AMY BERMAN JACKSON, United States District Judge.
Plaintiff, Campaign Legal Center, submitted a request to the Department of Justice under the Freedom of Information Act, 5 U.S.C. § 552, seeking records relating to "President Trump's allegations and proposed investigation of `widespread voter fraud.'" Compl. [Dkt. # 1] ¶ 1. In response to the request, the government released six pages of responsive records, including an email chain, with partial redactions pursuant to FOIA Exemption 6. See 5 U.S.C. § 552(b)(6). Plaintiff brought this suit against the government on February 13, 2018, challenging only the redaction of the names in the email chain. Compl., "Requested Relief" at 6-7. The government subsequently released two of the names, including the name of the author of the original email, Hans von Spakovsky of the Heritage Foundation. His email, which was ultimately forwarded to Attorney General Jeff Sessions, sought a position on the President's commission on voter fraud, which he later obtained. Ex. E to Vanessa R. Brinkmann Decl. [Dkt. # 13-2] ("Redacted Email").
The government continues to the withhold the names of three other individuals who received and/or were mentioned in von Spakovsky's original email on the ground that revealing their identities would constitute an unwarranted invasion of their personal privacy. The government filed a motion for summary judgment, and plaintiff opposed it and filed its own cross motion for summary judgment.
Because the Court finds that the public has an interest in knowing about the formation of the Commission, including whether any other individual mentioned in the email was ultimately appointed alongside von Spakovsky, it finds that the release of the three individuals' names would not constitute an "unwarranted invasion of personal privacy" under 5 U.S.C. § 552(b)(6), and the names are not exempt from release.
On May 11, 2017, President Trump issued an Executive Order establishing the Presidential Advisory Commission on Election Integrity ("the Commission"). Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). The Commission, which was "solely advisory" in nature, was tasked with studying ways to improve the public's confidence in federal elections and to investigate "vulnerabilities in voting systems and practices ... that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting." Id. The Commission was directed to submit a report to the President with its findings, and it was set to terminate thirty days after submitting the report. Id. at 22,390. In order to accomplish its mission, the Commission was authorized to "hold public meetings and engage with Federal, State, and local officials, and election law experts, as necessary." Id. at 22,389.
The Executive Order states that the Vice President shall chair the Commission, and that the President shall appoint up to fifteen additional members, "who shall include individuals with knowledge and experience
On July 11, 2017, a group of Democrats on the Senate Judiciary Committee sent a letter to Attorney General Sessions and Acting Assistant Attorney General Wheeler seeking information on what they characterized as "apparent coordination" between the Department of Justice and the Commission.
On September 26, 2017, Senators sent another letter to Attorney General Sessions specifically seeking information about his potential involvement in von Spakovsky's appointment to the Commission.
On February 15, 2017, plaintiff submitted a FOIA request to the Office of Information Policy ("OIP") of DOJ seeking records concerning:
Ex. A to Vanessa R. Brinkmann Decl. [Dkt. # 13-2] ("FOIA Request") at 4-5. The request also sought communications to or from:
Id. at 5. The time frame for the request was November 9, 2016 to the "present." Id. at 4. In the request, plaintiff stated that it became interested in this information following the President's comments that a "major investigation" into alleged voter fraud was necessary, which it feared could be the "first step in an agenda to make it harder to vote." FOIA Request at 3-4. Although at the time the President had expressed the need for an investigation, id. at 3-4, a commission had not yet been established.
On August 22, 2017, OIP notified plaintiff that the searches had been completed, and it released six pages of responsive records, including the redacted email chain which is the subject of this litigation. Vanessa R. Brinkmann Decl. [Dkt. # 13-2] ("Brinkmann Decl.") ¶ 5; Ex. C to Brinkmann Decl. [Dkt. # 13-2] ("OIP Final Response"). OIP initially redacted the names of several individuals who appeared in the email chain, as well as the contact information of those individuals, and one incidental remark about personal travel plans, pursuant to FOIA Exemption 6, "which pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties." OIP Final Response at 1, citing 5 U.S.C. § 552(b)(6).
Following plaintiff's suit, the agency reconsidered its withholdings and released the names of two individuals who appeared in the email chain, Hans von Spakovsky and Ed Haden. Ex. D to Brinkmann Decl. [Dkt. # 13-2]. According to the government's declarant, the agency released their names since their heightened degree of "engagement" with the government reduced their privacy interest: von Spakovsky "authored the original e-mail and publicly acknowledged it," and Haden "affirmatively forwarded that e-mail to the government." Brinkmann Decl. ¶ 15.
