IKUTA, Circuit Judge:
This case requires us to determine whether the names of foreign students and instructors at the Western Hemisphere Institute for Security Cooperation (WHINSEC) are exempt from disclosure under Exemption 6 of the Freedom of Information Act (FOIA). 5 U.S.C. § 552(b)(6). Because we conclude that the disclosure of these names "would constitute a clearly unwarranted invasion of personal privacy," id., we reverse the district court's grant of summary judgment to the plaintiffs.
We begin with the factual background regarding the development of WHINSEC, the Department of Defense's adjustments to its disclosure policy in light of the terrorist attacks of 2001, and the plaintiffs' lawsuit.
The United States Army School of the Americas (SOA) opened in 1946 "for the purpose of providing military education and training to military personnel of Central and South American countries and Caribbean countries." 10 U.S.C. § 4415(b) (1987). In 1989, during the Salvadoran Civil War, Salvadoran soldiers gunned down six Jesuit priests as well as their housekeeper and her 16-year-old daughter. It was later reported that 19 of the 26 soldiers implicated in these deaths had attended SOA. These murders sparked protests against SOA and prompted the formation of School of the Americas Watch (SOAW), a human rights and advocacy group dedicated to monitoring SOA graduates and lobbying for closure of the school.
As part of these monitoring efforts, SOAW submitted a FOIA request to the
In 1997, Congress sought to improve the human rights record of SOA by adopting the Leahy Amendments to the Foreign Operations Appropriations Act. See Foreign Operations, Export Financing, and Related Programs Appropriation Act, 1998, Pub. L. No. 105-118, § 570, 111 Stat. 2386, 2429 (1997).
Congress reenacted the Leahy Amendments in subsequent appropriations bills
In conjunction with implementing these laws, Congress replaced SOA with a new training facility called the Western Hemisphere Institute for Security Cooperation (WHINSEC). See Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Pub. L. No. 106-398, § 911, 114 Stat. 1654A-226 (2000) (codified at 10 U.S.C. § 2166). WHINSEC, which opened its doors on January 17, 2001, provides "professional education and training to eligible personnel of nations of the Western Hemisphere." 10 U.S.C. § 2166(b). Section 2166 states that one of the purposes of WHINSEC is "promoting ... respect for human rights." Id. To accomplish this goal, Congress required that the WHINSEC curriculum "include mandatory instruction for each student, for at least 8 hours, on human rights, the rule of law, due process, civilian control of the military, and the role of the military in a democratic society." Id. § 2166(d)(1).
To ensure that WHINSEC complies with its statutory obligations, Congress established an independent WHINSEC Board of Visitors charged with "inquir[ing] into the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of [WHINSEC]." Id. § 2166(e)(4)(A). Under this statute, the Board of Visitors must hold an annual public meeting and "submit to the Secretary of Defense a written report of its activities and of its views and recommendations pertaining to the Institute." Id. §§ 2166(e)(3), (5). Pursuant to these obligations, the Board of Visitors maintains an updated database containing details on its
While the State Department, rather than WHINSEC, is responsible for vetting the individuals designated to attend the school, the Board has reviewed the vetting process in response to public comments. Letter from Ambassador Jose S. Sorzano, Immediate Past Board Chairman, WHINSEC BoV & Bishop Robert C. Morlino, Board Chairman, WHINSEC BoV, to School of Americas Watch 1-2
Each report by the Board of Visitors is ultimately sent to the Secretary of Defense, who is then required to submit a detailed annual report to Congress. 10 U.S.C. § 2166(i). In its 2007 report, the Secretary noted that the "WHINSEC Democracy and Human Rights Program is a very successful and innovative program" that "is woven into every aspect of the curriculum." Sec'y of Def., Annual Report to Cong. on the Activities of the Western Hemisphere Institute for Security Cooperation 3 (2007). With respect to the student selection process, the Secretary stated that after the participating foreign countries nominate individuals to attend WHINSEC, the American Embassy in each country conducts a background check, which is "followed up by thorough vetting at the Department of State, in accordance with the Leahy Amendment." Id. at 7. The nominees "are scrutinized for records of human rights abuses, corruption, or criminal activities that would render them ineligible or inappropriate for U.S. training programs." Id.
The terrorist attacks of September 11, 2001, which occurred just nine months after WHINSEC began operations, heightened the DOD's concerns regarding protecting its personnel. On November 9, 2001, the DOD issued a memorandum instructing all DOD components to "ordinarily withhold lists of names and other personally identifying information of personnel... in response to requests under the FOIA." The memorandum also reemphasized the DOD's longstanding policy of refusing to disclose identifying information of American service members. 5 U.S.C. § 552(b)(3). In 2006, the DOD promulgated regulations to formalize this policy, mandating that "Army components shall ordinarily withhold lists of names (including active duty military, civilian employees, contractors, members of the National Guard and Reserves, and military dependents) and other personally identifying information" in response to FOIA requests. 32 C.F.R. § 518.13(f)(2).
