DUDLEY H. BOWEN, District Judge.
Presently before the Court in the captioned case are cross-motions for summary judgment by Defendants United States of America, United States Department of the Navy, Judge Advocate General, and Does One through Ten ("Defendants") (doc. no. 24), and by Plaintiff Thomas W. Sikes ("Plaintiff") (doc. no. 30). Upon due consideration and for the reasons set forth below, the parties' cross-motions are
Plaintiff brought this action pursuant to the Freedom of Information Act ("FOIA"), codified at 5 U.S.C. § 552 et seq., to obtain documents and information alleged to be in the custody and control of the United States Department of the Navy. (Doc. no. 1.)
Jeremy Michael Boorda ("Admiral Boorda") was an admiral in the United States Navy. (Jt. Stip. ¶ 1.) He served as Chief of Naval Operations ("CNO")
On or about April 23, 1994, Admiral Boorda was sworn in as CNO. (Id. ¶ 3.) His Change of Command Ceremony occurred at the United States Naval Academy in Annapolis, Maryland. (Id.) Over 3,800 individuals were invited to attend the ceremony, including President William Clinton, Vice President Al Gore, Secretary of Navy John Dalton, Secretary of Defense William Perry, various United States congressmen, and other domestic and foreign dignitaries. (Id. ¶ 4; see id., Ex. I.) Six Navy video camera crews and four Navy photographers covered the ceremony. (Id.) In addition to the Navy's media coverage, a number of civilian news groups covered the event, including The Washington Post, The Navy Times, and The Annapolis Capital Gazette. (Id. ¶ 5.)
On May 16, 1996, Admiral Boorda was found dead at his home. (Id., Ex. B.) During an investigation of Admiral Boorda's death, the Naval Criminal Investigative Service ("NCIS") found "[s]everal memorandum notes, business cards, laminated cards containing telephone numbers, and a six page handwritten document which appear[ed] to be notes relating to official business" in his vehicle. (Id., Ex. B). The NCIS concluded that Admiral Boorda's death was a suicide. (Id. ¶ 6.)
On August 26, 2011,
On February 25, 2012, Plaintiff appealed this determination to the Office of the Judge Advocate General ("Office of the JAG"). (Id. ¶ 16; id., Ex. J.) On March 19, 2012, the Office of the JAG denied Plaintiff's appeal, concluding that the release of the redacted names would constitute an "unwarranted invasion of privacy." (Id. ¶ 20; id., Exs. N-P.)
Plaintiff's second FOIA request ("FOIA Request 2") sought access to the "[s]everal memorandum notes, business cards, laminated cards containing telephone numbers, and [] six page handwritten document which appear[ed] to be notes relating to official business" recovered by the NCIS from Admiral Boorda's car on the date of his death. (Id. ¶ 8; id., Ex. B.) In response, the NCIS notified Plaintiff that the materials could not be released because they were "seized in the course of an investigation and entered into an evidence custody locker" and consequently were not "agency records" subject to disclosure under the FOIA. (Id. ¶ 23; id. Exs. O-R.) Plaintiff appealed this determination to the Office of the JAG on January 6, 2012. (Id. ¶ 25; id., Ex. S.) On February 9, 2012, the Office of the JAG denied Plaintiff's appeal, concluding that the materials were "personal records" and not subject to the FOIA's disclosure requirements because they were "personal notes/items" created and possessed solely by Admiral Boorda. (Id. ¶ 26; id., Ex. T.)
On June 27, 2012, Defendants subsequently provided Plaintiff "documents that... were responsive to FOIA Request 2." (Id. ¶ 27; see Pl.'s Br. Supp. Summ. J., Ex. 3.) However, Defendants indicated that the requested documents were "discovered after the initial response to FOIA Request # 2." (Pl.'s Br. Supp. Summ. J., Ex. 3.)
Plaintiff states in his sworn declaration that he is a "writer who is interested in Admiral Boorda, his tenure as the Chief of Naval Operations, and the circumstances surrounding his apparent suicide." (Pl.'s Br. Supp. Summ. J., Ex. 2, ¶ 2.) He seeks to learn more about "the pressures affecting the CNO's Office" and believes that "many of the attendees at the swearing-in ceremony ... may have insight into Admiral Boorda's temperament, work patterns, and responses to stress, as well as the types of stressors extant in the CNO's office during the time period." (Id. ¶¶ 3-4.) He expects that "[m]any of the people on the guest list ... may have additional personal ties [to Admiral Boorda] that could shed light on his character, background, and possible reasons for his tragic suicide." (Id. ¶ 5.)
