Peter Janangelo v. Tigta

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2018
• Docket: 17-15838
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETER JANANGELO, No. 17-15838

Plaintiff-Appellant, D.C. No. 2:16-cv-00906-JCM-GWF v.

TREASURY INSPECTOR GENERAL MEMORANDUM* FOR TAX ADMINISTRATION, an agency of the United States,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted June 11, 2018** San Francisco, California

Before: SCHROEDER, GOULD, and DIAZ,*** Circuit Judges.

Peter Janangelo appeals the district court’s order granting summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Albert Diaz, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. judgment to the Treasury Inspector General for Tax Administration (“TIGTA”)

and denying Janangelo’s cross-motion for summary judgment. We review the

district court’s order de novo, Animal Legal Def. Fund v. U.S. Food & Drug

Admin., 836 F.3d 987, 988 (9th Cir. 2016) (en banc), and we affirm.

TIGTA did not waive its ability to make a so-called Glomar response, which

neither confirmed nor denied the existence of the report that Janangelo’s Freedom

of Information Act (“FOIA”) request seeks. Our rule is clear that an agency may

not make a Glomar response when the existence of the requested information has

already been “officially acknowledged.” Pickard v. Dep’t of Justice, 653 F.3d 782,

786 (9th Cir. 2011). A fact has been “officially acknowledged” if information that

precisely matches the information requested was previously disclosed. Id.

But here the existence or non-existence of the report Janangelo seeks has not

been “officially acknowledged.” Agent Moller’s email telling Janangelo that he

“will have to file a FOIA request for the information” does not amount to an

affirmative admission that the requested report exists. Nor does attorney Daphne

Levitas’s ambiguous declaration, which contradicts itself by stating that she could

not confirm or deny the report’s existence but also says that she was “familiar with

the document plaintiff seeks.” In context, however, Levitas said that she was

familiar only with the type of document Janangelo seeks. Because these

statements do not precisely match an admission that the requested report exists,

2 TIGTA was entitled to make a Glomar response to Janangelo’s FOIA request.

Further, TIGTA’s Glomar response is fully justified under FOIA Exemption

6. That provision exempts “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). Janangelo does not dispute that the report of

investigation he seeks would qualify as “personnel and medical files and similar

files.” Id. Instead, he contends that disclosure of the report’s existence vel non

would not “constitute a clearly unwarranted invasion of personal privacy.” Id.

Evaluating this issue requires “a balancing of the public interest in disclosure

against the possible invasion of privacy caused by the disclosure.” Hunt v. FBI,

972 F.2d 286, 287 (9th Cir. 1992).

On balance, the requested disclosure would constitute a “clearly

unwarranted” invasion of Janangelo’s former boss’s personal privacy. Because the

alleged public interest is in showing “that responsible officials acted negligently or

otherwise improperly in the performance of their duties,” Janangelo “must

establish more than a bare suspicion in order to obtain disclosure.” Nat’l Archives

& Records Admin. v. Favish, 541 U.S. 157, 174 (2004). “Rather, [Janangelo] must

produce evidence that would warrant a belief by a reasonable person that the

alleged Government impropriety might have occurred.” Id. But Janangelo has

produced no such evidence, and instead we have mere allegations and conjecture.

3 On the other hand, Janangelo’s lewd claims implicate “[s]ignificant privacy

interests,” Hunt, 972 F.2d at 290, because “association of [Janangelo’s former

boss’s] name with allegations of sexual and professional misconduct could cause

[her] great personal and professional embarrassment,” id. at 288. And we “place[]

emphasis on the employee’s position in her employer’s hierarchical structure,”

giving greater weight to the privacy interests of “lower level officials” like

Janangelo’s former boss. Forest Serv. Employees for Envtl. Ethics v. U.S. Forest

Serv., 524 F.3d 1021, 1025 (9th Cir. 2008).

We agree with the district court that Janangelo’s FOIA request falls within

Exemption 6, and so we need not consider whether it is also covered by Exemption

7(C).1

AFFIRMED.

1 Because TIGTA’s Glomar response was proper, the agency was not required to produce a Vaughn index to describe the documents in its possession. See Minier v. CIA, 88 F.3d 796, 804 (9th Cir. 1996).