Royce C. Lamberth, United States District Judge.
Before the Court is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, challenging the withholding of a single email message by the United States Patent and Trademark Office ("PTO"). The email at-issue was sent by one PTO patent examiner to another using PTO's email system, in reply to the receiving examiner's initial email concerning a patent applicant, plaintiff Gilbert P. Hyatt, whose patent applications the two examiners were (and perhaps still are) responsible for examining. The PTO nevertheless denied Mr. Hyatt's request for production of this email message on the ground that it is not an agency record, or, alternatively, that it is exempt from disclosure under FOIA's Exemption 6.
Mr. Hyatt is a prolific inventor who has received more than seventy issued patents and has pending at various stages of prosecution and appeal nearly 400 patent applications before the PTO, the federal agency responsible for examining patent applications and for granting U.S. patents. 35 U.S.C. § 1, et seq. Beginning no later than 2005, Mr. Hyatt has been litigating several of his patent applications before this Court pursuant to 35 U.S.C. § 145. See, e.g., 05-cv-2310; 09-cv-1864; 09-cv-1869; 09-CV-1872.
Having considered Mr. Hyatt's Motion for Summary Judgment, ECF no. 3, the PTO's opposition thereto and Cross-Motion for Summary Judgment, ECF nos. 15 and 16, the related reply briefs, the disputed document itself, see ECF no. 22,
After the conclusion of summary judgment proceedings in the above-cited § 145 actions, which resulted in the necessity of holding trials on the merits in three of those cases,
Despite producing the Briney email in response to Mr. Hyatt's document requests in the patent litigation before this Court, the PTO did not produce Ms. Khuu's reply (the "Khuu email"). Nor did the PTO identify the Khuu email as potentially responsive to Mr. Hyatt's discovery requests; the first Mr. Hyatt learned of its existence was during Mr. Briney's deposition. The PTO subsequently declined to produce the Khuu email to Mr. Hyatt, and on October 4, 2017, Mr. Hyatt moved in the four § 145 actions to compel its production. ECF no. 182 (05-2310); ECF no. 178 (09-1864); ECF no. 182 (09-1869); ECF no. 180 (09-1872). The PTO opposed Mr. Hyatt's motion on the ground that the Khuu email was outside of the scope of discovery authorized by this Court. In its opposition, the PTO characterized the Khuu Email as, "An e-mail between two USPTO examiners reflecting their mental impressions in the context of Mr. Hyatt's divorce litigation." ECF no. 185 (05-2310);
On November 6, 2017, Mr. Hyatt filed a FOIA request for the Khuu Email; the PTO acknowledged receipt of that request on November 9, 2017. On December 7, 2017, the PTO denied the FOIA request, stating that it had "reviewed the requested record," but the Khuu Email "is not an agency record and so there is no agency record responsive to your request." It contained no additional reasoning or explanation for denying the FOIA request.
Mr. Hyatt appealed the denial on December 13, 2017. On December 26, 2017, the PTO wrote to acknowledge its receipt of Mr. Hyatt's appeal, and subsequently denied that appeal on January 19, 2018. The PTO's appeal denial took note that the Khuu Email "was created by an Agency employee and is located within the Agency's email system" and that its sender "may not have had an expectation of privacy" in emails sent through the PTO's email system. But the PTO nevertheless concluded anew that the Khuu Email was not an agency record subject to FOIA because "it was not used ... in conducting official Agency business." The Appeal denial states that it is the PTO's final decision and is subject to judicial review.
Mr. Hyatt brought his request to this Court on February 1, 2018, and on the same day moved for summary judgement as to PTO's obligation to produce the requested email. ECF no. 3. At the same time, Mr. Hyatt also filed a Motion to Compel the Khuu email for ex parte, in camera review, arguing, "in camera review promises to substantially advance judicial and party economy." ECF no. 4. PTO opposed Hyatt's motion and filed its own cross-motion for summary judgment, as well as its opposition to the Motion to Compel, on April 9, 2018. ECF nos. 15, 16, 17. Each respective motion ripened after the appropriate subsequent opposition and reply briefs were filed.