The DOD's November 9, 2001 memorandum regarding American military personnel did not immediately impact WHINSEC's privacy policies. The DOD continued disclosing the names of WHINSEC students and instructors through 2004, and SOAW incorporated each new set of names into its database. SOAW's
In 2005, however, the Army's General Counsel determined that international personnel should be accorded the same right to privacy as U.S. personnel. Following this decision, the DOD ceased its annual public disclosure of WHINSEC students and instructors and began to redact the names of WHINSEC students from all publicly released documents. The DOD continued to comply with the Leahy Amendment requirements to disclose the names of WHINSEC students and instructors to Congress in a classified format. In 2010, Congress amended the National Defense Authorization Act to require the Secretary of Defense to "release to the public, upon request ... the entire name ... [of] each student and instructor at the Western Hemisphere Institute for Security Cooperation," but the statute allowed the Secretary to "waive the [disclosure] requirement... if the Secretary determines it to be in the national interest." National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1083, 123 Stat. 2190, 2482 (2009). The Secretary exercised his authority to waive disclosure in both 2009 and 2010. This disclosure requirement was not included in subsequent appropriations bills.
In March 2010, the House of Representatives Committee on Armed Services convened a hearing to receive testimony from U.S. Air Force General Douglas Fraser, Commander of the United States Southern Command, and U.S. Air Force General Victor Renuart, Jr., Commander of the North American Aerospace Defense Command. See Hearing on National Defense Authorization Act for Fiscal Year 2011 and Oversight of Previously Authorized Programs Before the H. Comm. on Armed Services, 111th Cong. 1 (2010). Among other issues, the generals addressed questions regarding a proposed amendment to the appropriations act that would authorize publication of personal information of WHINSEC students. General Fraser spoke against public disclosure of the names of WHINSEC students and urged Congress to respect the "rights and desires of the nations who provide [WHINSEC students]" by protecting their privacy. Id. at 16. He further stated that disclosure would threaten the privacy of the United States citizen instructors and staff. Id. General Renuart agreed with General Fraser regarding "the importance of maintaining the security of the individuals attending [WHINSEC], as well as the faculty." Id. In explaining the risks of disclosure, General Renuart described an event that, while not involving a WHINSEC attendee, was "an example of what can happen when information is in fact released." Id. The event involved the Mexican navy's successful raid on Arturo Beltran Leyva, the alleged leader of a Mexican drug cartel. One of the naval officers involved in the raid was killed, and his name was subsequently released to the public. As a result, his mother, wife and children were killed. According to General Renuart, the DOD could not "afford to have the information that is held in WHINSEC released because it will have that kind of effect potentially for the individuals who are extremely valuable to us." Id. at 19. Accordingly, General Renuart
On March 1, 2011, two members of SOAW, Theresa Cameranesi and Judith Liteky, sent a FOIA request to the DOD (specifically, the U.S. Army Training and Doctrine Command) for "the names, ranks, branches, countries of origin, lists of courses taken or taught, and/or dates and years of attendance of students, instructors, and guest instructors at [WHINSEC]" in fiscal years 2005 to 2010. A few weeks later, the plaintiffs amended their FOIA request to request information on the units of WHINSEC students and instructors. The DOD partially denied the request on April 5, 2011. It disclosed some responsive records but withheld the names or units of WHINSEC attendees under FOIA Exemption 6. See 5 U.S.C. § 552(b)(6). The plaintiffs filed an administrative appeal, which the DOD denied on June 8, 2011.
Following the denial of their administrative appeal, the plaintiffs filed suit in district court, claiming that DOD violated FOIA by failing to disclose the requested records. The parties filed cross-motions for summary judgment. In its motion, the DOD argued that it was entitled to withhold the identifying information regarding students and instructors under Exemption 6 to FOIA, 5 U.S.C. § 552(b)(6), and submitted two affidavits from Lee A. Rials, the Public Affairs Specialist for WHINSEC, in support. Rials's affidavits stated that "[t]here are a number of risks associated with releasing the names of WHINSEC students, instructors, and guest instructors," because these students "are directly involved in conflicts with criminal gangs, drug cartels, and other violent individuals." Rials then stated that assessments prepared by the Defense Intelligence Agency (which had not been approved for public release) "indicate that the public disclosure of WHINSEC's records may increase the threat to Latin American students from: (1) the intelligence and security apparatuses of countries hostile to U.S. interests and to U.S. partner nations in the Western Hemisphere; (2) terrorist organizations operating in the Western Hemisphere; and (3) drug trafficking organizations operating in the Western Hemisphere." As an example, Rials stated that in some countries "security personnel and their families have been attacked after being identified in the media," and referenced the 2010 testimony of General Renuart before the House Armed Services Committee. Finally, Rials stated that foreign nations participating in the WHINSEC program opposed "public disclosure of personally identifying information of students and instructors" and that such disclosure "may have adverse effects on future participation in training programs at WHINSEC."
