Sensor Sytems v FAA

2012 DNH 037

• Court: District Court, D. New Hampshire
• Decided: February 9, 2012
• Docket: CV-10-262-PB
• Status: Published

Opinion

Sensor Sytems v FAA CV-10-262-PB 2/9/2012

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sensor Systems Support, Inc.

v. Case N o . 10-cv-262-PB Opinion N o . 2012 DNH 037 Federal Aviation Administration

MEMORANDUM AND ORDER

Sensor Systems Support, Inc. (“Sensor Systems”) filed an

amended complaint on October 3 , 2011, seeking to compel the

Federal Aviation Administration (“FAA”) to produce records in

response to its request under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. The FAA filed a motion to dismiss for

lack of subject matter jurisdiction or in the alternative for

summary judgment. Sensor Systems responded with a combined

filing that is both a cross-motion for summary judgment and an

objection to the FAA’s motion.1 For the reasons provided below,

1 Sensor Systems’ combined filing does not comply with Local Rule 7.1(a)(1). Under that rule, “[o]bjections to pending motions and affirmative motions for relief shall not be combined in one filing.” Nonetheless, I will consider both parts of the filing because the FAA has responded to both. I deny Sensor Systems’ motion and grant in part and deny in part

the FAA’s motion.

I. BACKGROUND

Sensor Systems sent a FOIA request to the FAA on June 2 6 ,

2009. It sought all correspondence from Michael Hawthorne, FAA

Program Manager, from July 1 , 2008 to the time of the request

that pertained to Sensor Systems or Daniel J. Oberlander.

Hawthorne searched his computer files and found a total of 467

pages of responsive documents. On August 1 7 , 2009, the FAA sent

Sensor Systems 171 pages of correspondence and withheld 296

pages based on a determination that the withheld pages were

exempt from disclosure.

On September 1 0 , 2009, Sensor Systems submitted a timely

appeal of the FAA’s initial determination. Between October 2009

and May 2010, Sensor Systems sent four letters to the FAA

Director of Administration informing him that the FAA had failed

to timely respond to its appeal.

On July 6, 2010, in response to the FAA’s continuing

failure to respond to its appeal, Sensor Systems filed this

action. On July 2 0 , the FAA informed Sensor Systems that it was 2 granting the appeal in part and released 261 of the 296 withheld

pages, albeit with redactions on approximately 70 pages. 2 On

October 2 7 , the FAA released all 296 pages of the previously

withheld documents. This final round of production included 67

pages with partial redactions claimed to be exempt from

disclosure.

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

The FAA seeks dismissal of this action on the ground that

the court lacks subject matter jurisdiction because the FAA has

not unlawfully withheld records. In the alternative, the FAA

moves for summary judgment.

Ordinarily, a motion to dismiss for lack of subject matter

jurisdiction is analyzed under Rule 12(b)(1). A court, however,

must treat a motion challenging subject matter jurisdiction as a

motion for summary judgment “where jurisdictional issues cannot

be separated from the merits of the case.” Gonzales v . United

States, 284 F.3d 2 8 1 , 287 (1st Cir. 2002); see Valentin v . Hosp.

2 The FAA represents that the 261 pages that were released actually were all of the withheld pages because 35 pages were duplicates. 3 Bella Vista, 254 F.3d 3 5 8 , 363 & n.3 (1st Cir. 2001). “A

jurisdictional issue is intertwined with the merits where the

court’s subject matter jurisdiction depends upon the statute

that governs the substantive claims in the case.” Gonzales, 284

F.3d at 287.

To invoke subject matter jurisdiction under the FOIA, the

plaintiff must allege that the agency “(1) ‘improperly’ (2)

‘withheld’ (3) ‘agency records.’” Kissinger v . Reporters Comm.

for Freedom of the Press, 445 U.S. 136, 150 (1980); see 5 U.S.C.

§ 552(a)(4)(B). If the elements of jurisdiction are properly

alleged, the burden shifts to the agency to show that the

records sought by the plaintiff are not agency records or were

not improperly withheld. U.S. Dep’t of Justice v . Tax Analysts,

492 U.S. 136, 142 n.3 (1989). “[B]ecause FOIA serves as the

source of both this court’s subject matter jurisdiction and the

plaintiff[’s] cause of action, the jurisdictional inquiry is

intertwined with the merits of [its] claim.” Wilkinson v . Chao,

292 F. Supp. 2d 2 8 8 , 291 (D.N.H. 2003); see United States ex

rel. Fine v . MK–Ferguson Co., 99 F.3d 1538, 1543 (10th Cir.