Defendants offer the declaration of Robin Patterson ("Patterson"), Head of the Privacy and Freedom of Information Act Policy Office of the CNO. (Defs.' Br. Supp. Summ. J., Ex. A.) Patterson's office is "responsible for processing FOIA requests on behalf of the both (sic) [CNO] and the Department of the Navy" and is the "highest level FOIA office within the U.S. Navy." (Id. ¶ 4.) Patterson asserts that his office acted properly in response to FOIA Request 1, explaining:
(Id. ¶ 8.)
Defendants also offer the declaration of Grant Lattin ("Lattin"), Director of the General Litigation Division of the Office of the Judge Advocate General. (Defs.' Br. Supp. Summ. J., Ex. B.) Lattin's office "makes a final agency determination on approximately two-thirds of the FOIA appeals within the [Department of the Navy]." (Id. ¶ 2.) Lattin explains that Plaintiff's appeal of FOIA Request 1 was denied because the redacted names were "of no public interest." (Id. ¶ 8.) He echoes Patterson in that
(Id. ¶ 9.) Lattin asserts that neither his office nor Plaintiff identified "any possible public interest in the material...." (Id. ¶ 10.)
Regarding FOIA Request 2, Lattin's office upheld the NCIS's determination that the materials requested were not subject to disclosure under the FOIA. (Id. ¶ 11.) Lattin notes that "in determining whether a record is a personal record or an agency record an agency should examine the totality of the circumstances surrounding the creation, maintenance, and use of the record." (Id.) Lattin observed that the requested materials were Admiral Boorda's personal notes, have never been "submitted to the [Department of the Navy] for any official use[, and] were never made part of a [Department of the Navy] record." (Id.) Therefore, Lattin determined that the "NCIS properly withheld [the materials] from disclosure." (Id.)
Plaintiff commenced this action on May 24, 2012, asking that the Court order Defendants to produce the requested documents; enjoin Defendants from improperly withholding the requested documents; award Plaintiff attorney's fees, litigation expenses, and costs; and provide for expedition of the proceedings. (Doc. no. 1.) On January 10, 2013, the Court denied Defendants' motion to dismiss with respect to Plaintiff's FOIA Request 1. (Doc. no. 17.) In addition, the Court found that Plaintiff's claim regarding FOIA Request 2 was moot, leaving the issue of the availability of attorney's fees for Request 2 pending. (Id.) On March 13, 2013, Defendants filed their motion for summary judgment. (Doc. no. 24.) In turn, Plaintiff filed his cross-motion for summary judgment on March 29, 2013. (Doc. no. 30.) The Clerk issued to all parties notice of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. nos. 26, 31.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985) (per curiam), are satisfied.
The Court should grant summary judgment only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw "all justifiable inferences in [its] favor," United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal punctuation and citations omitted).
The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof at trial, that party "must show that, on all the essential elements of its case, ... no reasonable jury could find for the non-moving party." Four Parcels, 941 F.2d at 1438. On the other hand, if the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways — by negating an essential element of the nonmovant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir.1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.
If — and only if — the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id. Again, how to carry this burden depends on who bears the burden of proof at trial. If the movant has the burden of proof at trial, the non-movant may avoid summary judgment only by coming forward with evidence from which a reasonable jury could find in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. If the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carries its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary
Where, as here, "the evidentiary facts are not disputed, a court in a non-jury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions."
Defendants submit that the United States Department of the Navy is the sole proper defendant in this action and that the remaining Defendants should be dismissed. Although the FOIA considers a "military department" an "agency," see 5 U.S.C. § 552(f)(1), Defendants argue the United States of America and the Judge Advocate General ("JAG") fall outside the scope of this definition. Further, Defendants argue that Does One through Ten should be dismissed because the FOIA cannot be enforced against individuals. Plaintiff does not dispute these contentions.