The district court granted summary judgment in favor of the plaintiffs. It held that DOD had not established that WHINSEC students and instructors had "a substantial privacy interest in their names" because they had not been promised confidentiality and their names had been routinely provided to the public before 2004.
In the past, we employed a standard unique to FOIA cases for reviewing a
FOIA requires federal agencies to disclose records that are requested by a member of the public. 5 U.S.C. § 552. The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules... and procedures to be followed, shall make the records promptly available to any person." Id. § 552(a)(3)(A).
At issue here is Exemption 6, which provides that FOIA "does not apply to ... personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). In order to withhold information from disclosure under Exemption 6, the agency must specifically invoke the exemption and must carry the burden of proving that disclosure "would constitute a clearly unwarranted invasion of personal privacy." See Yonemoto, 686 F.3d at 693. A person requesting information protected by privacy interests "must show that the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake," and must also
When evaluating an agency's invocation of an exemption to FOIA, we "balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect." Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). Our cases establish a two-step test for balancing individual privacy rights against the public's right of access. First, we evaluate the personal privacy interest at stake to ensure "that disclosure implicates a personal privacy interest that is nontrivial or ... more than [ ] de minimis." Yonemoto, 686 F.3d at 693 (internal citation and quotation marks omitted). Second, if the agency succeeds in showing that the privacy interest at stake is nontrivial, we then "employ a balancing approach: We place the privacy interests identified at the first step on one end of the balance, and the public interest favoring disclosure on the other." Id. at 694.
We generally begin with an evaluation of the privacy interests at stake, which must be "some nontrivial privacy interest in nondisclosure." Fed. Labor Relations Auth., 510 U.S. at 501, 114 S.Ct. 1006 (emphasis omitted). A showing that the interest is more than de minimis will suffice. See Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 977 (9th Cir. 2009). "The personal privacy contemplated by Exemption 6, as well as its law-enforcement counterpart, Exemption 7(C), ... is not some limited or cramped notion of that idea." Yonemoto, 686 F.3d at 693 (internal citation and quotation marks omitted).
Disclosures that would subject individuals to possible embarrassment, harassment, or the risk of mistreatment constitute nontrivial intrusions into privacy under Exemption 6. See Dep't of State v. Ray, 502 U.S. 164, 176-77, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); see also Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025-28 (9th Cir. 2008); Painting Indus. of Haw. Mkt. Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d 1479, 1483 (9th Cir. 1994). In Ray, for instance, immigration attorneys made a FOIA request for the names of deported Haitian nationals who had been interviewed by the U.S. government to determine
We have similarly held that the potential for harassment from third parties gives rise to a cognizable privacy interest. In Forest Service Employees, we considered a public interest group's FOIA request for the names of 23 firefighters who had participated in fighting a wildfire in which two firefighters died. 524 F.3d at 1023. We concluded that the employees had nontrivial privacy interests in the disclosure of their names because Exemption 6 protected against the "potential for harassment" that "would be presented by the media, curious neighbors, and the [public interest group] itself," which might try to make unwanted contacts with the employees. Id. at 1026. In so holding, we explained that "[t]he avoidance of harassment is a cognizable privacy interest under Exemption 6," even when the harassment at issue is merely "unwanted commercial solicitations." Id. (citing Painting Indus., 26 F.3d at 1483); see also Prudential Locations LLC v. U.S. Dep't of Housing and Urban Dev., 739 F.3d 424, 432 (9th Cir. 2013). Similarly, Lahr noted that "protection from ... unwanted contact [by third parties] facilitated by disclosure of a connection to government operations and investigations is a cognizable privacy interest" under Exemption 6. 569 F.3d at 976.
