UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ELLEN ELISABETH SMITH,
Plaintiff, v. Civil Action No. 10-1253 (JEB) DEPARTMENT OF LABOR, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Ellen Smith filed a Freedom of Information Act request seeking Department of
Labor documents related to a mining disaster. Deeming DOL’s response insufficient, she
brought this FOIA suit challenging the Agency’s redaction of certain information. As this
litigation has progressed, Defendants have made three supplemental releases, effectively
narrowing the dispute to just 77 redacted lines on eight pages. Having now reviewed in camera
all of the redactions, the Court finds no improper withholding and will thus grant Defendants’
Motion for Summary Judgment and deny Plaintiff’s Cross-Motion.
I. Background
Plaintiff is the publisher of a newsletter, Mine Safety and Health News, that covers the
mining industry. Pl. Motion, Declaration of Ellen Smith, ¶ 1. In January 2009, she submitted a
FOIA request to the Department of Labor to obtain a “copy of the Martin County Coal
Corporation Accident investigation, given to the Assistant Secretary of Labor for Mine Safety
and Health on or about Dec. 9, 2002 by the Office of the Inspector General.” Id., ¶ 10. This
report was compiled in response to a mining accident that occurred in Martin County, Kentucky,
in October 2000. Id., ¶¶ 3-4.
1 DOL forwarded the request to OIG, which delegated it to FOIA officer Kimberly
Pacheco. Def. Motion, Declaration of Kimberly Pacheco, ¶ 5. Pacheco reviewed agency files
and determined that the Agency had already responded to several identical FOIA requests: one
from Smith in 2003 and two from third parties in 2004. Id., ¶ 6. In response to these previous
requests, DOL had released a two-page cover letter from the Inspector General to the Secretary
of Labor, a two-page executive summary, and the 25-page investigative report that OIG had
prepared in the course of responding to the accident. Id. Pacheco accordingly responded to
Smith’s 2009 request by releasing the previously disclosed 29 pages, with some redactions on
each page. Id., ¶¶ 7-8.
Plaintiff appealed these redactions to the Solicitor’s Office in February 2009. Id., ¶ 9.
Because of backlogged appeals, Plaintiff’s case was reviewed in November 2009. Def. Motion,
Declaration of William W. Thompson II, ¶¶ 6-7. Associate Solicitor for Management and
Administrative Legal Services William W. Thompson II affirmed certain redactions, but released
24 of the 29 pages in fuller form. Id., ¶ 7.
Pacheco then received a subsequent FOIA request from Plaintiff on December 13, 2009.
Pacheco Decl., ¶ 10. Plaintiff requested the table of contents of, and all exhibits appended to, the
accident investigation report. Id. These documents, consisting of 205 pages, were located by an
OIG special agent who worked on the investigation. Id. Pacheco reviewed the documents and
determined that 106 pages required further review by the Mine Safety and Health Administration
(MSHA) because MSHA had generated the information they contained. Id., ¶ 11. On April 15,
2010, OIG released the remaining 99 pages with some redactions and explained that the
additional 106 pages were being reviewed by MSHA. Id., ¶ 12.
2 Plaintiff appealed this response to the Solicitor’s Office in May 2010. Thompson Decl., ¶
8. An additional release was made as a result: 18 redacted pages were released in fuller form.
Id., ¶ 9. The Solicitor’s Office, however, affirmed the redaction of names of OIG special agents,
references to an individual’s career plans external to DOL, personal phone numbers, and
identifying information of people who were subject to internal personnel discussions. Id., ¶ 13.
MSHA subsequently concluded its review of the documents sent to it. Def. Motion,
Declaration of Lanesia Washington, ¶ 6. Portions of exhibits included in MSHA’s Draft Internal
Review Report to OIG were compared to exhibits included in the Final Report. Id. Some
information included in the Draft Report, but not the Final Report, was redacted. Id. MSHA,
though, disclosed all 106 pages, at least in some form. Washington Decl., Exh. C.