The FOIA may be enforced only against "agencies." See 5 U.S.C. § 552(a)(3)(A). Further, the FOIA does not "create[] a cause of action for a suit against an individual employee of a federal agency." Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir.1987); see Stewart v. Doe, 2010 WL 4256186, at *2 (S.D.Ga. Sept. 29, 2010) ("Only federal agencies qualify as proper defendants in FOIA claims. Individual employees or officers of agencies are not appropriate defendants ...."), report and recommendation adopted, Stewart v. United States Department of the Army, 2010 WL 4256180 (S.D.Ga. Oct. 20, 2010). Here, the United States of America and Does One through Ten cannot properly be considered agencies and are not subject to the FOIA. Moreover, the JAG is an office within the Department of the Navy and therefore is not an agency as contemplated by the FOIA.
Accordingly, with respect to Defendants United States of America, JAG, and Does One through Ten, Defendants' motion for summary judgment (doc. no. 24) is
The FOIA seeks to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). The FOIA states that "each agency, upon any [valid] request for records... shall make the records promptly available...." 5 U.S.C. § 552(a)(3)(A). However, "Congress realized that legitimate governmental and private interests could be harmed by certain types of information" and created nine exemptions from this general rule of disclosure. FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see 5 U.S.C. § 552(b).
Consistent with FOIA's strong presumption in favor of disclosure, these exemptions must be narrowly interpreted. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). Indeed, when a court faces a conflict between privacy and disclosure, it should "choose that interpretation most favoring disclosure." Rose, 425 U.S. at 366, 96 S.Ct. 1592. Courts determine the applicability of an exemption de novo so that agencies will not categorically withhold nonexempt matters. Id. at 379, 96 S.Ct. 1592; see 5 U.S.C. § 552(a)(4)(B). Moreover, the burden of proof is on the agency to demonstrate it has acted properly in withholding information. 5 U.S.C. § 552(a)(4)(B); see United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ("[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents."). This burden is indeed "onerous." News-Press v. United States Dep't of Homeland Sec., 489 F.3d 1173, 1198 (11th Cir.2007).
The pertinent exemption at issue in this case, Exemption 6, protects information from disclosure when it involves "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 application of Exemption 6 is a two-tier analysis. News-Press, 489 F.3d at 1196.
Id. (internal quotations omitted). Here, the invitation list is not a medical or personnel file. Accordingly, the Court will consider whether the invitation list is a "similar file" under Exemption 6.
The Supreme Court has previously held, based on a searching review of the FOIA's legislative history, that the term "similar file" should be interpreted broadly to include "detailed Government records on an individual which can be identified as applying to that individual." United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). Conversely, "[i]nformation unrelated to any particular person presumably would not satisfy the threshold test."
Plaintiff submits that the Defendants have failed to meet this threshold inquiry. Plaintiff argues that an invitation list for a public function is not detailed Government records on an individual. Therefore, Plaintiff contends that the Court need not reach the question of whether disclosure of the list results in a clearly unwarranted invasion of personal privacy.
Defendants counter that the information sought contains names of private individuals. To Defendants, "there can be no legitimate argument that the name of a person is not linked to that individual." (Defs.' Rep. Supp. Summ. J., at 2.) Defendants observe that no case has allowed a FOIA request that seeks information about a particular private citizen and asks the Court to find that the information requested here is exempt from disclosure.
Here, the invitation list constitutes a "similar file" under Exemption 6. It is imperative that courts maintain a low threshold for consideration under Exemption 6.
New York Times Co., 920 F.2d at 1006 (quoting H.R.Rep. No. 1497, at 11 (1966)); see also Washington Post Co., 456 U.S. at 602 n. 4, 102 S.Ct. 1957 ("[T]here are undoubtedly many Government files which contain information not personal to any particular individual, the disclosure of which would nonetheless cause embarrassment to certain persons" and should be considered "similar files" under Exemption 6.).
The invitation list contains the requisite identifying information that renders it a "similar file": an individual's name. Especially where a list places an individual at an event or identifies one as undertaking an activity, it contains "information which applies to a particular individual." Washington Post Co., 456 U.S. at 602, 102 S.Ct. 1957; see also Sheet Metal Workers Int'l Ass'n, Local No. 9 v. United States Air Force, 63 F.3d 994, 998 (10th Cir.1995) (finding that forms listing the names of individuals who worked in a particular field is a "similar file" subject to Exemption 6); Reed v. NLRB, 927 F.2d 1249, 1250-51 (D.C.Cir.1991) (finding that a list of names and addresses of all employees eligible to vote at union representative elections is a "similar file" subject to Exemption 6); Wine Hobby U.S.A., Inc. v. United States IRS, 502 F.2d 133, 134-35 (3d Cir.1974)
Nevertheless, disclosure of the redacted names would not constitute a clearly unwarranted invasion of personal privacy. Here, Defendants' burden in showing that disclosure would constitute a "clearly unwarranted invasion of personal privacy" is onerous. Cochran v. United States, 770 F.2d 949, 955 (11th Cir.1985). Courts applying Exemption 6 must "balance the individual's right of privacy against [the FOIA's] basic policy of open[ing] agency action to the light of public scrutiny." Ray, 502 U.S. at 174, 112 S.Ct. 541 (citation omitted).