An agency may carry its burden of establishing a nontrivial privacy interest by submitting affidavits showing that the requested disclosure has "[t]he potential" to result in the sorts of harassment described in our cases. Lahr, 569 F.3d at 976. Although "a threat to privacy [that] is conceivable on some generalized conjectural level is not sufficient to justify invoking Exemption 6," Yonemoto, 686 F.3d at 694, "the invasion of a personal privacy interest may be `clearly unwarranted' even when the invasion of privacy is far from a certainty," Prudential Locations, 739 F.3d at 432. The Supreme Court has relied on an agency's reasonable assessment that disclosure "could subject" the affected individuals "to possible" invasion of privacy, Ray, 502 U.S. at 176 & n.12, 112 S.Ct. 541 (emphases added), and we have regularly done the same, see Prudential Locations, 739 F.3d at 432 (disclosure "would likely" result in an invasion of privacy); Lahr, 569 F.3d at 977 (disclosure "could" result in an invasion of privacy); Forest Serv. Emps., 524 F.3d at 1026 (disclosure "may" result in an invasion of privacy). Particularly in cases involving foreign policy and national security issues, "any affidavit or other agency statement of threatened harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm." ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (internal quotation marks omitted). Therefore, an agency carries its burden if the affidavit provides a justification for invoking a FOIA exemption that "appears logical or plausible." Id. (internal quotation marks omitted).
If the agency succeeds in showing a nontrivial privacy interest at step one, we
For purposes of FOIA, the pertinent public interest is the interest in understanding "the operations or activities of the government" and in monitoring an agency's action. Forest Serv. Emps., 524 F.3d at 1025-27. Said otherwise, "the only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would she[d] light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." Yonemoto, 686 F.3d at 694 (quoting Bibles v. Or. Nat. Desert Assn., 519 U.S. 355, 355-56, 117 S.Ct. 795, 136 L.Ed.2d 825 (1997) (per curiam)). We do not give weight to the FOIA requester's personal interest in obtaining information "[b]ecause Congress clearly intended the FOIA to give any member of the public as much right to disclosure as one with a special interest." Fed. Labor Relations Auth., 510 U.S. at 496, 114 S.Ct. 1006 (internal quotation marks omitted).
In order to determine the weight of the public interest at issue, we must evaluate whether the person requesting the information has shown "sufficient reason for the disclosure." Favish, 541 U.S. at 172, 124 S.Ct. 1570. Favish developed a standard for determining whether a requester has shown such a reason in cases where the requester is seeking information "to show that responsible officials acted negligently or otherwise improperly in the performance of their duties." Id. at 174, 124 S.Ct. 1570. Although noting that there is generally a "presumption of legitimacy accorded to the Government's official conduct," and "clear evidence is usually required to displace" that presumption, Favish adopted a less stringent standard in the FOIA context: "the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred." Id. Although it is easier for a requester to meet this "reasonable belief" standard than a "clear evidence" standard, a court must still "insist on a meaningful evidentiary showing" by the requester because "[a]llegations of government misconduct are easy to allege and hard to disprove." Id. at 175, 124 S.Ct. 1570. "Only when the FOIA requester has produced evidence sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court to balance against the cognizable privacy interests in the requested records." Id. at 174-75, 124 S.Ct. 1570.
We now apply this two-step test to determine whether disclosing the names of foreign WHINSEC students and instructors "would constitute a clearly unwarranted invasion of personal privacy" for purposes of Exemption 6. 5 U.S.C. § 552(b)(6).
We first consider whether disclosure of the names and units of foreign WHINSEC students and instructors implicates a nontrivial privacy interest. See Yonemoto, 686 F.3d at 693. We give little weight to the district court's ruling that DOD failed to establish that WHINSEC students and instructors had "a substantial privacy interest in their names and military units" because the district court applied the wrong legal standard; it should have considered whether nontrivial privacy interests, rather than substantial privacy interests, were at stake.
Here, the evidence submitted by the DOD demonstrated that disclosure of the identities of foreign WHINSEC students and instructors could give rise to harassment, stigma, or violence as a result of their association with the United States — exactly the sorts of risks that courts have recognized as nontrivial in previous cases. See Ray, 502 U.S. at 176-77, 112 S.Ct. 541; Lahr, 569 F.3d at 975-76; Forest Serv. Emps., 524 F.3d at 1025-28; Painting Indus., 26 F.3d at 1483. The DOD submitted sufficient evidence to substantiate this nontrivial risk, see Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987), including Rials's affidavits and the testimony of two United States generals.
