UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) U.S. INVENTOR, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 23-3639 (ABJ) ) UNITED STATES PATENT ) AND TRADEMARK OFFICE, ) ) Defendant. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff U.S. Inventor, Inc. brought this action against the United States Patent and
Trademark Office (“PTO”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
seeking records related to the individual “bonus award payments” made to Administrative Patent
Judges (“APJs”). Compl. [Dkt. # 1] ¶ 1. The agency compiled a spreadsheet listing 3,690 bonus
payments, including year-end performance bonuses, “gainsharing” awards, “special act” awards,
and “time off” awards, and it released the spreadsheet to plaintiff with the rows reflecting the
performance bonuses and gainsharing awards completely withheld under FOIA Exemption 6. Ex.
2 to Decl. of Kathryn Siehndel [Dkt. # 12-2] (“Award Spreadsheet”); Vaughn Index, Ex. 3 to Decl.
of Kathryn Siehndel [Dkt. # 12-3].
Pending before the Court are the parties’ motions for summary judgment over whether the
agency properly applied Exemption 6. Def.’s Mot. for Summ. J [Dkt. # 12] (“Def.’s Mot.”); Pl.’s
Mem. in Opp. to Def.’s Mot. & Cross-Mot. for Summ. J. [Dkt. # 14-1] (“Pl.’s Cross-Mot.”). The
motions are fully briefed. Def.’s Reply in Supp. of Def.’s Mot. & Opp. to Pl.’s Cross-Mot. [Dkt.
# 17] (“Def.’s Reply”); Pl.’s Reply in Supp. of Pl.’s Cross-Mot. [Dkt. # 19] (“Pl.’s Reply”); Def.’s Statement of Undisputed Material Facts [Dkt. # 12-4] (“DSUMF”); Pl.’s Statement of Undisputed
Material Facts [Dkt. # 14-4] (“PSUMF”).
For the reasons stated below, defendant’s motion for summary judgment will be
GRANTED IN PART AND DENIED IN PART and plaintiff’s cross-motion for summary
judgment will be GRANTED IN PART AND DENIED IN PART. The Court rules in favor of
the defendant with respect to the applicability of Exemption 6 and the withholding of information
identifying which Administrative Patent Judges received performance bonus and gainsharing
awards, but it finds in favor of the plaintiff with respect to segregability, and it will order the release
of additional, non-private information.
BACKGROUND
The United States Patent and Trademark Office is responsible for granting and issuing
patents. Decl. of Kathryn Siehndel [Dkt. # 12-1] (“Siehndel Decl.”) ¶ 3. When a party applies to
the PTO for a patent, the decision of patentability is initially made by a Patent Examiner. Id. ¶ 4.
If the Patent Examiner rejects the application, the party can appeal to the Patent Trial and Appeal
Board (“PTAB”). Id. PTAB can also decide questions of patentability raised by third parties in
proceedings colloquially known as “AIA proceedings,” referring to the Leahy-Smith America
Invents Act, Pub. L. No. 112-29, 125 Stat. 329-331 (2011). Id. Administrative Patent Judges are
the individuals authorized to decide the appeals and AIA proceedings that go before PTAB. Id.;
PSUMF ¶ 1.
On June 27, 2023, plaintiff sent a FOIA request to the Patent and Trademark Office seeking
“copies of pay records documenting all individual bonus award payments made to each APJ from
October 1, 2011 to present.” DSUMF ¶¶ 1–2; PSUMF ¶¶ 2–3; Ex. 1 to Pl.’s Cross-Mot. [Dkt.
# 14-3] (“Request Letter”) at 1. The request specified that the records “may include multiple
2 payment records for the same APJ in a single fiscal year,” and that plaintiff wanted “records for
each separate bonus award payment to the APJ, reflecting the amount, the date it was [paid],
and . . . the PTO transaction number of the payment.” Request Letter at 1 (emphasis in original).
The request further sought “the full name of the APJ and the base salary of the APJ at the time the
bonus award payment was made.” Id.