Plaintiff next filed suit in this Court on July 23, 2010, challenging Defendants’
redactions. During the course of the litigation, Defendants released more unredacted pages on
three separate occasions. Prior to briefing, Plaintiff had received all 234 pages of the report and
its exhibits, with redactions made to information on just 51 individual pages. During the course
of briefing Cross-Motions for Summary Judgment, the dispute was narrowed even further. At
present, only seven documents covering eight pages and containing 77 redacted lines remain in
dispute. See Pl. Motion at 2. On July 7, 2011, this Court ordered Defendants to produce the
eight disputed pages for in camera review. Defendants produced those documents six days later,
and the Court has since reviewed each redaction along with the Agency’s respective
justification. 1
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
1 The Court has also reviewed Defendants’ Motion, Plaintiff’s Cross-Motion and Opposition, Defendants’ Reply and Opposition, and Plaintiff’s Reply.
3 as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of materials in the
record.” FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at
248. Factual assertions in the moving party’s affidavits or declarations may be accepted as true
unless the opposing party submits his own affidavits, declarations, or documentary evidence to
the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA cases typically and appropriately are decided on motions for summary judgment.
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.
United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). A defendant agency
seeking summary judgment in a FOIA case must demonstrate that no material facts are in
dispute, that it has conducted an adequate search for responsive records, and that each responsive
record that it has located has been produced to the plaintiff or is exempt from disclosure.
Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA
case, the Court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations if they are relatively detailed and “describe the documents and
the justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit
4 Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are
accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims
about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. &
Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Plaintiff argues that the Agency erred in three respects. First, she claims that DOL failed
to include a segregability analysis in its Vaughn index and that the Vaughn index itself is
inadequate. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (requiring agency to
produce an index when agency withholds information in its response to valid FOIA request).
Second, she maintains that Defendants’ redaction of six lines pursuant to Exemption 5 was
improper. Third, Plaintiff contends that Defendants’ redaction of personal and job-performance
information under Exemptions 6 and 7(C) was also improper. See 5 U.S.C. § 552(b) (listing
exemptions). Having reviewed the disputed redactions in camera, the Court finds that Plaintiff’s
arguments are without merit. While the Court does not always follow Defendants’ logic here in
deciding at times to withhold some information while releasing similar information, the Court
nevertheless finds that the exemptions were not improper.
A. DOL’s Vaughn Index and Segregability
Plaintiff first argues that DOL’s submissions fail to specifically identify the reasons why
a particular exemption is relevant; in addition, they do not correlate such reasons with the
particular part of the withheld document so as to permit Plaintiff and the Court to effectively
evaluate the claimed exemptions. This contention, however, is belied by an examination of
DOL’s submissions.
5 A proper Vaughn index provides a specific factual description of each document sought,
including a general description of the document’s contents, and information about the date, time,
and place of the document’s creation. See Missouri Coal. for Env’t Found. v. U.S. Army Corps
of Engineers, 542 F.3d 1204, 1209-10 (8th Cir. 2008). While DOL’s Vaughn index does not
contain such a factual description of each redacted document, requiring it to do so would exalt
form over substance. This is because Plaintiff has all of the documents; none has been withheld
in its entirety. DOL thus need not provide redundant descriptions of documents from which only
small portions are redacted. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir.
2006) (“[W]e focus on the functions of the Vaughn index, not the length of the document
descriptions.”).
In addition, the Agency’s Vaughn index describes the rationale for the exemptions
invoked and provides the locations in the disclosed documents where redactions are made under
those exemptions. In fact, at the actual sites of redaction, the number of the relevant exemption
is provided. Indices such as this one have generally been accepted by courts as long as “[e]ach
deletion [is] correlated specifically and unambiguously to the corresponding exemption . . .
[which] [is] adequately explained by functional categories . . . [so as to] place[] each document
into its historical and investigative perspective.” Keys v. DOJ, 830 F.2d 337, 349-50 (D.C. Cir.
1987).
Plaintiff nevertheless points to several cases in arguing that DOL’s Vaughn index is
inadequate because it fails to contain the requisite segregability analysis. See, e.g., Isley v.