The plaintiffs argue that the evidence of risks faced by the WHINSEC students and instructors should be disregarded as overly speculative. We disagree. We have never held that an agency must document that harassment or mistreatment have happened in the past or will happen in the future; rather, the agency must merely establish that disclosure would result in a "potential for harassment." Forest Serv. Emps., 524 F.3d at 1026. Here, the government's affidavits set forth its conclusion
The district court also erred in holding that the WHINSEC students and instructors lacked a nontrivial privacy interest because the DOD had not promised confidentiality. As a legal matter, "an assurance of confidentiality from the government" is not a necessary condition "for the existence of a cognizable personal privacy interest under Exemption 6." Prudential Locations, 739 F.3d at 431-32. Moreover, the court's conclusion that WHINSEC students and instructors do not have a reasonable expectation of privacy is not supported by the record. The DOD has not disclosed the names of WHINSEC students since 2004 and likewise redacts the names of WHINSEC students from public documents. Any disclosures are now made only with the consent of the students or the sending nation. A majority of foreign countries that send students to WHINSEC rely on the DOD's current disclosure practices and oppose public disclosure of the identities of their students and instructors. Further, the DOD exercised its discretion to ensure that no disclosures would be made in response to Congress's requirement that the DOD disclose the names of WHINSEC students in 2009 and 2010, and Congress chose not to reenact this requirement. Under these circumstances, students and instructors at WHINSEC could reasonably conclude that their identities would not be disclosed without their permission.
Accordingly, we conclude that the affidavits and other evidence submitted by the DOD are sufficient to carry the DOD's burden to establish that disclosure of the requested information gives rise to a nontrivial risk of harassment and mistreatment.
At step two, we balance the privacy interests identified at the first step against the public interest favoring disclosure. In order to conduct this balancing, we begin by identifying the public interest at issue, focusing on the "only relevant public interest under Exemption 6," which is "the extent to which the information sought would she[d] light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." Forest Serv. Emps., 524 F.3d at 1027 (internal quotation marks omitted).
The plaintiffs argue that their request for the identities of the WHINSEC students and instructors bears directly on two statutory duties of the DOD. First, the DOD is required to deny assistance, including WHINSEC training, to any "unit
Plaintiffs contend that obtaining the identities of the WHINSEC students and instructors will allow them to discover deficiencies in the vetting process, and they submit an affidavit identifying two instances where the Secretary of State mistakenly allowed individuals who had allegedly participated in human rights abuses to attend the school.
Second, plaintiffs contend that they can use the names of WHINSEC students to track their conduct after they have received their training. According to plaintiffs, if WHINSEC attendees violate human rights once they return to their service in foreign governments, it shows that WHINSEC human rights training is not effective. We disagree. While Congress required WHINSEC to provide mandatory instruction on human rights,
Having defined the public interest at stake, we now weigh it against the privacy interest of the WHINSEC students and instructors. DOD has presented evidence that disclosing the names of WHINSEC students and instructors would put them at risk of harassment, retaliation, or even death. Where serious privacy risks are present on one side of the balance, strong public interests are required in order to tip the scales toward disclosure. Forest Serv. Emps., 524 F.3d at 1027. Because any incremental value stemming from the disclosure of the identities of WHINSEC students and instructors is small, the public interest in this case is not significant compared to the risk of disclosure. We therefore conclude that disclosure would give rise to a "clearly unwarranted" invasion of privacy and that the information requested by plaintiffs is exempt from disclosure under Exemption 6 of FOIA.
The dissent disagrees with our application of the FOIA balancing test because it is not persuaded by the government's reasons for instituting a new policy to withhold the names of students and instructors in 2005. The dissent argues that because the DOD disclosed the names of SOA and WHINSEC students and instructors until 2004, it must "provide a satisfactory explanation" for its change in policy in order to invoke Exemption 6. Dissent at 776.
The dissent's analysis is wrong for several reasons. Most important, FOIA does not impose a duty on the government to provide a satisfactory explanation of a change in its policy; rather, it merely requires us to decide on the record before us whether disclosure of the requested information would give rise to a "clearly unwarranted" invasion of privacy. 5 U.S.C. § 552(b)(6). Here, the government's assertion that disclosure would do so is both logical and plausible. Applying simple common sense, there is no question that there
But even if we were to evaluate the government's explanation of its policy decision, we disagree with the dissent's view that the government did "not provide a satisfactory explanation." Dissent at 776. The government explained that the DOD circulated an internal memorandum changing its policies regarding disclosure of the names of defense personnel two months after the terrorist attacks of September 11, 2001, and realized that international personnel should be accorded the same protection some years later. In our view, a government bureaucracy's failure to demonstrate speed and efficiency in applying a policy issued in one context to a related but different context does not raise the inference that the government is hiding the true reasons for that policy. Indeed, it took the DOD five years to formalize its policy regarding American military personnel after it circulated its informal memo. See 32 C.F.R. § 518.13(f)(2); see also The Freedom of Information Act Program, 71 Fed. Reg. 9222, 9232 (Feb. 22, 2006).
Because disclosing the names of WHINSEC students and instructors would give rise to a "clearly unwarranted" invasion of privacy, those names are therefore exempt from disclosure under Exemption 6 of FOIA.