The agency acknowledged receipt of the request on June 28, and it prepared a report that
included all awards made to the APJs from October 1, 2011 to August 24, 2023, the date the report
was run. DSUMF ¶¶ 3–4, citing Siehndel Decl. ¶¶ 8, 13. The report consisted of a 93-page
spreadsheet with 3,690 rows listing each individual award. Id. ¶ 13. For each award, the
spreadsheet included columns for: the fiscal year, the APJ’s name, the APJ’s base salary, the award
date, the award amount, the award code, and the award description used in the Agency’s personnel
system. Id.
Four types of awards were included in the report. Id. ¶ 14. First, there were “[y]ear-end
performance bonuses.” Id. ¶ 14(a). The bonuses were based “based directly on the APJ’s annual
performance ratings,” so, for example, if an APJ received an “Outstanding” rating, they would
receive a certain amount of money, while a lower performance rating would result in a lower
amount. Id. Second, there were “gainsharing awards” based on the APJ’s “individual production
level” and “rating-based eligibility requirements” Id. ¶ 14(b). Third, there were “[o]ther monetary
awards,” including individual or group “special act awards” that recognize “distinguished
achievements or significant contributions.” Id. ¶ 14(c). And finally, there were “[t]ime off
awards” granted “for exceptional contributions that benefit the government.” Id. ¶ 14(d).
The agency responded to plaintiff’s request on September 8, 2023, stating that it had
identified responsive records, but that it would withhold the records in their entirety under
3 Exemption 6. DSUMF ¶ 6; PSUMF ¶ 5; Ex. 2 to Pl.’s Cross-Mot. [Dkt. # 14-3] at 1. It explained
that the information was “directly tied to performance ratings” of the individual APJs, and that it
did “little to shed light or contribute significantly to public understanding of the operations or
activities of the USPTO.” Ex. 2 at 1–2.
Plaintiff appealed the response to the agency’s Office of General Counsel. DSUMF ¶¶ 8–
9; PSUMF ¶ 6; Ex. 3 to Pl.’s Mot. [Dkt. # 14-3] at 1–5. On October 20, the Office of General
Counsel granted plaintiff’s administrative appeal in part. DSUMF ¶¶ 10–12; PSUMF ¶ 7; Ex. 6
to Compl. [Dkt. # 1-1] (“Appeal Letter”) at 6. The decision on appeal explained that only the year-
end performance bonuses and gainsharing awards would reveal information regarding the APJs’
performance ratings, and therefore, it ordered that the “individual or group special act awards and
time-off awards be released, subject to any other applicable FOIA exemptions.” Id. at 4–8.1 The
agency also notified plaintiff that it expected to send the records by November 20, 2023. Ex. 7 to
Compl. [Dkt. # 1-1] at 1.
After a period in which it did not received the agency’s revised spreadsheet, plaintiff
brought the instant suit on December 7, 2023. Compl. ¶ 1. On December 22, the agency released
the revised version of the spreadsheet with the special act and time-off awards unredacted, but it
continued to withhold the remaining entries – the rows reflecting performance bonus and
gainsharing awards – under Exemption 6. DSUMF ¶¶ 13–14; PSUMF ¶ 11; Pl.’s Resp. to DSUMF
¶ 13.
1 The Office of General Counsel affirmed the agency’s prior decision to deny plaintiff’s request for a fee waiver, but that denial is not at issue in this suit. DSUMF ¶ 11; Pl.’s Resp. to DSUMF ¶ 11. 4 STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable
of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the summary judgment
motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
“The rule governing cross-motions for summary judgment . . . is that neither party waives
the right to a full trial on the merits by filing its own motion; each side concedes that no material
facts are at issue only for the purposes of its own motion.” Sherwood v. Wash. Post, 871 F.2d
1144, 1147 n.4 (D.C. Cir. 1989) (alteration in original), quoting McKenzie v. Sawyer, 684 F.2d 62,
68 n.3 (D.C. Cir. 1982). In assessing each party’s motion, “[a]ll underlying facts and inferences
5 are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of
Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
ANALYSIS
The Freedom of Information Act “requires every federal agency, upon request, to make
‘promptly available to any person’ any ‘records’ so long as the request ‘reasonably describes such
records.’” Assassination Archives & Rsch. Ctr. v. Cent. Intel. Agency, 334 F.3d 55, 57 (D.C. Cir.