EOUSA, 1999 WL 1021934, at *7 (D.C. Cir. 1999); Nat’l Resource Def. Council v. Dep’t of
Justice, 388 F. Supp. 2d 1086 (C.D. Cal. 2005); Krikorian v. Dep’t of State, 984 F.2d 461, 467
(D.C. Cir. 1993) (remanding for segregability determination for “each of the withheld
6 documents”). But these cases are inapposite in the circumstances present here. This is not a case
where multiple documents have been withheld in full. Instead, we have a single, 234-page
document that was released with disputed redactions on only eight pages, comprising only 77
lines of text. The Agency’s redactions are themselves indicative that DOL conducted a line-by-
line review and segregation of the material. The Vaughn index, therefore, is not inadequate, and
DOL need provide nothing more specific.
B. Exemption 5
Even if the Vaughn index is sufficient, Plaintiff argues that Defendants’ claimed
exemptions are improper. She first targets DOL’s redactions under Exemption 5. This
exemption covers a grand total of six lines of redactions. Exemption 5 generally protects
documents that would be unavailable to an opposing party through discovery in civil litigation.
See U.S. v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); Martin v. Office of Special
Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987) (Exemption 5 “unequivocally” incorporates “all
civil discovery rules”). Disclosure of records is only compelled where such records would
“routinely be disclosed” in litigation. Weber, 465 U.S. at 27. Accordingly, courts do not
consider the requester’s need for the documents. Martin, 819 F.2d at 1184 (“[T]he needs of a
particular plaintiff are not relevant to the exemption’s applicability.”).
DOL justifies its invocation of Exemption 5 under the “Deliberative Process Privilege.”
See Pacheco Decl., ¶ 17. “One of the traditional evidentiary privileges available to the
Government in the civil discovery context is the common-sense, common-law deliberative
process privilege.” Jordan v. DOJ, 591 F.2d 753, 772 (D.C. Cir. 1978). This encompasses three
main policy purposes, two of which are applicable to this dispute: (1) to encourage open, frank
discussions on matters of policy between subordinates and superiors; and (2) to protect against
7 public confusion that might result from disclosure of reasons and rationales that were not in fact
ultimately the grounds for an agency’s action. See Russell v. Dep’t of Air Force, 682 F.2d 1045,
1048 (D.C. Cir. 1982); see also Missouri ex rel. Shorr v. U.S. Army Corps of Eng’rs, 147 F.3d
708, 710 (8th Cir. 1998) (“The purpose of the deliberative process privilege is to allow agencies
to freely explore alternative avenues of action and to engage in internal debates without fear of
public scrutiny.”).
Two requirements must be met to permit valid invocation of this privilege. The
communication to be withheld must be predecisional -- i.e., “antecedent to the adoption of an
agency policy,” Jordan, 591 F.2d at 774, and it must be deliberative -- i.e., “a direct part of the
deliberative process in that it makes recommendations or expresses opinions on legal or policy
matters.” Vaughn, 523 F.2d at 1143-44. A record or document can be predecisional in nature
even when an agency subsequently makes a final decision on the issue discussed in the record or
document. See Fed. Open Mkt. Comm. V. Merrill, 443 U.S. 340, 360 (1979).
Associate Solicitor Thompson affirmed OIG’s application of Exemption 5 “to withhold
internal agency discussion about a possible action to take, i.e., a proposed MSHA citation, which
was different from the violations MSHA ultimately issued.” Pacheco Decl., ¶ 15. OIG
redacted “MSHA employee’s [sic] thoughts, actions, opinions and ideas as the employees
weighed and debated the application of a particular citation that MSHA ultimately decided not to
issue.” Id., ¶ 17. As a result, DOL’s redactions clearly satisfy both of the requirements of the
privilege. First, since the redacted portion of the report contains information about a citation that
was considered but not issued, the subject matter is necessarily antecedent to the decision not to
issue that citation. Plaintiff’s contentions to the contrary -- stating that the “OIG Report was
published on December 9, 2002, well after the citations were issued,” Pl. Motion at 13 -- hold no
8 water because the question is whether the deliberation, not the publication of the report, preceded
the citation. It obviously did.