On April 19, 2018, the government filed a motion for summary judgment arguing that it was justified in continuing to withhold the other three names and an incidental reference to von Spakovsky's personal travel plans in the email. Def.'s Mot. for Summ. J. [Dkt. # 13] ("Def.'s Mot."); Mem. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 13-1] ("Def.'s Mem.") at 6-11. Plaintiff opposed that motion, and filed its own motion for summary judgment challenging those redactions, and arguing in the alternative that the Court conduct an in camera review. Pl.'s Mot. for Summ. J. [Dkt. # 15]; Mem. in Opp. to Def.'s Mot. & in Supp. of Pl.'s Cross-Mot. for Summ. J. [Dkt. # 15] ("Pl.'s Cross-Mot."). Those motions are fully briefed and ripe for decision. See also Def.'s Combined Reply in Further Supp. of its Mot. for Summ. J. & Opp. to Pl.'s Cross-Mot. [Dkt. # 17] ("Def.'s Reply"); Pl.'s Reply in further Supp. of its Mot. for Summ. J. [Dkt. # 19] ("Cross-Reply").
The redacted email chain begins with an email dated February 22, 2017 from Hans von Spakovsky, who identifies himself as the "Manager, Election Law Reform Initiative and Senior Legal Fellow" at The Heritage Foundation. Redacted Email. When he sent the email, the Commission had not yet been established, and von Spakovsky had not yet been appointed a Commissioner.
The email is titled "voter fraud commission," and it contains three redacted names which the government refers to as individuals b6-1, b6-2, and b6-3. Redacted Email; Brinkmann Decl. ¶ 9. It is addressed to two individuals; one of them is Ed Haden, identified by the government as a "private attorney" who "formerly served on Mr. Sessions' Senate staff," Brinkmann Decl. ¶ 10 n.1, and the other recipient is "individual b6-1" whose name has not been disclosed. See Redacted Email. The email was copied to a third addressee, "individual b6-2," and the email purports to be communicating concerns shared by that individual and von Spakovsky. See id. ("(b)(6)-2 and I are concerned that this commission is being organized in a way that will guarantee its failure."). The third unidentified individual, b6-3, is mentioned once in the body of the email as an expert in the field of voter fraud. Id.
Because of the email's centrality to this suit, it is worth reproducing in full.
Id.
Less than two hours after receiving von Spakovsky's email, Haden forwarded it to Peggi Hanrahan, an assistant to Attorney General Jeff Sessions, who in turn forwarded it to the Attorney General on the same day. Brinkmann Decl. ¶ 10; Redacted Email.
The agency's declarant avers that:
Brinkmann Decl. ¶ 11. Based on these considerations, the agency determined that the three individuals' names should be withheld pursuant to FOIA Exemption 6.
In a FOIA case, the district court reviews the agency's action de novo, and the "`burden is on the agency' to show that requested material falls within a FOIA exemption." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002), quoting Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429,
In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations that describe "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 Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). 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, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). The question in this case is whether the agency has appropriately invoked Exemption 6.
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." Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), quoting 5 U.S.C. § 552(b)(6). "Exemption 6 is designed to protect personal information in public records, even if it is not embarrassing or of an intimate nature." Id. at 875. The relevant inquiry is "the extent of the interference with privacy that would be caused by disclosure of the name, address," or other personal information. Id.
When considering the validity of redactions under Exemption 6, the "threshold question is whether the requested information is contained in a personnel, medical, or similar file." Norton, 309 F.3d at 32, citing United States Dep't of State v. Wash. Post Co., 456 U.S. 595, 598, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). The parties do not dispute that the information at issue falls within that category. See Def.'s Mem. 4-5; Pl.'s Cross-Mot. at 10-11.
Next, the Court must consider whether disclosure of the information at issue — the names of the three individuals in von Spakovsky's email — would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). This inquiry involves a two-step process. "The first step ... requires determining that `disclosure would compromise a substantial, as opposed to a de minimis, privacy interest.'" Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review, 830 F.3d 667, 673-74 (D.C. Cir. 2016) ("AILA"), quoting Norton, 309 F.3d at 33 (internal quotation marks omitted). If the answer is yes, "then the Court must `balance' the individual's right of privacy against the public interest in disclosure." Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015), quoting Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005). "In undertaking this analysis, the court is guided by the instruction that, `under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.'" Norton, 309 F.3d at 32, quoting Wash. Post Co. v.
"[T]he only relevant `public interest in disclosure' to be weighed in this balance is the extent to which disclosure would serve the `core purpose of the FOIA,' which is `contribut[ing] significantly to public understanding of the operations or activities of the government.'" U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994), quoting DOJ v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (emphasis in original). "In other words, disclosure of government records under FOIA is meant to help the public stay informed about `what their government is up to.'" AILA, 830 F.3d at 674, quoting Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468.