2003), quoting 5 U.S.C. § 552(a)(3). The objective of FOIA is “to pierce the veil of administrative
secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Ross,
425 U.S. 352, 361 (1976). But in “recognition that the release of certain information may harm
legitimate governmental or private interests,” the statute provides nine exemptions under which an
agency may withhold certain records. Assassination Archives & Rsch. Ctr., 334 F.3d at 57, quoting
Summers v. Dep’t of Just., 140 F.3d 1077, 1079 (D.C. Cir. 1998) (internal quotation marks
omitted).
Exemption 6 of FOIA authorizes an agency to withhold “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 primary purpose of the exemption is “to protect individuals
from the injury and embarrassment that can result from the unnecessary disclosure of personal
information.” U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599 (1982).
To justify a withholding under Exemption 6, the agency “must show three things. First it
must demonstrate that the withheld files are ‘personnel [or] medical files [or] similar files.’”
Perioperative Servs. & Logistics, LLC v. U.S. Dep’t of Veterans Affs., 57 F.4th 1061, 1067 (D.C.
Cir. 2023), quoting 5 U.S.C. § 552(b)(6). Second, it “must show that disclosure would
compromise a substantial, as opposed to a de minimis privacy interest.” Id., quoting Nat’l Assoc.
6 of Home Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2022) (internal quotation marks omitted).
Third, it “must show that this privacy interest outweighs the public interest in the release of the
records such that disclosure would cause a clearly unwarranted invasion of personal privacy.” Id.,
quoting Norton, 309 F.3d at 33 (internal quotations and alterations omitted). The government may
carry its burden “by affidavits if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147
(D.C. Cir. 2015) (internal quotation marks omitted).
Plaintiff argues that the agency improperly invoked Exemption 6 to withhold the rows in
the spreadsheet related to year-end performance bonuses and gainsharing awards. Pl.’s Cross-
Mot. at 1. The parties do not dispute that the records are “personnel” or “similar” files with the
meaning of Exemption 6. Def.’s Mot. at 8; Pl.’s Cross-Mot. at 6, n. 6. But plaintiff asserts that
the APJs do not have a substantial privacy interest in the information, and that even if they did,
that interest would be outweighed by the strong public interest in disclosure. Pl.’s Cross-Mot. at
6–19.
I. The APJs have a substantial privacy interest in their performance bonuses and gainsharing award information because it reveals their performance ratings.
“[T]he concept of personal privacy” protected by FOIA “is not some limited or cramped
notion,” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 165 (2004), but rather, “privacy
encompass[es] the individual’s control of information concerning his or her person.” U.S. Dep’t
of Justice v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). The D.C. Circuit
has recognized generally “that an employee has at least a minimal privacy interest in his or
her . . . job performance evaluations.” Stern v. Fed. Bureau of Invest., 737 F.2d 84, 91 (D.C. Cir.
1984). The interest “arises in part from the presumed embarrassment or stigma wrought by
7 negative disclosures.” Id. And it “also reflects the employee’s more general interest in the
nondisclosure of diverse bits and pieces of information, both positive and negative, that the
government, acting as an employer, has obtained and kept in the employee’s personnel file.” Id.
More specifically, the D.C. Circuit has found that government employees have a substantial
privacy interest in their performance ratings. In Federal Labor Relations Authority v. United
States Department of Commerce, 962 F.2d 1055 (D.C. Cir. 1992), the Court determined whether
an agency properly withheld the names of its employees who received an “outstanding” or
“commendable” rating on their performance evaluations under Exemption 6. Id. at 1056, 1059.
As to the privacy interest, the Court held that the “[agency] employees who received outstanding
or commendable ratings have a substantial interest in maintaining the privacy of their evaluations.”