Similarly, the information is deliberative. Deliberative material “reflects the give and
take of the consultative process . . . [and] thus [includes] 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 Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980). An in camera review discloses that the redacted six lines
discuss deliberations over a proposed citation that was not issued. As the Court is satisfied that
the six lines at issue here contain information that is both predecisional and deliberative,
Defendants’ redaction pursuant to Exemption 5 was proper.
C. Exemptions 6 and 7(C)
Plaintiff next argues that Defendants improperly redacted material under Exemptions 6
and 7(C). The privacy interest in Exemption 6 is narrower than in Exemption 7(C), so if the
redactions satisfy the former, no examination of the latter is necessary. Exemption 6 protects
redactions under the following criteria: first, the information must be contained within
“personnel and medical files and similar files”; second, the disclosure of the information “would
constitute a clearly unwarranted invasion of personal privacy”; and third, if the first two
requirements are met, the privacy interest must be weighed against the public interest in
disclosure. See 5 U.S.C. § 552(b)(6); see also Armstrong v. Executive Office of the President,
97 F.3d 575, 582 (D.C. Cir. 1996).
The in camera review demonstrates that the information that DOL seeks to withhold --
including names of low-level MSHA employees, identifying information about individuals who
were the subject of internal personal discussions, personal opinions of job performance, personal
9 phone numbers, a home address, and a personal e-mail address -- meets the “similar files”
requirement. 2 In United States Department of State v. Washington Post Co., 456 U.S. 595
(1982), the Supreme Court held, based upon a review of the legislative history of FOIA, that
Congress intended the term “similar files” to be interpreted broadly, rather than narrowly. Id. at
599-603. The Court stated that the protection of an individual's privacy “surely was not intended
to turn upon the label of the file which contains the damaging information.” Id. at 601 (citing
H.R. Rep. No. 89-1497 at 11 (1966)); see Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C.
Cir. 2006) (“The Supreme Court has read Exemption 6 broadly, concluding the propriety of an
agency’s decision to withhold information does not ‘turn upon the label of the file which
contains the damaging information.’”) (quoting Wash. Post, 456 U.S. at 601). Rather, the Court
made clear that all information that “applies to a particular individual” meets the threshold
requirement for Exemption 6 protection. 456 U.S. at 602. “[I]nformation about an individual
should not lose the protection of Exemption 6 merely because it is stored by an agency in records
other than ‘personnel’ or ‘medical’ files.” Id. at 601.
All of the redactions here are either personal or job-performance information. DOL’s
Vaughn index, moreover, explains that the redactions were made under Exemptions 6 and 7(C)
because they “[i]dentif[ied] information about MSHA employees who were the subject of
internal personnel discussions, which consisted of personal opinions and comments about job
performance.” Performance appraisals are precisely the sort of information found in protected
personnel files. The withheld information, therefore, logically meets the “similar files” threshold
requirement for Exemption 6. See, e.g., FLRA v. U.S. Dep’t of Commerce, 962 F.2d 1055,
1059-61 (D.C. Cir. 1992) (affirming withholding of employee performance appraisals).
2 Exhibit 48 contains information redacted in the privacy interest of Dr. Celeste Monforton, former Special Assistant for the Assistant Secretary for MSHA. Because Monforton has waived her privacy interest in this information, see Monforton Decl., this information was disclosed.
10 Disclosure of the withheld information must also “constitute a clearly unwarranted
invasion of personal privacy” in order to be exempt. The disclosure must compromise a
substantial, as opposed to a de minimis, privacy interest. See, e.g., Multi Ag Media LLC v.
USDA, 515 F.3d 1224, 1229-30 (D.C. Cir. 2008). In this Circuit “[t]he threat to privacy . . .
need not be patent or obvious to be relevant.” Pub. Citizen Health Research Group v. U.S. Dep’t
of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978). The threat to privacy, though, must be real rather
than speculative. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976) (“The
legislative history is clear that Exemption 6 was directed at threats to privacy interests more
palpable than mere possibilities.”); Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 (D.C.
Cir. 1987) (stating that “[w]ithholding information to prevent speculative harm” is contrary to
FOIA’s pro-disclosure policy). Information need not be intimate or embarrassing to qualify for
Exemption 6 protection. See Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005).