WATFORD, Circuit Judge, dissenting:
The Department of Defense has shown that the Western Hemisphere Institute for Security Cooperation's foreign students and instructors have a non-trivial privacy interest in keeping their identities secret. Disclosing their names to the public would reveal their affiliation with the Institute, which might expose them to the risk of harassment or violence when they return to their home countries. But the question remains under Exemption 6 of the Freedom of Information Act (FOIA) whether that invasion of privacy would be "clearly unwarranted." 5 U.S.C. § 552(b)(6). To answer that question, we must balance the privacy interests at stake against the public interest in disclosure protected by FOIA — namely, "the citizens' right to be informed about `what their government is up to,'" which encompasses "[o]fficial information that sheds light on an agency's performance of its statutory duties." Department
Let's start with the public interest in disclosure, which requires a little bit of background. The Institute is operated by the Army at Fort Benning, Georgia. It was established in 2001, but it is actually a continuation of the School of the Americas (SOA), which opened its doors under a different name in 1946 and moved to Fort Benning in the 1980s. SOA became the subject of considerable controversy after the 1989 massacre of six Jesuit priests in El Salvador during that country's civil war. It turned out that 19 of the soldiers involved in the massacre had received training at SOA.
That incident was not an anomaly. After the Army began releasing the names of former SOA students and instructors in 1994 as a result of FOIA requests, human rights activists linked the school's attendees to a host of notorious crimes. A few examples: SOA graduates were implicated in additional atrocities committed during the civil war in El Salvador, including the assassination of Archbishop Oscar Romero, the execution of four American churchwomen, and the massacre of hundreds of civilians in the village of El Mozote. A Guatemalan colonel who attended SOA was accused of murdering, six months after graduating, an American innkeeper in Guatemala in 1990. Six Peruvian SOA graduates were connected to the killings of nine students and a professor in Peru in 1992. In addition, SOA counted among its alumni Salvadoran death-squad leader Roberto D'Aubuisson; Bolivian strongman Hugo Banzer Suarez; Panamanian dictator and convicted drug-trafficker Manuel Noriega; Argentine dictators and "dirty war" culprits Roberto Viola and Leopoldo Galtieri; and Ecuador's Guillermo Rodriguez and Peru's Juan Velasco Alvarado, both of whom toppled democratically elected governments. See H.R. 732, 106th Cong. (1999); Richard F. Grimmett & Mark P. Sullivan, Congressional Research Service, U.S. Army School of the Americas: Background and Congressional Concerns 3-4 (2001); Eric Schmitt, School for Assassins, or Aid to Latin Democracy?, N.Y. Times, Apr. 3, 1995, at A8.
The Army cautioned, rightly, that these incidents were not representative of the vast majority of SOA attendees, although it did not disclaim them entirely. A spokesman for the school responded to the criticism in 1995 by observing that "[o]ut of 59,000 students who have graduated from a variety of programs, less than 300 have been cited for human rights violations like torture and murder, and less than 50 have been convicted of anything." Schmitt, School for Assassins, at A8. However, the controversy escalated in 1996 when the Pentagon released excerpts of training manuals previously used at SOA that provided instruction on torturing and executing insurgents. See Dana Priest, U.S. Instructed Latins on Executions, Torture, Wash. Post, Sept. 21, 1996, at A1.
In 1997, Congress began imposing legislative restrictions on the school's operations. It enacted what became known as the Leahy Amendment, which barred the military from assisting any foreign security unit credibly believed to have committed human rights abuses unless that unit's government had taken steps to bring the responsible parties to justice. See Foreign Operations, Export Financing, and Related
In response to this congressional action, the Army pledged curricular changes and increased civilian participation at the school, and these proposed changes succeeded in staving off the school's closure. In 2000, rather than close SOA, Congress decided to impose reform measures. Congress required the school to include instruction for all students on respect for human rights and principles of democratic governance, and mandated oversight of the school by a Board of Visitors composed primarily of civilians and civilian-designees. See National Defense Authorization Act for Fiscal Year 2001, Pub. L. No. 106-398, § 911, 114 Stat. 1654, 1654A-226-28 (2000) (codified at 10 U.S.C. § 2166). To avoid association with SOA's controversial past, it was thought best to rename the school going forward. Beginning in early 2001, the school began operating under its new name: the Western Hemisphere Institute for Security Cooperation.
That background is relevant to understanding the strength of the public interest in disclosure involved here. Disclosing the names of the Institute's foreign students and instructors is necessary to allow citizens to remain informed about "what their government is up to." For example, without the names, the public has no way of determining whether the issues that led to the school's near closure have been adequately addressed. Is the Army in fact barring attendance of foreign military and law-enforcement personnel who belong to units with records of human rights abuses? Or are such individuals continuing to receive training at the Institute at taxpayer expense? Have the new curricular requirements been effective in instilling the importance of respect for human rights and democratic values? Or are students trained at the Institute continuing to commit human rights abuses upon returning to their home countries? These are not idle questions given the school's checkered history. Because the Institute remained in operation only after Congress mandated reforms designed to fix the problems that formerly plagued the school, the public has a strong ongoing interest in assessing whether those measures are working.