The Court will analyze the privacy interests of the three unidentified individuals separately because their privacy interests may vary depending on the context in which their names appear in the email. See AILA, 830 F.3d at 675, quoting Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006) ("Exemption 6 ... `does not categorically exempt individuals' identities ... because the `privacy interest at stake may vary depending on the context in which it is asserted.'").
Individual b6-1 is one of the two individuals to whom von Spakovsky's email is addressed. See Redacted Email. This person's name appears nowhere else in the email chain. Id. The government's declarant avers that "[t]his individual has no apparent connection to the views expressed in Mr. von Spakovsky's e-mail and no known active role in the e-mail chain whatsoever," and therefore OIP determined that "this individual has a considerable privacy interest in being affiliated with the e-mail at issue." Brinkmann Decl. ¶ 16. Defendant suggest that revealing the fact that von Spakovsky chose to send the email to the recipient would expose not only the recipient's name, but it might also wrongfully attribute to him or her von Spakovsky's views. Def.'s Mem. at 8.
At this stage of the analysis, the issue of whether disclosure would compromise a substantial, as opposed to a de minimis, privacy interest "is not very demanding." Multi Ag Media LLC v. Dep't of Agric., 515 F.3d 1224, 1230 (D.C. Cir. 2008). According to the D.C. Circuit, the term "substantial" merely means "anything greater than a de minimis privacy interest." Id. at 1229-30. The Court has held that even a "speculative" risk of invasion of privacy may be enough to establish a more than de minimis privacy interest. See, e.g., Norton, 309 F.3d at 35, 37 (finding that the government had "established only the speculative potential of a privacy invasion without any degree of likelihood" but nonetheless holding that "the asserted privacy interests ... involve[ed] more than minimal invasions of individual privacy"); see also Multi Ag Media, 515 F.3d at 1230, quoting Norton, 309 F.3d at 35 (While "not persuaded that the privacy interest that may exist is particularly strong," the Court found that disclosure would risk "more than minimal invasion[ ] of personal privacy.").
In light of those precedents, the Court finds here that the revelation of b6-1's identity would compromise a "substantial," and not merely de minimis, privacy interest.
Since the asserted privacy interest involves more than a minimal invasion of individual privacy, the Court must go on to determine whether the public interest in disclosure outweighs the individual privacy concerns. See Norton, 309 F.3d at 33. Plaintiff argues that the public interest in disclosure is strong because "[r]evealing the identities of others mentioned in or included on the email may reveal additional information about the shaping of the Commission or other roles" in the Administration. Pl.'s Cross-Mot. at 22. Plaintiff insists that the "public has a right to know the identities of individuals who had the power to exert influence over the Attorney General and the information the Attorney General received while the Commission was still being formulated and conceived." Id. at 1-2; Cross-Reply at 11-12. According to plaintiff, the public interest is heightened here because von Spakovsky's "self-advocacy" to join the Commission "may have been effective," and the email at issue in this litigation sparked additional scrutiny by U.S. Senators regarding DOJ's ties to the Commission, including the Attorney General's role in selecting Commissioners. Pl.'s Cross-Mot. at 21-22.
The agency contends that plaintiff has failed to establish that a significant public interest exists because it did not demonstrate that the information in von Spakovsky's email was "acted upon." Def.'s Reply at 10, citing Brinkmann Decl. ¶ 14 (stating that the Attorney General does not have an "official role" in appointing members to the Commission under the terms of the Executive Order and that "OIP did not locate any further discussion or consideration of the von Spakovsky e-mail"). But FOIA does not require the plaintiff to prove that the information was "acted upon." The operative question is whether disclosure would advance FOIA's purpose of helping members of the public stay informed about "what their government is up to." Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468 (internal quotation marks omitted).
Here the Court agrees with plaintiff that disclosure would advance that goal by shedding light on the formation of the Commission by the executive branch. It is undisputed that von Spakovsky's email argued strongly for a particular make-up of the Commission, that his email was forwarded to the Attorney General while these decisions were underway, and that von Spakovsky himself was later appointed to the Commission. See Redacted Email. It is also the case that there has been significant public interest related to DOJ's ties to the Commission, including its role in the appointment process. See Senators' July 2017 Letter, Senators' September 2017 Letter, Senators' October 2017 Letter.
Since the Court has found a greater than de minimis privacy interest and a significant public interest in disclosure, the Court must now balance the two interests to determine whether the privacy stake is "not outweighed by the public interest in disclosure." Multi Ag Media, 515 F.3d at 1232. In conducting this balancing, the Court is mindful of the directive that "[a]t all times courts must bear in mind that FOIA mandates a strong presumption in favor of disclosure, and that the statutory exemptions, which are exclusive, are to be narrowly construed." Norton, 309 F.3d at 32 (internal citations and quotation marks omitted).
