.D.N.Y. Sept. 30, 2007). After further briefing, the court ruled that OPM also properly withheld the names of federal employees in the remaining occupations, see Long v. Office of Personnel Mgmt (Long II), No. 05 Civ. 1522 (NAM/DEP), 2010 WL 681321, at *15 (N.D.N.Y. Feb. 23, 2010), but that Exemption 6 did not allow withholding of duty-station information for the remaining sensitive occupations, id. at *17. The parties cross-appealed.

DISCUSSION

I

“FOIA was enacted to promote honest and open government,” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999), and “to ensure public access to information created by the government in order to hold the governors accountable to the governed,” Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir.2002) (internal quotation marks omitted). It “strongly favors a policy of disclosure and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act.” Nat’l Council of La Raza v. U.S. Dep’t of Justice, 411 F.3d 350, 355 (2d Cir.2005) (internal citation omitted). FOIA exemptions are construed narrowly, and a court is to resolve all doubts in favor of disclosure. See Grand Cent. P’ship, 166 F.3d at 478. The government bears the burden of establishing that any claimed exemption applies. Nat’l Council of La Razo, 411 F.3d at 356.

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Bluebook (online)
692 F.3d 185, 2012 WL 3831784, 2012 U.S. App. LEXIS 18664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-office-of-personnel-management-ca2-2012.