Generally, personal identifying information such as a person’s name, address, phone number,
date of birth, criminal history, medical history, and social security number may be protected
under Exemption 6. See Wash. Post Co., 456 U.S. at 600 (“Information such as place of birth,
date of birth, date of marriage, employment history, and comparable data is not normally
regarded as highly personal, and yet . . . such information . . . would be exempt from any
disclosure that would constitute a clearly unwarranted invasion of personal privacy.”).
Here, DOL claims that “[r]evealing this information could risk that the individuals would
be the subject of unwarranted, unwelcome, and unexpected contacts by individuals and subject
these individuals to embarrassment and jealousy from co-workers.” Vaughn Index, ¶ 5. “[A]n
employee has at least a minimal privacy interest in his or her employment history and job
performance evaluations . . . [and] [t]hat privacy interest arises in part from the presumed
11 embarrassment or stigma wrought by negative disclosures.” People for Ethical Treatment of
Animals v. USDA, 2007 WL 1720136, at *4 (D.D.C. 2007). Federal civilian employees also
have a protectible privacy interest in purely personal details that do not shed light on agency
functions. See Kidd v. DOJ, 362 F. Supp. 2d 291, 296-97 (D.D.C. 2005) (finding privacy
interest in home telephone number); Barvick v. Cisneros, 941 F. Supp. 1015, 1020-21 (D. Kan.
1996) (finding privacy interest in personal information such as home addresses and telephone
numbers, social security numbers, and performance appraisals). Courts generally recognize the
sensitivity of information contained in personnel-related files and have accorded protection to the
personal details of a federal employee’s service. See, e.g., McLeod v. U.S. Coast Guard, 1997
WL 150096 (D.C. Cir. 1997) (finding privacy interest in Coast Guard officer’s evaluation
report); Putnam v. DOJ, 873 F. Supp. 705, 712-13 (D.D.C. 1995) (finding privacy interest in
names of FBI employees mentioned in “circumstances outside of their official duties,” such as
attending classes and applying for jobs).
The Court agrees that failure to redact the information here would constitute an
unwarranted invasion of employees’ personal privacy. The information redacted directly relates
to performance appraisals and contains some negative evaluations. This is identical to what the
preceding cases here kept private.
Having found that Defendants have satisfied the first two Exemption 6 requirements, the
Court must now weigh the public interest in disclosure against the individuals’ privacy interests.
The only valid public interest in the FOIA context is one that serves FOIA’s core purpose of
shedding light on an agency’s performance of its statutory duties. See DOJ v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 773 (1989). The requester has the burden of
demonstrating that public interest. See Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 nn.
12 8 & 13 (D.C. Cir. 1987). If a requester can demonstrate that disclosure would serve to “check
against corruption and to hold the governors accountable to the governed,” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978), she can generally satisfy this requirement. But the
balancing test does not even come “into play” when the requester has produced no evidence to
“warrant a belief by a reasonable person that the alleged Government impropriety might have
occurred.” NARA v. Favish, 541 U.S. 157, 175 (2004) (considering the balancing test as applied
to Exemption 7(C)).
Plaintiff argues that the public interest is great because it involves the propriety of a
government investigation into a mining disaster. Yet she fails to satisfy her burden for two
central reasons. First, Plaintiff’s “evidence” consists only of unsubstantiated allegations of a
government cover-up. Her supporting “statements” in the OIG report are, in actuality, only
“allegations” and “suggestions” by others that were determined to be unfounded. Second, the
Court’s in camera review has demonstrated that the redacted material is entirely unrelated to the
allegations Plaintiff makes. The public interest, therefore, does not outweigh the individuals’
privacy interests.
As the Agency’s redactions pursuant to Exemption 6 were valid, the Court need not
consider Exemption 7(C).
IV. Conclusion
Because Defendants properly segregated redactions from releases made pursuant to
Plaintiff’s FOIA request, and those redactions were proper under Exemptions 5 and 6, the Court
will grant Defendants’ Motion and deny Plaintiff’s Motion. An Order consistent with this
Opinion will issue today.
SO ORDERED.
13 /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 26, 2011