On July 23, 2018, this Court granted Mr. Hyatt's Motion to Compel, ECF no. 22, finding that not to do so would result in a waste of judicial and party resources. Id. at 3. Later that day, Mr. Hyatt filed a document styled as a "notice of supplemental authority," ECF no. 21,
On August 2, 2018, the government complied with the Court's Order on Hyatt's Motion to Compel, delivering to the Court a hard-copy of the single page in-dispute here. The Court has reviewed the twenty-eight word email and, for the reasons articulated below, finds it to be releasable pursuant to Mr. Hyatt's FOIA request.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
As applied in a FOIA case, an agency defendant may be entitled to summary judgment if it demonstrates that 1) no material facts are in dispute, 2) it has conducted an adequate search for responsive records, and 3) each responsive record that it has located has either been produced to the plaintiff or is exempt from disclosure. Miller v. U.S. Dep't of Justice, 872 F.Supp.2d 12, 18 (D.D.C. 2012) (citing Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)). Agencies can meet their burden on FOIA matters through a "reasonably detailed affidavit," see Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990), which is to be "accorded a presumption of good faith." See Mobley v. C.I.A., 806 F.3d 568, 580-81 (D.C. Cir. 2015), quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
Courts have long recognized that not all records that happen to reside in government coffers are "agency records" for FOIA purposes. The Supreme Court in U.S. Department of Justice v. Tax Analysts established two factors to determine whether a document requested under FOIA is an "agency record." 492 U.S. 136, 144-45, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). First, the agency must either "create or obtain" the document. Id. at 144-45, 109 S.Ct. 2841. Second, the agency must be "in control of the requested materials at the time the FOIA request is made." Id. at 145, 109 S.Ct. 2841. Whether an agency has "control" over a record depends upon: "(1) the intent of the document's creator to retain or relinquish control over the record[ ]; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record systems or files." Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (quoting Tax Analysts v. DOJ, 845 F.2d 1060, 1069 (D.C. Cir. 1988)).
As relevant here, "agency records" are distinguishable from "personal records" that might be physically maintained by agency employees in their workspace, but that are nevertheless not subject to release under FOIA. Determining that an item is a personal record involves "the totality of the circumstances surrounding the creation, maintenance, and use" of the record. Bureau of Nat'l Affairs, Inc. v. DOJ, 742 F.2d 1484, 1492 (D.C. Cir. 1984).
Exemption 6 protects from FOIA disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.0 § 552(b)(6). The exemption thus has two prongs, and requires an agency to prove both the nature of the files and that the files' disclosure "would constitute a clearly unwarranted invasion of personal privacy." Dep't of State v. Washington Post Co., 456 U.S. 595, 599-603, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). The first criterion-does not require
"Under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act," Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002), and many years of consistent precedent makes clear that information about federal employees generally does not qualify for protection. See, e.g., Arieff v. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983); Aguirre v. SEC, 551 F.Supp.2d 33, 54 (D.D.C. 2008) ("Correspondence does not become personal solely because it identifies government employees."). Although personal information about a particular individual can trigger Exemption 6, that information normally falls into specific categories that typically includes "place of birth, date of birth, date of marriage, employment history, and comparable data." Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989). In examining an Exemption 6 withholding, the court must balance the privacy interest at stake against the public's interest in disclosure. Fund for Constitutional Gov't v. National Archives and Records Serv., 656 F.2d 856, 862 (D.C. Cir. 1981).
Hundreds of pages of court filings have been spent litigating the nature of a single email. As happens sometimes in FOIA litigation, trees have been felled over the protection of a single page. There is a silver-lining in this particular matter, however: the Court can dispose of it relatively quickly.
Ultimately, the PTO's arguments that the Khuu email 1) is not an agency record, and 2) even if it is, may properly be withheld under Exemption 6, are both based upon the underlying premise that the substance of Ms. Khuu's email is purely personal. Where the agency's arguments on the two grounds diverge is on matters of function and substance — if the email was not actually used in the normal course of agency business, PTO argues, it cannot be considered an agency record; as to Exemption 6, PTO argues that Ms. Khuu included in her email information so personally sensitive that its disclosure would constitute a clearly unwarranted invasion of her personal privacy. Both arguments fail; the second one, miserably so.
To qualify as an agency record, the Khuu email must have been either created or obtained by the PTO, and the PTO must have had control of it at the time Mr. Hyatt made his FOIA request. See Tax Analysts, 492 U.S. at 145, 109 S.Ct. 2841. There is no doubt that the Khuu email was "obtained by" the PTO, see also ECF no. 15-1 at *4; the issue here is whether the agency has "control" of the email for FOIA purposes.