Id. at 1059. It explained that “disclosure of even favorable information may well embarrass an
individual or incite jealousy in his or her co-workers.” Id., citing Ripskis v. U.S. Dep’t of Hous. &
Urb. Dev., 746 F.2d 1, 3 (D.C. Cir. 1984). It further noted that “a list identifying those employees
who received outstanding and commendable ratings reveals by omission the identities of those
employees who did not receive high ratings, creating an invasion of their privacy.” Id.
The Administrative Patent Judges in this case have a substantial privacy interest in the
records that reveal whether they received a performance bonus and gainsharing award because,
combined with publicly available information, it would reveal their individual performance
ratings. As defendant’s declarant explained, plaintiff already has access to the agency’s “annual
table of bonus ranges” for 2019, which it posted on its website. Siehdel Decl. ¶ 14(a). That table
includes a set of recommended ranges dictating the amount of the bonus to be awarded to an APJ
based on their performance rating. Id. ¶ 14(a) n.2, citing https://perma.cc/PKJ2-4JNL. According
to the table, an APJ with an “Outstanding” rating should receive a bonus between $8,500 and
8 $10,000, a “Commendable” rating should result in a bonus between $6,000 and $8,000, and a
recipient of a “Fully Successful” rating should receive $4,000. Id. Using the performance bonus
award information that was redacted from the FOIA production and the table, plaintiff could
determine the APJ’s performance rating by comparing the monetary amount awarded to the
recommended range chart. Siehndel Decl. ¶ 39.
The gainsharing awards would similarly reveal the APJs performance ratings. APJs were
only eligible to receive a gainsharing award if their most recent performance rating was at least
Fully Successful, so revealing the list of APJs who received such an award “would automatically
tell a reader than an employee’s performance was at least a certain level.” Suppl. Decl. of Kathyrn
Siehndel [Dkt. # 17-1] (“Suppl. Siehndel Decl.”) ¶ 16.
In sum, like the employees in Federal Labor Relations Authority, the APJs have a
substantial interest in maintaining the privacy of their performance ratings, and that interest would
be compromised by the release of information in the Award Spreadsheet identifying the APJs who
received performance bonus or gainsharing awards.
Plaintiff asserts that withholding the bonus and gainsharing information “would make dead
letter of the civil service regulation providing that performance award information is public by
default.” Pl.’s Cross-Mot. at 9. But the regulation it points to, 5 C.F.R. § 293.311(a)(4), does not
obligate defendant to release the individual award information redacted here. While section
293.311(a) states that “[p]resent and past annual salary rates (including performance awards or
bonuses)” will be “available to the public,” section 293.311(b) clarifies that it is not meant to
undermine or outweigh the exemptions in the FOIA statute or the privacy interests at stake here:
The Office or agency will generally not disclose information where the data sought is a list of names, present or past position titles, grades, salaries, performance standards, and/or duty stations of Federal employees which, as determined by the official responsible for custody of the information:
9 (1) Is selected in such a way that would reveal more about the employee on whom information is sought than the six enumerated items, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; or
(2) Would otherwise be protected from mandatory disclosure under an exemption of the FOIA.
5 C.F.R. § 293.311(b).
Plaintiff also argues that the privacy interest of the APJs is diminished by the prior release
of a dataset by the Office of Personnel Management (“OPM) that disclosed the base salary and
total bonus payments for each APJ between 2012 and 2018. Pl.’s Cross-Mot. at 3–4, 7.2 For one
thing, the instant FOIA request covers six additional years for which plaintiff does not have any
bonus or gainsharing award information – 2011, and 2019 through 2023. But more to the point,
plaintiff is not simply seeking the APJs’ total annual bonus compensation; it seeks “records for
each separate bonus award payment to the APJ,” Request Letter at 1, which directly reveals new
information – an individual APJ’s specific performance rating – that implicates its own set of
privacy concerns.
Finally, plaintiff cites Stern v. Federal Bureau of Investigation, 737 F.2d 84 (D.C. Cir.