Beyond advancing this more general interest, disclosing the names of the Institute's foreign students and instructors would also shed light on how well the Departments of Defense and State are performing their statutory duties. See Reporters Committee, 489 U.S. at 773, 109 S.Ct. 1468. Under the current version of the Leahy Amendment, the government may not train, equip, or otherwise assist any "unit" of a foreign security force if the unit has committed "a gross violation of human rights." 10 U.S.C. § 2249e(a)(1); 22 U.S.C. § 2378d(a). This restriction imposes specific duties upon the Departments of Defense and State. The Defense Department
The strength of the public interest in disclosure is what distinguishes this case from the cases on which the Department of Defense relies to justify its invocation of Exemption 6. In those cases, the courts struck the balance in favor of protecting privacy interests because the public interest in disclosure was either non-existent or exceptionally weak.
In the first set of cases, there was simply no cognizable public interest in disclosure at all. See Bibles v. Oregon Natural Desert Association, 519 U.S. 355, 355-56, 117 S.Ct. 795, 136 L.Ed.2d 825 (1997) (per curiam); Department of Defense v. FLRA, 510 U.S. 487, 497-98, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994); Reporters Committee, 489 U.S. at 774-75, 109 S.Ct. 1468. The requested information revealed "little or nothing" about the relevant government agencies or their activities, and therefore could not "appreciably further the citizens' right to be informed about what their government is up to." FLRA, 510 U.S. at 497, 114 S.Ct. 1006 (internal quotation marks omitted). For the reasons just explained, the same cannot be said about the information requested by the plaintiffs in this case.
In the second set of cases, the courts held that although a cognizable public interest in disclosure existed, it was adequately served by the wealth of information the government had already made publicly available. See Department of State v. Ray, 502 U.S. 164, 178, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); Prudential Locations LLC v. HUD, 739 F.3d 424, 433 (9th Cir. 2013) (per curiam); Forest Service Employees for Environmental Ethics v. U.S. Forest Service, 524 F.3d 1021, 1028 (9th Cir. 2008). In those cases, obtaining the additional information sought by the requesters (the names of particular individuals) would not have shed any light on the operations or activities of the government. Here, by contrast, without obtaining the foreign students' and instructors' names, the public cannot exercise its right to remain informed about the Army's operation of the Institute or assess how well the Departments of State and Defense are performing their statutory duties.
The majority asserts that annual reports produced by the Institute's Board of Visitors, as well as those issued by the Department of Defense itself, are adequate for these purposes, see Maj. op. at 768-69, 768-69, 769, but in truth the reports are utterly useless in this regard. They merely provide general conclusions about the Army's operation of the Institute and the government's vetting of its attendees, not the underlying information necessary to determine whether those conclusions are
Finally, in the last set of cases, the requesters alleged that, in the course of investigating an isolated incident, the government had either engaged in a cover-up or conducted an insufficiently thorough investigation. See National Archives and Records Administration v. Favish, 541 U.S. 157, 160-61, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (requester alleged that Vince Foster's death was not actually a suicide); Lahr v. National Transportation Safety Board, 569 F.3d 964, 969 (9th Cir. 2009) (requester alleged that TWA Flight 800 did not crash; it was shot down by the military); Lane v. Department of the Interior, 523 F.3d 1128, 1131-33 (9th Cir. 2008) (requester alleged that her former supervisor had in fact threatened a fellow employee with a gun, contrary to the conclusion reached by investigators). In that narrow context, when the asserted public interest rests on showing that "the investigative agency or other responsible officials acted negligently or otherwise improperly in the performance of their duties," the requester must produce at least some evidence of government impropriety to substantiate the public interest claim. Favish, 541 U.S. at 173-74, 124 S.Ct. 1570.
The majority's reliance on this last set of cases is misplaced for two reasons. First, the standard established in those cases does not apply here. The plaintiffs are not seeking materials related to the alleged mishandling of an investigation into one isolated incident, the only context in which the Supreme Court and our court have applied the Favish standard. Rather, they are seeking information relevant to assessing government activities of a programmatic nature, a context in which the Supreme Court has held that a strong public interest in disclosure exists without any showing of government impropriety. See Department of the Air Force v. Rose, 425 U.S. 352, 368, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). But even under the majority's reading of Favish, the standard established in that case does not apply here because the plaintiffs are not merely seeking "information about whether an agency properly performed a statutory duty." Maj. op. at 766. They are also seeking information necessary to determine whether students who attend the Institute commit human rights abuses or other misconduct after returning to their home countries. As the majority itself acknowledges, that interest is in no way tied to the narrower interest in determining whether "responsible officials acted negligently or otherwise improperly in the performance of their duties." Maj. op. at 766 n.17 (quoting Favish, 541 U.S. at 174, 124 S.Ct. 1570), ____.