1996). Accordingly, I must analyze the FAA’s motion under Rule

56. 4 Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .

Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co., 95 F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at

323.

B. The FOIA Standard

The FOIA requires government agencies to make their records

available to the public upon request, unless at least one of

several enumerated exemptions applies. 5 U.S.C. §§

552(a)(3),(b). An agency seeking to withhold materials 5 requested under the FOIA has the burden of proving that those

materials are exempt from disclosure. Orion Research Inc. v .

EPA, 615 F.2d 5 5 1 , 553 (1st Cir. 1980) (citing 5 U.S.C. §

552(a)(4)(B)). The court conducts a de novo review as to the

validity of the asserted exemptions. Church of Scientology

Int’l v . U.S. Dep’t of Justice, 30 F.3d 2 2 4 , 228 (1st Cir.

1994). Although the FOIA authorizes courts to conduct in camera

review of challenged documents, “[t]he legislative history

indicates that, before in camera inspection is ordered, an

agency should be given the opportunity to demonstrate by

affidavit or testimony that the documents are clearly exempt

from disclosure, and that the court is expected to accord

‘substantial weight’ to the agency’s affidavit.” Bell v . United

States, 563 F.2d 4 8 4 , 487 (1st Cir. 1977); see Hayden v . NSA,

608 F.2d 1381, 1387 (D.C. Cir. 1979) (“When the agency meets its

burden by means of affidavits, [i]n camera review is neither

necessary nor appropriate.”).

To satisfy its burden under the FOIA without submitting

undisclosed records for in camera inspection, “the agency must

furnish a detailed description of the contents of the withheld

material and of the reasons for nondisclosure, correlating 6 specific FOIA exemptions with relevant portions of the withheld

material.” Orion Research, 615 F.2d at 553; see Church of

Scientology, 30 F.3d at 231 (“[The 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.” (internal quotation marks and emphasis

omitted)). The agency’s justification for the withholding must

be sufficient to give “‘the FOIA requester a meaningful

opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding.’”

Church of Scientology, 30 F.3d at 231 (quoting Wiener v . F B I ,

943 F.2d 9 7 2 , 977-78 (9th Cir. 1991)). If the agency’s

justification for the withholding is sufficient, the court

“‘need not go further to test the expertise of the agency, or to

question its veracity when nothing appears to raise the issue of

good faith.’” Bell, 563 F.2d at 487 (quoting Weissman v . CIA,

565 F.2d 6 9 2 , 697 (D.C. Cir. 1977)).

7 III. ANALYSIS

The FAA moves for summary judgment on the ground that the

redacted parts of the requested documents are exempt from

disclosure under the FOIA. It relies on an affidavit from

Hawthorne and what is commonly referred to as a Vaughn index.3

The index provides a brief description of each redacted document

and identifies the exemptions claimed to justify nondisclosure.

Sensor Systems objects to the FAA’s motion, arguing that the

FAA’s affidavit and Vaughn index are too vague and conclusory to

allow the court to meaningfully evaluate the claimed exemptions.

Consequently, Sensor Systems contends, the court should order

the agency to produce the records for in camera review.4

3 The term “Vaughn index” refers to Vaughn v . Rosen, 484 F.2d 820 (D.C. Cir. 1973). It is an index prepared by an agency that provides “a general description of each document sought by the FOIA requester and explains the agency’s justification for nondisclosure of each individual document or portion of a document.” Church of Scientology, 30 F.3d at 228. 4 In the same filing, Sensor Systems seeks summary judgment on the ground that the FAA failed to timely respond to its FOIA appeal. As I thoroughly explained in my September 1 6 , 2011 Memorandum and Order, the FOIA does not authorize a court to review an agency’s failure to act on an appeal. Doc. N o . 1 8 . To the extent Sensor Systems is again arguing that the FAA’s delay in responding to the FOIA appeal entitles it to judgment as a matter of law, it does so without offering any new 8 The FAA defends its redactions by invoking three of the

FOIA’s enumerated exceptions. First, it relies on Exception 5

in claiming that certain redactions are authorized either

because the redacted information is protected by the

deliberative process privilege or the attorney-client privilege.

Second, it argues that other redactions are authorized by

Exception 6 because the redacted information qualifies as exempt

personal information. Finally, it argues that its remaining

redactions are authorized by Exemption 7(C) because the redacted

information was compiled for law enforcement purposes and its

disclosure would result in an unauthorized invasion of personal

privacy. I consider each of the FAA’s arguments in turn.