1984), to argue the APJs have a diminished privacy interest in their award information because of
their status as government employees with “expansive authority.” Pl.’s Cross-Mot. at 10–12. But
the facts of Stern are inapposite to this case. Stern involved a FOIA request for the names of three
FBI agents who had been “investigated in connection with a possible cover-up of illegal FBI
surveillance activities.” 737 F.2d at 86. And the Court’s conclusion that revealing the most senior
2 Plaintiff provided the Court with a link to view this information online, see Pl.’s Cross- Mot. at 3 n.3, but that link appears to be no longer in use and does not show the data plaintiff describes. See APJ Compensation Data (2012–2019), Fair Inventing, https://perma.cc/343D- RKC5. 10 agent’s name would not be an unwarranted invasion of personal privacy turned on the fact that
“[h]e was a higher-level official than the other two employees, and he participated knowingly in
[a] cover-up.” Id. at 93 (emphasis in original). So it was not simply the agent’s level of authority
that prompted the release in Stern, and the case has no bearing on the issue before the Court.
II. The privacy interest of the APJs outweighs the public interest in the records.
Because the APJs have a substantial privacy interest in the performance bonus and
gainsharing award information, the Court must weigh that interest against the public interest in the
release of the records. Wash. Post Co., 690 F.2d at 261. The FOIA requester bears the burden of
demonstrating the public interest in the disclosure. See Favish, 541 U.S. at 172 (“Where the
privacy concerns addressed by Exemption 7(C) are present, the exemption requires the person
requested the information to establish a sufficient reason for the disclosure.”); U.S. Dep’t of Def.
v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 n.6 (1994) (Exemption 6 public interest inquiry
parallels Exemption 7(C) inquiry). The agency must then show that the privacy interest outweighs
the public interest. Perioperative Servs., 57 F.4th at 1067.
The only valid public interest under Exemption 6 is the extent to which disclosure would
“shed light on an agency’s performance of its statutory duties or otherwise let citizens know what
their government is up to.” U.S. Dep’t of Defense, 510 U.S. at 497, quoting Reps. Comm. for
Freedom of Press, 489 U.S. at 773 (1989). In assessing the public interest, the Court must
“examine the nature of the requested document and its relationship” to FOIA’s purpose. Horner,
879 F.2d at 848, quoting Reporters Comm., 109 S. Ct. at 1481 (internal quotation marks omitted).
“[D]isclosure of information affecting privacy interests is permissible only if the information bears
directly on the character of a government agency.” U.S. Dep’t of Health & Hum. Servs. v. Fed.
Lab. Rels. Auth., No. 92-1012, 1992 WL 390891, at *1 (D.C. Cir. Dec. 10, 1992) (emphasis in
11 original), citing Horner, 879 F.2d at 879 (explaining that “unless the public would learn something
directly about the workings of the Government,” there is no public interest in disclosure).
Plaintiff offers three theories as to how the public interest would be served by release of
the records, two of which focus on whether and to what extent the Patent and Trademark Office
violated 5 U.S.C. § 4505a(a)(2) and 5 C.F.R. § 451.106(b) through unlawful award payments.
Pl.’s Cross-Mot. at 12–19.
Section 4505a(a)(2) governs “[p]erformance-based cash awards” to agency employees:
A cash award . . . shall be equal to an amount determined appropriate by the head of the agency, but may not be more than 10 percent of the employee’s annual rate of basic pay. . . . [T]he agency head may authorize a cash award equal to an amount exceeding 10 percent of the employee’s annual rate of basic pay if the agency head determines that exceptional performance by the employee justifies such an award, but in no case may an award under this section exceed 20 percent of the employee’s annual rate of basic pay.
5 U.S.C.A. § 4505a(a)(2). And under section 451.106(b): “When a recommended award would
grant more than $10,000 to an individual employee, the agency shall submit the recommendation
to OPM for approval.” 5 C.F.R. § 451.106(b).