Like so much of Mr. Hyatt's litigation concerning other matters, this case
The Khuu email is part of a brief email exchange between two agency employees, on an agency system, inspired by an article concerning the particular individual whose applications these examiners were dedicated, full-time, to examining. The PTO stakes its case heavily on the notion that an email between agency employees on an agency server is not necessarily an agency record, and, more importantly, the agency did not "rely upon" Khuu's email in any formally documented way that would unquestionably make it an agency record. PTO argues, "Neither Ms. Khuu nor Mr. Briney used or intended to use the document in the examination of patents." See, e.g., ECF no. 15-4 at *5. This very literal but vacuous recitation of a judicially-created factor belies the point, purpose, and implication of the underlying FOIA request. In this vein, the PTO's heavy reliance on Judicial Watch v. FHFA, 646 F.3d 924 (D.C. Cir. 2011), is misplaced. The decisive factor in that case was that, "The public cannot learn anything about agency decisionmaking from a document the agency neither created nor consulted, and requiring disclosure under these circumstances would do nothing to further FOIA's purpose of `open[ing] agency action to the light of public scrutiny.'" Id. at 927-28 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Here, however, the Court has before it a FOIA request concerning what the requested document may reflect about how examination of a large group of patents has proceeded, and Khuu clearly expresses an opinion about a character at the center of her examination portfolio, to a colleague who has that same portfolio.
Here, too, is where PTO's reliance on Bureau of National Affairs, Inc. v. U.S. Dep't of Justice (BNA), 742 F.2d 1484 (D.C. Cir. 1984), for the proposition that documents merely "relat[ing] to" an employee's duties, id. at 1493, fails. First, the instant facts present a situation far different from the "personal diary" hypothetical BNA uses in the passages PTO cites. Second, the Briney/Khuu exchange arguably does reflect substance related to, and therefore sheds light on the examination of Mr. Hyatt's applications. The document at-issue in this matter relates to these examiners'
That the emails were between patent examiners whose jobs are strictly to review patent applications for compliance with statutory mandates is likewise unavailing. See ECF no. 15-1 at 6 (stating the PTO's argument that "The examination of patents is governed by law and regulation and specifically does not permit patent examiners to consider their personal feelings or opinions in conducting their duties. The use of the requested document solely for personal reasons should be dispositive here."
Contrary to the PTO's assertion, the fact that the creation and reading of the email thread may have been outside the scope of the sending and receiving examiners' employment with the agency is not dispositive as to whether the email is an agency record. Such a rule would, for example, hinder a FOIA requester's ability to uncover fraud, waste, or abuse in government agencies. Cf. McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182, 1194 (D.C. Cir. 2004) (Garland, J., dissenting). Indeed, the universally recognized purpose of FOIA is to make government more transparent, see, e.g., Judicial Watch, Inc. v. United States Dep't of Homeland Sec., 895 F.3d 770, 783 (D.C. Cir. 2018); it is in light of that purpose that the courts have formulated their rulings and tests. And the government would be hard-pressed to find any other instance where an agency has created a defined, formalized, structured reporting unit dedicated chiefly to adjudicating the
Finally, that the email was "never placed in any official Agency files," ECF no. 15-1 at 5, is of little relevance here. On its face, the government's argument seems to suggest that, for an email to be releasable under FOIA, an employee must go out of his way to save it in a place other than his email inbox. The Court trusts that the government is not actually making that argument, as doing so would be rather preposterous in light of its recent release of more than 35,000 emails subject to FOIA litigation, even though many of them were stored on a private server. See https://foia.state.gov/Search/Results.aspx?collection=Clinton_Email. Nevertheless, the PTO offers the Court neither a limiting principle to its argument, nor a reasonable test for the Court to apply in this case as to the scope and bounds of what should be considered "official Agency files," either generally or with respect to the examination of Mr. Hyatt's patent applications. Indeed, that it merely "makes sense" that there would be personal correspondence in an employee's email box, ECF no. 15-1 at 5, does little here, where the PTO's pointing to its "policy permitting limited personal use of government resources, including email," id., effectively operates as an admission that the majority of the emails in an employee's inbox are (or at least ought to be) agency records.