Defendants argue that "Exemption 6 is designed to protect personal information in public records, even if it is not embarrassing or of an intimate nature...." (Defs.' Br. Supp. Summ. J. at 11) (quoting Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C.Cir.1989)). Defendants emphasize that an individual's privacy interest in controlling the dissemination of his name is significant. (Id.) Further, Defendants contend that disclosure will subject individuals to unwanted interview requests by Plaintiff, especially since they "may not wish to be interviewed now about their relationships with [Admiral Boorda] or about his tragic death." (Id. at 12) (emphasis in original). Although Plaintiff seeks the names of individuals who were invited to a semi-public event, Defendants submit that these individuals "certainly [have] reasonable expectation[s] of privacy as to [their] own thoughts." (Id. at 14.)
In contrast, Plaintiff points out that an individual can decline an interview request. (Pl.'s Resp. Opp. Summ. J. at 12.) Plaintiff reasons that disclosure still preserves these individuals' personal thoughts and opinions regarding Admiral Boorda and that consequently "no significant privacy interest" has been implicated. (Id. at 13.) Moreover, Plaintiff contends that these individuals have no reasonable expectation to privacy in a list showing "who might attend an event," especially where that event was a "public ceremony that was extensively covered by newspapers, broadcast on television and attended by over two thousand people." (Id. at 13.)
The Supreme Court has observed, "Exemption 6 does not protect against disclosure every incidental invasion of privacy only such disclosures as constitute `clearly unwarranted' invasions of personal privacy."
The impact of the characteristics revealed on the invitation list is minimal. The list itself contains information regarding an individual's name, title, spouse's or guest's name (if applicable), and seating zone for the Change of Command Ceremony. (See Jt. Stip., Ex. I.) In addition, presence on the list simply indicates that an individual (1) likely attended the Change of Command Ceremony; and (2) worked with or knew Admiral Boorda or had close professional, diplomatic, or personal ties to the United States Navy. These characteristics are hardly spectacular. See Avondale Indus., Inc. v. NLRB, 90 F.3d 955, 961-62 (5th Cir.1996) (finding that voters who participated in a union election had a "negligible" privacy interest in keeping the "mere fact of their attendance at an election" private); Getman v. NLRB, 450 F.2d 670, 677 (D.C.Cir.1971) (concluding the impact of disclosure of the names and addresses of employees eligible to participate in union representative elections "very minimal"); see also News-Press, 489 F.3d at 1196 ("Congress'[s] primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." (emphasis and alteration in original)); Getman, 450 F.2d 670, 675 ("[T]he real thrust of Exemption (6) is to guard against unnecessary disclosure of files ... which would contain `intimate details' of a `highly personal' nature. The giving of names and addresses is a very much lower degree of disclosure; in themselves a bare name and address give no information about an individual which is embarrassing.").
In addition, the consequences likely to ensue from disclosure are also de minimis. Allowing disclosure may result in Plaintiff asking listed individuals whether they would be willing to discuss Admiral Boorda's life, personality, and career. This impact upon an individual's privacy interests is slight. See Getman, 450 F.2d at 674-75 ("[A]lthough a limited number of employees will suffer an invasion of privacy in losing their anonymity and in being asked over the telephone if they would be willing to be interviewed in connection with [the study], the loss of privacy resulting from this particular disclosure should be characterized as relatively minor."). Significantly, disclosing the names does not expose an individual's private thoughts or feelings. See Mordenti, 331 F.3d at 803-04 (concluding that an individual's "private thoughts and feelings concerning her misconduct... and its effect on her, her family, and her career" implicates an "important private interest"). Rather, disclosure of the names simply shifts the control of personal information from the Department of the Navy to the individual. The individual may then choose whether to agree to or refuse an interview with Plaintiff. Neither result implicates privacy interests, so disclosure of the redacted names would not frustrate Congress's purpose in enacting Exemption 6.