A. Exemption 5

The FOIA exempts from disclosure “inter-agency or intra-

agency memorandums or letters which would not be available by

law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). This provision, commonly

referred to as “exemption 5,” is designed to protect the

agency’s decision-making processes. See NLRB v . Sears, Roebuck

arguments warranting reconsideration of my prior ruling. Therefore, I deny its motion for summary judgment. 9 & Co., 421 U.S. 1 3 2 , 149–150 (1975). The exemption applies to

documents that are privileged in the civil discovery context,

including those protected by the attorney-client, attorney work

product, and deliberative process privileges. Id.; Providence

Journal C o . v . U.S. Dep’t of Army, 981 F.2d 5 5 2 , 557 (1st Cir.

1992). The FAA asserts both the deliberative process privilege

and the attorney-client privilege.

1. Deliberative Process Privilege

The FAA claims the deliberative process privilege with

respect to 50 of the 67 redacted pages. The purpose of the

privilege is to “encourage[] frank and open discussions of

ideas, and, hence, improve[] the decisionmaking process.” Nat’l

Wildlife Fed’n v . U.S. Forest Serv., 861 F.2d 1114, 1117 (9th

Cir. 1988). The privilege performs this safeguarding function

in at least three ways:

[I]t serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action. 10 Providence Journal, 981 F.2d at 557 (quoting Coastal States Gas

Corp. v . Dep’t of Energy, 617 F.2d 8 5 4 , 866 (D.C. Cir. 1980)).

“The exemption thus covers recommendations, draft documents,

proposals, suggestions, and other subjective documents which

reflect the personal opinions of the writer rather than the

policy of the agency.” Coastal States, 617 F.2d at 866.

The First Circuit has held that a document must be both

“predecisional” and “deliberative” to qualify for the

deliberative process privilege. Providence Journal, 981 F.2d at

557. A document is “predecisional” if the agency can (1)

“pinpoint the specific agency decision to which the document

correlates;” (2) “establish that its author prepared the

document for the purpose of assisting the agency official

charged with making the agency decision;” and (3) “verify that

the document precedes, in temporal sequence, the decision to

which it relates.” Id. (internal quotation marks and citations

omitted). A document is “deliberative” if i t : (1) “formed an

essential link in a specified consultative process;” (2)

“reflects the personal opinions of the writer rather than the

policy of the agency;” and (3) “if released, would inaccurately

11 reflect or prematurely disclose the views of the agency.” Id.

at 559 (internal quotation marks and alterations omitted).

The FAA asserts the deliberative process privilege for two

categories of redacted documents: draft responses to a

congressional inquiry from Senator Judd Gregg and intra-agency

email exchanges regarding the FAA’s Bermuda project.

a. Draft Responses to the Congressional Inquiry

The FAA asserts the deliberative process privilege with

respect to 21 redacted documents involving drafts of its

response to the congressional inquiry from Senator Gregg

regarding Sensor Systems’ work in Bermuda.5 The FAA withheld

portions of its drafts that did not appear in the final agency

response to the inquiry. Hawthorne Aff. ¶ 1 6 , Doc. N o . 21-2.

Other redactions involve email messages that contain proposed

revisions to the draft responses or that reveal FAA employees’

thoughts and deliberations regarding how to address allegations

raised in the inquiry. Id.

The FAA’s draft responses to the congressional inquiry and

discussions regarding those responses are predecisional, as they

5 Vaughn Doc. Nos. 1 8 , 20-21, 2 5 , 2 7 , 29-30, 3 7 , 4 1 , 4 3 , 1 3 0 , 134-5, 136, 140-1, 1 4 2 , 1 4 4 , 145, 275-6. See Doc. N o . 21-3. 12 predated the agency’s final response and were prepared to assist

the agency official charged with responding to the inquiry. See

Providence Journal, 981 F.2d at 557; Hawthorne Aff. ¶ 1 6 . The

disputed issue is whether the draft responses and agency

employees’ comments on those drafts are deliberative.

Courts that have considered FOIA requests for agencies’

draft responses to congressional inquiries have held that such

documents are deliberative. See, e.g., Sussman v . U.S. Dep’t of

Justice, N o . 03 Civ. 3618(DRH)(ETB), 2008 WL 2946006, at *2-4

(E.D.N.Y. July 2 9 , 2008); Sierra Club v . U.S. Dep’t of Interior,

384 F. Supp. 2d 1 , 19-20 (D.D.C. 2004); Mittleman v . King, N o .

Civ.A. 93–1869 SSH, 1997 WL 911801, at *8 (D.D.C. Nov. 4 , 1997);

Judicial Watch, Inc. v . Clinton, 880 F. Supp. 1 , 13 (D.D.C.