Given the public interest in the formation of the Commission, and the fact that von Spakovsky's appointment followed the transmittal of the email, there is a public interest in knowing who he asked to weigh in that outweighs the individual's weak privacy interest in shielding that information. Individual b6-1 was openly named as an additional addressee — rather than blind copied ("bcc") — so the name travelled with the email as it was forwarded to DOJ personnel. In light of those considerations, along with the "strong presumption in favor of disclosure," Norton, 309 F.3d at 32, the Court finds that the public interest in learning the identity of individual b6-1 out-weighs the relatively weak privacy interest the government identified. Accordingly, the government must disclose b6-1's name.
Individual b6-2 is central to the email, and at all points von Spakovsky purports to be advancing a joint point of view:
Redacted Email.
The government declarant points out that "[a]lthough the text of the e-mail might suggest that individual b6-2 shares the views expressed therein, individual b6-2 did not sign the e-mail, nor did this person weigh in on the e-mail." Brinkmann Decl. ¶ 17. Based on that, the agency believes "it is possible that the individual b6-2 did not, in fact, share the views being expressed or had a different perspective in the matter." Id. The agency states that it has been unable to verify whether individual b6-2 has publicly taken the positions attributed to him or her. Id. Consequently, it asserts that "there is a privacy interest where a personal opinion is attributed to an individual who has not actively chosen to share that opinion with the government or to take such a position publicly." Id.
The government's characterization of this individual as one who has not actively shared his or her opinion is entirely at odds with the text of the email, in particular the reference to the white paper that "we" sent previously. But since even a "speculative" privacy risk can meet the threshold requirement of a greater than minimal privacy interest, Norton, 309 F.3d at 37, the Court finds that there is at least a possibility that b6-2's views were inaccurately portrayed, and that he or she would have an interest in remaining unknown.
In any event, the heart of the analysis is whether this weak privacy interest out-weighs the strong public interest in disclosure. The Court finds it does not. Here in particular, the public has an interest in knowing who may have attempted to influence the appointment process, and whether individual b6-2 was ultimately named a Commissioner or added to the Administration. These interests, which squarely contribute to the public's understanding of the Government's operations or activities, see Fed. Labor Relations Auth., 510 U.S. at 487-88, 114 S.Ct. 1006, easily outweigh the highly speculative privacy interest the agency put forth, and so the redaction under Exemption 6 cannot stand.
Individual b6-3's name appears once in the email. Von Spakovsky wrote:
Redacted Email.
The government's declarant avers that individual b6-3 is "merely mentioned" in the email and "does not appear to have any role at all in the e-mail other than this passing reference to him." Brinkmann Decl. ¶ 17. The declarant adds that the agency has been "unable to identify any evidence" that individual b6-3 has "publicly taken positions that Mr. von Spakovsky has attributed" to him or her, id., and thus, the agency maintains that individual b6-3 has a substantial privacy interest in his or her name. Def.'s Reply at 7.
Plaintiff argues that "[s]ince b6-3 has evidently written publicly in [the voter fraud] field, b6-3 has no serious privacy interest in being identified by Mr. von Spakovsky as a relevant authority on matters of voter fraud." Pl.'s Cross-Mot. at 19. But that does not address, the agency's concern that von Spakovsky may have erroneously characterized individual b6-3 as
While a privacy interest in avoiding a possibly inaccurate portrayal has not been established with any degree of likelihood, the Court finds that the risk is more than minimal, and that is all that is required to move on to the balancing test. Norton, 309 F.3d at 35, 37. The Court finds that the public has an interest in knowing whether b6-3 was ultimately appointed to the Commission, and in generally scrutinizing the formation of the Commission, and these strong interests, coupled with the "strong presumption" favoring disclosure, id. at 32, are enough to outweigh the relatively weak privacy interest here. As such, the agency must disclose individual b6-3's name.
Finally, plaintiff challenges the redaction designated "b6-4" which pertains to von Spakovsky's personal travel plans.
For the reasons stated, the Court will deny defendant's motion for summary judgment, [Dkt. # 13], with respect to redactions (b)(6)-1, (b)(6)-2, and (b)(6)-3, and grant defendant's motion with respect to redaction (b)(6)-4.
The Court will grant plaintiff's motion for summary judgment, [Dkt. # 15], with respect to redactions (b)(6)-1, (b)(6)-2, and (b)(6)-3, and deny plaintiff's motion with respect to redaction (b)(6)-4 and its request for an in camera review of the withheld material.
Id. at 1-2.