Second, even if the plaintiffs were required under Favish to make a threshold evidentiary showing, they have done so. The plaintiffs would merely need to establish "more than a bare suspicion" of impropriety — in other words, "evidence that would warrant a belief by a reasonable
What I have shown thus far, I hope, is that the public interest in disclosure is much stronger than the majority is willing to allow. But what about the privacy interests at stake? Are they strong enough to outweigh the public interest in disclosure? That depends on how grave we believe the risk of harm to the foreign students and instructors might be if their names are disclosed. Ordinarily, I would be inclined to give considerable deference to the judgment of military officials about the gravity of the risks posed by disclosure of potentially sensitive information. The reason I think we should be more skeptical here is that the military itself determined for a decade, from 1994 to 2004, that the risks of disclosure were not sufficiently compelling to justify withholding the names under Exemption 6. During this period, the Army disclosed not only the names of all foreign students and instructors who attended the Institute each year, but also the names of all foreign students and instructors who had attended the Institute and its predecessor dating back to 1946 — some 60,000 names in all.
It would be one thing if the Department of Defense had informed us that its risk assessment changed in 2005 because a foreign student or instructor had been targeted for harassment or violence due to his affiliation with the Institute. That would make it easy to understand the Department's about-face. But here, the Defense Department pointed to no such event, and indeed, so far as the record discloses, none of the 60,000 individuals whose names have been publicly released has ever been the target of harassment or violence based on their having attended the Institute or its predecessor.
The Department of Defense is certainly correct in arguing that it is not required to show some past incident of harm in order to invoke Exemption 6 as a basis for non-disclosure.
The declarations submitted by the Department of Defense do not provide a satisfactory explanation (or frankly any explanation at all). The Department provided just two short declarations from a public affairs staffer at the Institute named Lee Rials. Attached to one of his declarations is a transcript of testimony given by two generals at a 2010 congressional hearing devoted to other subjects during which the generals answered a single question about the Institute. (This is the congressional testimony to which the majority refers. See Maj. op. at 760-61.) The Rials declarations assert, based on "Defense Intelligence Agency assessments" which the government chose not to submit, that disclosure of the foreign students' and instructors' names would increase the risk of retaliation from three sources: (1) "the intelligence and security apparatuses of countries hostile to U.S. interests"; (2) "terrorist organizations operating in the Western Hemisphere"; and (3) "drug trafficking organizations operating in the Western Hemisphere." But the risks of retaliation from these sources were undoubtedly present during the 1994-2004 time period as well. They did not just pop up beginning in 2005. Rials' declarations offer no explanation for why the military has determined that those risks had increased sufficiently by 2005 to warrant striking a different balance between privacy interests and the public interest in disclosure.
At oral argument, the government's lawyer asserted that the terrorist attacks of September 11, 2001, caused the Department of Defense to reassess its prior policy of disclosing the names. The main problem with that explanation: It appears nowhere in the declarations the government submitted. Neither the Rials declarations nor the testimony from the two generals mentions the September 11 attacks. The government did submit a copy of a November 2001 Defense Department memo that announced, in light of the recent attacks, a new policy with respect to "DoD personnel" of withholding "lists of names and other personally identifying information." However, Rials did not cite this memo in explaining the Department of Defense's 2005 decision to stop disclosing the names of the Institute's foreign students and instructors, and the government failed to offer any other declaration — let alone one from a military officer — explaining the memo's role in the 2005 decision-making process.
The link between the November 2001 memo regarding "DoD personnel" and the Army's 2005 decision to stop disclosing the names of foreign military personnel attending the Institute is not so obvious that we can assume a connection without any supporting evidence. For one thing, it is not by any means clear that the memo was intended to apply to foreign students and
Under FOIA, Congress has established a "strong presumption in favor of disclosure," and it has placed "the burden on the agency to justify the withholding of any requested documents." Ray, 502 U.S. at 173, 112 S.Ct. 541. Had the government provided a sturdier evidentiary foundation for its decision to withhold the requested information, I would have readily agreed with my colleagues' resolution of this appeal. On this record, though, I think we are compelled to reject the government's invocation of Exemption 6. I would therefore affirm the district court's decision.
§ 570, 111 Stat. at 2429.