1995). Draft documents in general are deemed deliberative

“because comparing them to final documents can disclose

editorial judgments that reflect the agency decisionmaking

process.” Am. Fed’n of Gov’t Emps. v . U.S. Dep’t of Health &

Human Servs., 63 F. Supp. 2d 1 0 4 , 108 (D. Mass. 1999); see Mobil

Oil Corp. v . EPA, 879 F.2d 6 9 8 , 703 (9th Cir. 1989); Nat’l

Wildlife, 861 F.2d at 1121-22; Dudman Comms. Corp. v . Dep’t of

the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987); Russell v . 13 Dep’t of the Air Force, 682 F.2d 1045, 1048-49 (D.C. Cir. 1982).

Similarly, opinions and recommendations of agency employees

regarding issues addressed in draft documents “are themselves

the essence of the deliberative process” because they represent

“the mental processes of the agency in considering alternative

courses of action prior to settling on a final plan.” Nat’l

Wildlife, 861 F.2d at 1121-22. Release of those materials would

discourage candid discussion within the agency regarding issues

that factor into the decision-making calculus. Id.; see United

States v . Nixon, 418 U.S. 683, 705 (1974).

Both the FAA’s draft responses to the congressional inquiry

and the agency employees’ comments on those drafts meet the

First Circuit’s “deliberative document” test. See Prudential

Journal, 981 F.2d at 559-560. First, they “formed an essential

link in a specified consultative process” because the documents

were prepared to facilitate the agency’s final response to the

inquiry and were not “merely cumulative or peripheral.” See

id.; Hawthorne Aff. ¶ 1 6 . Second, the documents reflect

opinions of individual employees as opposed to the official

position of the agency, which is contained in the final version

of the response. See Prudential Journal, 981 F.2d at 559-560. 14 Lastly, release of the redacted information would inaccurately

reflect the views of the agency, as it includes advice,

recommendations, and conclusions not incorporated into the

agency’s final response. See id. Therefore, the FAA properly

withheld portions of the draft responses as material protected

under the deliberative process privilege.

Sensor Systems’ argument that the deliberative process

privilege does not attach to the draft responses because

responding to a congressional inquiry involves neither the

agency’s decisional nor its policymaking function is

unpersuasive. The First Circuit has clarified that the

deliberative process privilege is not limited to consultations

over official agency policy. See Prudential Journal, 981 F.2d

at 559-560. “Rather, the appropriate judicial inquiry is

whether the agency document was prepared to facilitate and

inform a final decision or deliberative function entrusted to

the agency.” Id. at 560. Here, the congressional inquiry was

directed at the FAA. The FAA had to respond to allegations

Sensor Systems’ raised against the agency in the inquiry.

Therefore, the agency’s response to that inquiry plainly

involved a deliberative function entrusted to the agency. The 15 fact that the response is not a formal act of agency

policymaking is irrelevant.

Because the FAA’s Vaughn index and Hawthorne’s affidavit

are sufficiently detailed to enable me to determine that the

redacted portions of the draft responses to the congressional

inquiry and the related email exchanges are entitled to

nondisclosure under Exemption 5 , I need not conduct in camera

review. See Church of Scientology, 30 F.3d at 231; Bell, 563

F.2d at 487. The FAA is entitled to summary judgment with

respect to those 21 documents.

b. Email Exchanges Regarding the Bermuda Project

The FAA also asserts the deliberative process privilege

with respect to redactions in 29 email exchanges6 regarding

implementation of the agency’s December 2007 agreement with the

Government of Bermuda. The agreement was concluded to support

an upgrade to the radar system at the Wade International Airport

in Bermuda. The FAA agreed to loan its equipment for the

project. The Government of Bermuda contracted with Sensor

Systems to manage the acquisition and installation of the loaned

6 Vaughn Doc. Nos. 9, 1 0 , 2 3 , 6 5 , 7 1 , 7 2 , 76-77, 8 1 , 9 9 , 100-101, 103, 104-5, 1 0 7 , 107-109, 1 1 2 , 1 2 0 , 1 2 1 , 1 4 8 , 150-7, 1 5 7 , 179, 184, 203, 2 6 7 , 269, 2 7 2 , 277. See Doc. N o . 21-3. 16 FAA equipment. Redactions in the intra-agency email exchanges

regarding the Bermuda project contain “employees’ opinions and

recommendations concerning the installation [of the loaned FAA

equipment], technical difficulties in that installation, and

government-to-government policy.” Hawthorne Aff. ¶ 1 5 .