Moreover, Defendants have not identified a reason why disclosure would result in "an unwanted barrage of mailings and personal solicitations." See Horner, 879
Defendants are correct to note that "the fact that an event is not wholly `private' does not mean that an individual has no interests in limiting disclosure or dissemination the information." Mordenti, 331 F.3d at 803. Nevertheless, the privacy interests here are minimal.
The "relevant public interest to be balanced against the private interests at stake is the core purpose of FOIA: `to open agency to the light of public scrutiny.'" Mordenti, 331 F.3d at 803. The public has a right "to be informed about what their government is up to." Ray, 502 U.S. at 177, 112 S.Ct. 541. An informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." News-Press, 489 F.3d at 1190. Conversely, there is "no public interest in disclosure of information about private citizens that reveals little or nothing about an agency's own conduct." Judicial Watch, Inc. v. Bd. of Governors of Fed. Reserve Sys., 773 F.Supp.2d 57, 61 (D.D.C.2011). When Exemption 6 is implicated, Plaintiff bears the burden of production to "indicate how disclosing the withheld information `would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.'" News-Press, 489 F.3d at 1191. Nevertheless, the burden of persuasion remains on Defendants to prove that disclosure would amount to a "clearly unwarranted invasion of personal privacy." See 5 U.S.C. § 552(a)(4)(B); Ray, 502 U.S. at 173, 112 S.Ct. 541.
In asserting that a substantial public interest exists in favor of disclosure, Plaintiff observes that he is interested in learning about the pressures affecting the CNO's office during Admiral Boorda's tenure. (Pl.'s Br. Supp. Summ. J., Ex. 2). He believes that "[t]he identity of the attendees places Admiral Boorda's work life in a context that will provide insight both into [his] character and the individuals who influenced his work and personal life." (Id. at 15.) Plaintiff reiterates his hope to interview some of these individuals "to gain additional insights into both Admiral Boorda's character and the pressures of office that may have led to his tragic death." (Id.) Plaintiff concludes in asserting, "[P]reventing similar tragedies ... is surely" worthy of being considered in the public interest. (Id.)
In contrast, Defendants claim that there is no public interest in disclosure. Specifically, Defendants contend that "disclosure of the names of private persons and low-ranking Navy employees ... who attended the ceremony would reveal nothing about" the Navy's performance of its duties or
Here, the public interest in disclosure is significant. First, the Change of Command Ceremony was a highly publicized event conducted in the course of official Navy business.
In addition to the direct public interest advanced by disclosure, there is a significant public interest in Plaintiff's "derivative use" of the invitation list.
Admiral Boorda's career was remarkable; his apparent suicide, disquieting. Admiral Boorda's death possibly leaves a number of unanswered questions regarding the pressures facing one of the most powerful and influential roles in the United States Navy. Allowing disclosure of the names on the invitation list will help identify those individuals who may provide valuable insight into Admiral Boorda's character and offer context to the events and pressures that led to his death. See Getman, 450 F.2d at 671-72 (permitting disclosure of a list of
Additionally, Defendants fail to demonstrate that Admiral Boorda's tenure as CNO and the events surrounding his death have been sufficiently revealed to the public, which would have minimized the public interest in disclosure. See News-Press, 489 F.3d at 1191-92 (concluding that the agency failed to meet its burden in showing that disclosure of already public information "adequately served" the FOIA's purpose and that disclosure would "constitute a clearly unwarranted invasion of privacy"); Mordenti, 331 F.3d at 804 ("The public interest in knowing how [the government] responded to Cox's misconduct can be satisfied by ... other public information.... The roles of [third parties] in the events surrounding Cox's misconduct... are already well enough known for the public interest in disclosure to have been satisfied.").
In this matter, disclosure would not amount to a "clearly unwarranted invasion of personal privacy." Defendants have failed to demonstrate that disclosure would amount to anything greater than a de minimis invasion of personal privacy. Moreover, there is a valid public interest directly advanced by disclosure. Even if this public interest equates to the minimal invasion to privacy found here, Defendants' showing fails to overcome "the strong presumption in favor of disclosure." Ray, 502 U.S. at 173, 112 S.Ct. 541.