To withhold the Khuu email under Exemption 6, PTO must show that 1) the information contained in the email "appl[ies] to a particular individual" and is "personal" in nature, N. Y. Times I, 852 F.2d at 606, and 2) that the files' disclosure "would constitute a clearly unwarranted invasion of personal privacy," as weighed against "the public's right to government information." Washington Post, 456 U.S. at 599-603, 102 S.Ct. 1957.
The threshold for meeting the first prong is "minimal," and this Circuit has unambiguously held that, when there is non-lexical information in a government record that can be traced to an individual (such as a single author), the government is entitled an opportunity to satisfy the second prong. See N. Y. Times Co. v. Nat'l Aeronautics & Space Admin. (N. Y. Times II), 920 F.2d 1002, 1006-1009 (D.C. Cir. 1990) (en banc). Although a hypothetically different FOIA request for any replies to the Briney email might have allowed PTO an opportunity to redact Ms. Khuu's name from the email, that is not this case. Because we know the identity of the author of the specific document at-issue, the law of this Circuit requires this Court to find that the email is a record that applies "to a particular individual."
First, as to the privacy interest: for the proposition that the author of a document has "a personal privacy interest in the thoughts and beliefs contained" in his communications, the PTO points to a single unreported case from the District of Hawaii only once cited to by another court of this Circuit, and then only on easily distinguishable facts. The cited case, Yonemoto v. Dep't of Veterans Affairs, Civ. No. 06378, 2007 WL 1310165 (D.Haw. May 2, 2007), arose from an agency employee's FOIA request for emails between co-workers that referred to the FOIA plaintiff. The court in Yonemoto found the emails' authors to have protectable privacy interests in their personal feelings about Yonemoto, who presumably was a colleague of theirs, over whom the emails' authors had no supervisory authority.
Although the Court is confident that Ms. Khuu, like the PTO, would rather her email not be released, she does not have a "strong privacy interest" tied to its contents. ECF no. 15-1 at 12. As mentioned above, Ms. Khuu does not give an opinion about divorce or other matter personal to her in the email; rather, she relates an opinion about her charge. Further, it is worth repeating that Mr. Hyatt is not merely one of many patent applicants whose purported inventions Ms. Khuu is reviewing — he is the full-time subject of her job.
The PTO also points to no grounds to substantiate its assertion that "Ms. Khuu [will] be subjected to annoyance or harassment, by the Plaintiff or others," and is in fact misleading when it further surmises that any such harassment would be "based on her personal opinions about a sensitive topic such as divorce," which her email is not, in fact, about. See ECF no. 15-1 at 11. Further, that Ms. Khuu might be subjected to a deposition in future litigation is simply not the sort of "annoyance or harassment" with which the D.C. Circuit was concerned when discussing the topic in Lesar v. U.S. Dep't of Justice, 636 F.2d 472, 488 (D.C. Cir. 1980), which the PTO cites in support. The Court in Lesar was concerned with protecting the identities of law enforcement agents involved in investigations related to Dr. Martin Luther King, Jr., a scenario readily distinguishable from this one.
Second, there is a cognizable public interest associated with the release of this email. Although the PTO argues the email "does not contribute in any significant way to the public understanding of the operations or activities of the USPTO," ECF no.
The PTO also argues that Mr. Hyatt's FOIA request is merely a function of his own private interests as a litigant against the government, and thus does not fit the purpose for which FOIA was enacted. First, "whether an invasion of privacy is warranted cannot turn on the purposes for which the request was made." Reporters Comm., 489 U.S. at 771, 109 S.Ct. 1468. Further, although Mr. Hyatt's FOIA request is undoubtedly not wholly separate from his litigation interests, the PTO's argument ignores that how its patent examiners approach their jobs is a question that falls squarely within the public's right to know how their government is functioning. Patent examiners fulfill a critical role in our constitutional democracy, helping to ensure the progress of science and useful arts. See U.S. CONST. art. I, § 8, cl. 8. They must fulfill that duty without regard to the identity of whose patent application(s) they are examining. The email to which Ms. Khuu replied can be read in such a way as to call into question that necessary objectivity. Both the Briney and Khuu emails were sent by examiners assigned specifically to review Mr. Hyatt's applications, related to Mr. Hyatt as an individual and did not concern the substance or merits of those applications, and were unconnected to any other proceedings that might make them subject to privilege. Although gossip amongst colleagues is natural and even normal, such exchanges between public servants are not per se shielded from disclosure merely because their employing agency considers them to be insignificant.
For the reasons detailed above, the Court will