Sensor Systems argues that all of the documents in this

category are outside the scope of the deliberative process

privilege because they post-date the agency’s December 2007

agreement with the Government of Bermuda. As such, Sensor

Systems contends, the documents cannot qualify as predecisional,

as they are “merely reflective of those policies and decisions

already enunciated” in the agreement. Doc. N o . 24-1 at 14-15.

In response, the FAA maintains that signing the agreement did

not signal the final agency decision that would ever be made

regarding the Bermuda project; rather, it “was merely the first

step in the relationship between all of the relevant parties.”

Doc. N o . 28 at 5 .

I agree with the FAA that the emails should not necessarily

be deemed to be post decisional merely because they were

prepared after the FAA’s agreement with the government of

Bermuda. The agency clearly had to make subsequent decisions 17 regarding implementation of the agreement and Sensor Systems has

failed to explain why emails that predate such decisions cannot

be considered predecisional under any circumstances.

The FAA, however, cannot meet its burden of establishing

that the email exchanges at issue are predecisional simply by

stating that they involved the continuing process of agency

decision-making regarding the Bermuda project. If the FAA’s

conclusory position were sufficient to invoke the privilege, the

exemption would effectively swallow the FOIA’s rule of broad

disclosure. See Church of Scientology, 30 F.3d at 228-29. The

controlling authority that the FAA cites does not hold to the

contrary. See NLRB, 421 U.S. at 151 n.18; Providence Journal,

981 F.2d at 559. Although not all intra-agency deliberations

“ripen into agency decisions,” the FAA must at the very least

identify the decision contemplated in those deliberations. See

NLRB, 421 U.S. at 151 & n.18. Otherwise, the predecisional

prong of the deliberative process privilege test would be

inconsequential. Providence Journal, 981 F.2d at 557.

The following are but a few examples of patently inadequate

descriptions of the redacted email exchanges regarding the

Bermuda project: 18 • Vaughn Doc. N o . 148: “E-mail of 6/8/09 from Michael Hawthorne to Maria DiPasquantonio concerning issues regarding radar installation. Deliberative.” Doc. N o . 21- 3 at 8 .

• Vaughn Doc. N o . 2 3 : “E-mail dated 9/23/09 from Michael Hawthorne to Maria DiPasquantonio concerning Bermuda’s sharing of government-to-government information with [Sensor Systems]. Redacted portion of e-mail that reveals FAA employee’s thoughts on what Bermuda was sharing with [Sensor Systems]. Deliberative.” Id. at 3 .

In neither instance has the FAA provided sufficient information

to enable me to determine whether the email exchange predated

any sort of contemplated agency decision or action regarding the

project. See Providence Journal, 981 F.2d at 557. Nor do those

descriptions explain with sufficient detail the deliberative

nature of the redacted portions of those emails. Id. at 559.

The remaining index entries with respect to documents in this

category suffer from a similar infirmity.

Because neither the Hawthorne affidavit nor the Vaughn

index provides sufficiently detailed information to enable me to

determine whether the deliberative process privilege applies, I

deny the FAA’s motion for summary judgment with respect to email

exchanges regarding the Bermuda project. The FAA must provide a

supplemental Vaughn index and/or supporting affidavits to

satisfy its burden of proving that Exemption 5 permits 19 nondisclosure of those documents. Alternatively, the FAA must

produce the documents for in camera review.

2. Attorney-Client Privilege

The FAA asserts the attorney-client privilege applies to

eight pages of redacted email exchanges between Hawthorne and

FAA legal counsel.7 The agency, however, has neglected to supply

the court with sufficient facts, either in its index or in the

Hawthorne affidavit, to permit a conclusion that the attorney-

client privilege applies.

The attorney-client privilege “protects confidential

communications made by a client to his attorney.” Maine v . U.S.