Plaintiff states that it is seeking the performance and gainsharing awards “to determine how
many APJs received bonuses in excess of 10 percent of their base salary” and whether the agency
sought OPM approval for those bonuses. Id. at 12, 15. But the agency’s declarant has explained
that there are no records that would fall into that category: “I have personally reviewed all entries
on the 93-page spreadsheet and none of the award payments exceed $10,000 (nor do they exceed
10% of an APJ’s salary, which would be more than $10,000).” Suppl. Siehndel Decl. ¶ 31. Thus,
there is no basis to find that the public interest would be served by releasing the redacted material
for the first two grounds proposed by the plaintiff.
12 Plaintiff also asserts that the bonus and gainsharing awards will “expand understanding of
the extent to which APJs receive higher bonuses when making decisions to cancel patents than
when deciding to uphold them.” Pl.’s Cross-Mot. at 12. It cites a study by Ron Katznelson, Ph.D.,
which concluded that APJs received higher bonuses when cancelling patents based on OPM data
that disclosed the base salary and total bonus payment for each APJ between 2012 and 2018. Id.;
see id. at 3–4 (explaining Dr. Katznelson’s research).
While it is true that the public has a “strong interest in the disclosure of . . . conflicts of
interest,” id., citing Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 264
(D.C. Cir. 1982), plaintiff has struggled to demonstrate how the performance bonus and
gainsharing awards bear on that interest. Its pleadings state summarily that the records would
allow it to “update [Dr. Katznelson’s] analysis to the present and shed light on the monumentally
important issue.” Pl.’s Cross-Mot. at 14; see Pl.’s Reply at 8 (“[T]he bonus information would
allow Dr. Katznelson to refine his analysis.”). And Dr. Katznelson’s declaration does not explain
how he would use the data or how the individual awards would advance his analysis. Ex. 1 to Pl.’s
Cross-Mot., Decl. of Ron Katznelson [Dkt. # 14-2] ¶ 9 (explaining that the information “would
permit [him] . . . to continue to assess” whether APJs are incentivized to cancel patents).
The most the Court can gather from a footnote in plaintiff’s cross-motion is that, in
plaintiff’s view, the “APJ names are critical to this analysis” because Dr. Katznelson’s research
“showed [a] correlation by researching the results specific named APJs reached in specific cases
during the bonus period and comparing those with the bonuses received in that period by these
named APJs.” Pl.’s Cross Mot. at 14 n.9; Pl.’s Reply at 1. But plaintiff has not articulated how
the mere fact that an APJ received an award in a year in which they also decided to cancel a patent
reveals a conflict of interest or self-dealing on the party of an APJ, who may have made multiple
13 decisions that year. The connection is highly attenuated and vague, and the information sought
cannot be likened to the lists of organizations in which agency consultants had a financial interest
that were at the heart of the Washington Post case. See 690 F.2d at 262–64 (finding that there was
no substantial privacy interest in the information, and that the public “has a singularly strong
interest in the disclosure of consultants’ conflicts of interest,” since the scientific consultants
determined who received “roughly $1 billion per year in cancer research funds”).
Since plaintiff has not shown how the information sought bears directly on the public
interest identified, the Court finds that the Administrative Patent Judges’ privacy interest
outweighs the public interest in the withheld information.
III. The agency must release all segregable, non-exempt information.
Finally, plaintiff argues that the agency should release any columns within the redacted
rows of the spreadsheet that do not implicate the APJs’ substantial privacy interest under
Exemption 6. See Pl.’s Cross-Mot. at 19 (“To the extent the Court concludes that APJs’ privacy
interests in their bonus payments outweigh the public interests in disclosure, it should at least order
the disclosure of all other columns, which are not exempt.”).
“Before approving the application of a FOIA exemption, the district court must make
specific findings of segregability regarding the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (collecting cases). An agency must release
“[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), unless the non-exempt
portions are “inextricably intertwined with exempt portions” of the record. Mead Data Ctr. v. U.S.
Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977); see also Johnson v. Exec. Office for
U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). “[T]o demonstrate that all reasonably segregable
material has been released, the agency must provide a ‘detailed justification’ for its non-
14 segregability,” although it “is not required to provide so much detail that the exempt material
would be effectively disclosed.” Johnson, 310 F.3d at 776, citing Mead Data Ctr., 566 F.2d at
261. “Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material,” Sussman, 494 F.3d at 1117, and “[a] court may rely on
government affidavits that show with reasonable specificity why documents withheld pursuant to
a valid exemption cannot be further segregated.” Juarez v. U.S. Dep’t of Just., 518 F.3d 54, 61
(D.C. Cir. 2008).
Plaintiff’s original FOIA request sought records related to every bonus payment, including
the amount of the bonus, the date it was paid, the transaction number of the payment, the full name
of the APJ, and the base salary of the APJ. Request Letter at 1. The spreadsheet created by the
agency lists each individual payment in its own row, with columns across the top of the spreadsheet
for the fiscal year of the payment, the full name of the APJ, the “Pay Plan,” the “Occ Series,” the
base salary of the APJ, the award date, the award amount, the award code, and the award
description. See Award Spreadsheet. The agency maintains it was necessary to redact the entire
row reflecting any performance bonus or gainsharing award to protect the privacy interests the
Court has recognized above. After reviewing the declarations and the copy of the redacted
spreadsheet that has been provided, though, the Court is of the view that more can be disclosed
without impinging upon the APJ’s privacy.
The agency’s declarant asserted that – unsurprisingly – releasing the name column in any
row involving a performance bonus or gainsharing award would reveal which APJ received the
award, and that the date column would further enable the reader to deduce which awards an
employee received if they received more than one. See Siehndel Decl. ¶ 43 (“[I]f USPTO had
released all of the names . . . of the APJs in the responsive spreadsheet, it would have released
15 which APJs received awards and . . . which did not.”); id. ¶ 14 (explaining that the gainsharing
awards existed only during the period between 2012 to 2017 and could be identified by date);
Suppl. Siehndel Decl. ¶ 38. She also explained that because PTO released the base salary column
for the special act and time off awards, it could not release the same column for the withheld
awards because it would link the unredacted names to the redacted ones. Siehndel Decl. ¶ 43.3 As
for the rest of the information, the declarant stated simply that “it would be impossible to release
an additional data . . . linked to individuals without also resulting in an unwarranted invasion of
personal privacy.” Siehndel Decl. ¶ 45.
The Court recognizes that releasing the names in the redacted rows would link individual
APJs to the performance ratings in which they have a substantial privacy interest. But private
information is not necessarily intertwined with the information in the other columns of the
spreadsheet. In other words, if one were to look at any particular row in isolation, redacting the
name column alone would solve the identification issue, and plaintiffs would not be able to match
an APJ with a specific type of award, and what it says about the judge’s performance.
However, the rows do not appear in isolation, so there is one other step that needs to be
taken before other segregable information can be disclosed. The current version of the spreadsheet
is arranged “alphabetically by APJ last name and then chronologically.” Vaughn Index at 1. This
means that where there is a redacted row between two unredacted rows with the same APJ name,
the reader can infer that the same APJ received a performance-based or gainsharing award. Pl.’s
Cross Mot. at 20. That problem can be alleviated if the agency produces a separate spreadsheet
3 Although the Court recognizes that base salary could be a piece of information identifying the APJ, it appears from the current version of the Award Spreadsheet that multiple APJs have the same base salary, and therefore it will not order the redaction of that information. 16 that includes only the year-end performance bonus and gainsharing awards with the names
redacted, as the reader would no longer have adjacent unredacted rows to support an inference.
The Court finds, then, that the agency could reasonably segregate portions of the redacted
rows without implicating the privacy interests of the APJs under Exemption 6. The defendant
must release a revised version of the spreadsheet that reflects all of the performance bonus and
gainsharing awards, with only the “Full Name” column redacted by February 4, 2026.
CONCLUSION
For the reasons above, defendant’s motion for summary judgment is GRANTED IN
PART AND DENIED IN PART and plaintiff’s cross-motion for summary judgment is
GRANTED IN PART AND DENIED IN PART.
A separate order will issue.
AMY BERMAN JACKSON United States District Judge
DATE: January 14, 2026