Dep’t of the Interior, 298 F.3d 6 0 , 70 (1st Cir. 2002). The

First Circuit has explained that

[t]he privilege also protects from disclosure documents provided by an attorney if the party asserting the privilege shows: (1) that he was or sought to be a client of the attorney; (2) that the

7 Vaughn Doc. Nos. 1 8 , 20-21, 6 5 , 7 2 , 1 2 1 , 136, and 277. See Doc. N o . 21-3. The FAA also asserts the deliberative process privilege with respect to all eight pages. Four pages involve draft responses to the congressional inquiry, which I determined to be exempt under the deliberative process privilege (Vaughn Doc. Nos. 1 8 , 20-21, and 1 3 6 ) . The remaining four pages involve email exchanges regarding the Bermuda project, with respect to which the FAA has not met its burden of proving that the deliberative process privilege applies.

20 attorney in connection with the document acted as a lawyer; (3) that the document relates to facts communicated for the purpose of securing a legal opinion, legal services or assistance in legal proceedings; and (4) that the privilege has not been waived.

Id. at 71 (internal quotation marks and alterations omitted).

The agency asserting the privilege must explain in a non-

conclusory fashion “how the documents claimed to be protected

establish that they relate to a confidential client

communication.” Id. The agency cannot “assume[] that the

requirement of client communicated confidentiality is satisfied

merely because the documents are communications between a client

and attorney.” Id.; see Mead Data Cent., Inc. v . U.S. Dep’t of

the Air Force, 566 F.2d 2 4 2 , 253 (D.C. Cir. 1977) (“The

[attorney-client] privilege does not allow the withholding of

documents simply because they are the product of an attorney-

client relationship . . . . It must also be demonstrated that

the information is confidential.”).

Descriptions of the eight pages with respect to which the

FAA claims the privilege give no indication as to the

confidentiality of the information on which they are based.

Vaughn Document Number 65 is representative: “E-mail from

21 Michael Hawthorne dated 3/27/09 to FAA attorney Mark Bury on

government-to-government policy. Redacted portions of e-mail

that reveals policy discussions. Attorney-client privilege,

deliberative.” Doc. N o . 21-3 at 5 . This index entry provides

no explanation justifying exemption based on the attorney-client

privilege, as it “fails to identify any circumstance expressly

or inferentially supporting confidentiality.” Maine, 298 F.3d

at 7 2 . Descriptions of the remaining documents in this category

are similarly insufficient.

I deny the FAA’s motion with respect to documents claimed

to be exempt under the attorney-client privilege. The FAA must

provide a supplemental Vaughn index and/or supporting affidavit

justifying the exemption or produce the documents for in camera

review.

B. Exemption 6

The FAA claims FOIA Exemption 6 with respect to four

documents redacted to exclude the name and other identifying

information of an FAA employee. The employee was investigated

22 by the OIG for possible misconduct in working “on the side” for

Sensor Systems in Bermuda.8 Hawthorne Aff. ¶¶ 6, 1 7 .

Exemption 6 protects from disclosure “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). The exemption “protect[s] individuals from the

injury and embarrassment that can result from the unnecessary

disclosure of personal information.” U.S. Dep’t of State v .

Washington Post Co., 456 U.S. 595, 599 (1982). To determine

whether information is properly withheld under this exemption, I

must balance the relative privacy and public interests. Maynard

v . CIA, 986 F.2d 5 4 7 , 566-67 (1st Cir. 1993). 9

Under some circumstances, individuals retain a strong

privacy interest in their identities, and information

8 Vaughn Doc. Nos. 4 5 , 4 7 , 4 8 , and 5 0 . See Doc. N o . 21-3. The FAA cites Exemption 6 in addition to Exemption 7(C) for four additional documents involving the contact information of an OIG special agent. Because I conclude that his contact information is covered by Exemption 7 ( C ) , I do not address whether it also exempt under Exemption 6. 9 Because both Exemptions 6 and 7(C) require a balancing approach that weighs public and private interests, cases involving Exemption 7(C) inform my analysis. Exemption 7(C) is similar t o , but more protective of privacy, than Exemption 6. See U.S. Dep’t of Justice v . Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989). 23 identifying individuals may be withheld to protect that privacy

interest. Church of Scientology, 30 F.3d at 237-38; see

Providence Journal, 981 F.2d at 568. In particular, “[p]ublic

identification of the targets of law enforcement investigations

can subject those identified to embarrassment and potentially

more serious reputational harm.” Providence Journal, 981 F.2d

at 568 (internal quotation marks and citation omitted).

Although a government employee investigated for performance-

related misconduct “generally possesses a diminished privacy

interest” in comparison to private individuals, “an internal

criminal investigation would not invariably trigger FOIA

disclosure of the identity of the targeted government employee.”

Id. Public identification of such employees “‘could conceivably

subject them to harassment and annoyance in the conduct of their

official duties and in their private lives.’” Id. (quoting New

Eng. Apple Council v . Donovan, 725 F.2d 139, 142 (1st Cir.

1984)). Therefore, the FAA employee whose name and identifying

information the agency redacted from certain documents so as not

to identify him as the target of the OIG investigation has a

privacy interest in the nondisclosure of his identity.

24 To determine whether disclosure of the employee’s identity

would constitute a “clearly unwarranted invasion of personal

privacy,” 5 U.S.C. § 552(b)(6), I must weigh the employee’s

privacy interest against any countervailing public interest in

disclosure. See Maynard, 986 F.2d at 566-67. “[T]he only

cognizable ‘public interest’ for purposes of FOIA is ‘the

citizens’ right to be informed about ‘what their government is

up to.’’” Id. at 566 (quoting U.S. Dep’t of Justice v .

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773

(1989)).

The First Circuit has recognized that “[t]he public has a

significant, enduring interest in remaining informed about

actions taken by public officials in the course of their

official duties.” Donovan, 725 F.2d at 144; see Providence

Journal, 981 F.2d at 568. In a case like this, where the agency

has disclosed the fact that an unnamed employee was accused of

misconduct, “the relevant interest is ‘only in knowing who the

public servant[] [is] that [was] involved in the governmental

wrongdoing.’” Trentadue v . Integrity Comm., 501 F.3d 1215,

1233-34 (10th Cir. 2007) (quoting Stern v . F B I , 737 F.2d 8 4 , 92

(D.C. Cir. 1984)). Therefore, disclosure of the redacted 25 information “would shed little light on the conduct of the

agency; rather, it would simply identify the alleged wrongdoer.”

Id. at 1234.

The rank of the agency official investigated for misconduct

is an important consideration in weighing the public interest in

the disclosure of his or her identity. See Providence Journal,

981 F.2d at 568 (“The higher the rank of the public official

alleged to have engaged in misconduct, the greater the

legitimate public interest in disclosure is likely to b e . ” ) ;

Trentadue, 501 F.3d at 1234 (“The public interest in learning of

a government employee’s misconduct increases as one moves up an

agency’s hierarchical ladder.”). In cases involving low-ranking

officials, courts have generally held that the privacy interest

of that employee outweighs the public interest in the disclosure

of his or her identity. See Trentadue, 501 F.3d at 1234;

Maynard, 986 F.2d at 566-67; Providence Journal, 981 F.2d at

568-69; Stern, 737 F.2d at 92-93.

Here, the FAA properly withheld the identity of the FAA

employee who was investigated for misconduct because the

disclosure would constitute a clearly unwarranted invasion of

the employee’s privacy. Sensor System’s argument that it 26 already knows the identity of the employee “in no way undermines

the privacy interests of [that] individual[] in avoiding

harassment and annoyance that could result should the [agency]

confirm [his or her identity].” Weisberg v . U.S. Dep’t of

Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984); see Thomas v .

U.S. Dep’t of Justice, 531 F. Supp. 2d 1 0 2 , 109 (D.D.C. 2008)

(“Third parties’ privacy interests are not lost because a

requester knows or can determine from a redacted record their

identities.”). The individual was a low-level FAA employee and

the disclosure of his or her identity would shed little light on

the operation of the agency. The FAA i s , therefore, entitled to

summary judgment with respect to the documents redacted to

exclude the name and other identifying information of the

investigated employee.

C. Exemption 7(C)

The last category of withheld material involves four

documents from which the FAA redacted the contact information of

OIG Special Agent Gerard Tucker.10 The contact information

includes his work address, email address, office telephone

Vaughn Doc. Nos. 85-86, 1 8 2 , 282. See Doc. N o . 21-3. 27 number, and cell phone number. The FAA claims Exemption 7(C)

with respect to those redactions.

Exemption 7(C) protects from disclosure information

compiled for law enforcement purposes that “could reasonably be

expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). The exemption “requires

balancing the privacy interests at issue against any public

interest in disclosure.” Church of Scientology, 30 F.3d at 237;

see Reporters Comm., 489 U.S. at 762.

The documents at issue here are communications between

Special Agent Tucker and Hawthorne made in the course of an OIG

investigation. Hawthorne Aff. ¶ 1 3 . As such, they were

compiled for law enforcement purposes. See Donovan, 725 F.2d at

143. The issue is whether disclosure of the redacted parts

would constitute an unwarranted invasion of Special Agent

Tucker’s privacy. I conclude that it would.

Law enforcement personnel have significant privacy

interests in keeping their names or other identifying

information from being generally disclosed. Maynard, 986 F.2d

at 566; Donovan, 725 F.2d at 142. That privacy interest

“‘encompass[es] the individual’s control of information 28 concerning his or her person,’” including address and other

contact information. U.S. Dep’t of Defense v . Fed. Labor

Relations Auth., 510 U.S. 4 8 7 , 500 (1994) (quoting Reporters

Comm., 489 U.S. at 763)). Hence, Special Agent Tucker’s privacy

interest in keeping his contact information undisclosed i s ,

substantial. See id. As the First Circuit has noted,

Even though OIG investigations into white collar criminal activity . . . might not invite the type of animosity and motivation for reprisal activated by FBI searches and arrests pursuant to violent crimes, the individual officer’s interest in retaining the capability to perform his tasks effectively by avoiding untoward annoyance or harassment is no less significant. The potential for this annoyance or harassment need not rise to the level of physical endangerment before the protection of 7(C) may be invoked.

Donovan, 725 F.2d at 143.

“Where the privacy concerns addressed by Exemption 7(C) are

present, the exemption requires the person requesting the

information to establish a sufficient reason for the

disclosure.” Nat’l Archives & Records Admin. v . Favish, 541

U.S. 1 5 7 , 172 (2004). To be sufficient, the reason for the

disclosure must pertain to “‘the citizens’ right to be informed

about ‘what their government is up to.’’” Maynard, 986 F.2d at

566 (quoting Reporters Comm., 489 U.S. at 773)). 29 Here, Sensor Systems has failed to demonstrate how the

disclosure of Special Agent Tucker’s contact information would

reveal “what the government is up to.” See id. It merely

argues that the redacted information is already in the public

forum because the subpoena the OIG issued to Sensor Systems

included the agent’s contact information. That argument is

inapposite. “An individual’s interest in controlling the

dissemination of information regarding personal matters [such

one’s home address] does not dissolve simply because that

information may be available to the public in some form.” Fed.

Labor Relations Auth., 510 U.S. at 500.

Given that Sensor Systems has not established a FOIA-

related public interest in the disclosure, I need not dwell upon

the balance between private and public interests. See id.

(“Because a very slight privacy interest would suffice to

outweigh the [virtually nonexistent] public interest, we need

not be exact in our quantification of the privacy interest.”).

As the First Circuit remarked in a similar case, “something

outweighs nothing every time.” Maynard, 986 F.2d at 566

(internal quotation marks and ellipses omitted). Therefore, the

FAA is entitled to summary judgment with respect to redactions 30 involving Special Agent Tucker’s contact information because it

has met its burden of proving that the information is protected

from disclosure under Exemption 7 ( C ) .

D. Attorneys’ Fees

Sensor Systems requests that it be awarded attorneys’ fees

at this stage in the litigation. The FOIA allows the court, in

its discretion, to award attorneys’ fees to a requesting party

who substantially prevails in a FOIA request. 5 U.S.C. §

552(a)(4)(E). An attorneys’ fee award depends upon a two-step

process: substantial success and the balance of four equitable

factors. See Maynard, 986 F.2d at 568. Although an interim

award of fees may be appropriate in some cases, Sensor Systems

has made an insufficient showing in support of its request.

See, e.g., Allen v . F B I , 716 F. Supp. 6 6 7 , 672 (D.D.C. 1988).

Accordingly, I decline to exercise my discretion to award

attorneys’ fees at this stage.

IV. CONCLUSION

For the aforementioned reasons, I deny Sensor Systems’

motion for summary judgment (Doc. N o . 2 4 ) . I grant the FAA’s

motion for summary judgment (Doc. N o . 21) with respect to the 31 redacted documents involving: (1) draft responses to the

congressional inquiry; (2) name and identifying information of

FAA employee investigated for misconduct; and (3) contact

information for Special Agent Tucker. I deny the FAA’s motion

with respect to the remaining documents. I direct the agency

either to produce a supplemental Vaughn index and/or supporting

affidavit to enable me to determine whether redactions in those

documents are exempt from disclosure, or to submit the documents

for in camera review. The FAA must produce the requested

information and resubmit its motion for summary judgment within

14 days from the date of this Memorandum and Order. Sensor

Systems shall have 14 days from the date of the FAA’s submission

to object to the motion.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 9, 2012

cc: G. Shepard Bingham, Esq. Matthew A . Caffrey, Esq. Michael T . McCormack, Esq.