Defendants argue that a more narrowly tailored request would be more appropriate than disclosure of the redacted names. However, this argument obscures the relevant inquiry of Exemption 6. All Exemption 6 asks is whether disclosure of the information sought in FOIA Request 1 would amount to a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
Moreover, consideration of the public interest in the derivative uses of the list bolsters the conclusion that disclosure is appropriate. In Ray, the agency urged the Supreme Court to disregard the derivative uses of requested documents in its Exemption 6 analysis. Ray, 502 U.S. at 178-79, 112 S.Ct. 541. The Supreme Court noted that "[m]ere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy." Id. at 179, 112 S.Ct. 541. However, the Court declined to rule on the issue because there was no indication that any derivative use would "produce any relevant information that is not set forth in the documents that have already been produced." Id.
Although this Circuit has not addressed this issue, it appears that consideration of derivative uses is appropriate in certain circumstances. See, e.g., Ray v. United States Dep't of Justice, 852 F.Supp. 1558, 1565 (S.D.Fla.1994) (observing that the Supreme Court "declined to reject the derivative use theory in its entirety" and recognized "the public interest in allowing a derivative use of redacted information"); cf. News-Press, 489 F.3d at 1199 ("[W]hether disclosure of a list of names is a significant or a de minimis threat [to personal privacy] depends upon the characteristics(s) revealed by the virtue
Upon due consideration of the foregoing, Defendants have failed to demonstrate that disclosure of the redacted names on the invitation list would amount to a "clearly unwarranted invasion of personal privacy."
Plaintiff also requests that the Court award him attorney's fees and litigation expenses for both FOIA Request 1 and Request 2.
To show that he substantially prevailed on FOIA Request 2, Plaintiff must establish that "prosecution of the action could reasonably be regarded as necessary to obtain the information and that the action had a substantial causative effect on the delivery of the information." Chilivis v. S.E.C., 673 F.2d 1205, 1212 (11th Cir.1982). In other words, Plaintiff "must establish that the lawsuit provided the necessary impetus for disclosure." Id. Whether a party has substantially prevailed is a determination left to the discretion of the trial court. Id.
In addition, Defendants' inconsistent, if not disingenuous, justifications for withholding the materials suggests an inference that they withheld the requested materials in bad faith. In response to FOIA Request 2, the NCIS initially indicated that the materials could not be released because they were "seized in the course of an investigation and entered into an evidence custody locker" and consequently were not agency records for the purposes of FOIA.
Accordingly, Plaintiff has met his burden in establishing that he substantially prevailed regarding FOIA Request 2.
Once a plaintiff has established that he has substantially prevailed and thus eligible for an award of attorney's fees, a court must then determine whether that party is entitled to an award of attorney's fees. See Lovell, 630 F.2d at 431; Abernethy v. I.R.S., 909 F.Supp. 1562, 1567 (N.D.Ga.1995). Whether a party is entitled to attorney's fees is a determination left to the discretion of the court. See 5 U.S.C. § 552(a)(4)(E)(i); Lovell, 630 F.2d at 431. The burden is on the Plaintiff to demonstrate that he is entitled to attorney's fees. Abernethy, 909 F.Supp. at 1567. In determining whether a plaintiff is entitled to attorney's fees, four factors are relevant:
Chilivis, 673 F.2d at 1212 n. 16.
Here, Plaintiff has met his burden in proving that he is entitled to attorney's fees for both FOIA requests. As discussed supra, there is a significant benefit to the public by disclosing the materials and information at issue. First, the information requested in FOIA Request 1 provides a valuable cross-section of the stakeholders of the Office of the CNO. Second, the derivative uses of that information will identify those individuals who can provide valuable insight into Admiral Boorda and the pressures facing the Office of the CNO. Similarly, disclosure of the materials in FOIA Request 2 will also provide insight on the many pressures Admiral Boorda faced during his service as CNO and the continuing stressors facing that position. These insights can later be used to prevent tragedies like Admiral Boorda's suicide and better equip servicemen and women to face the pressures they face daily. Accordingly, the first factor militates toward awarding Plaintiff attorney's fees.
Finally, Plaintiff has established that Defendants' justifications for withholding the materials requested are not reasonable. As explained supra, Defendants have failed to justify their failure to release the materials requested in FOIA Request 1. Indeed, given the minimal privacy interests implicated and the strong public interests in disclosure, Defendants' position regarding FOIA Request 1 was "not founded on a colorable basis in law." See Abernethy, 909 F.Supp. at 1568. Moreover, Defendants' inconsistent and varying justifications for withholding the materials requested in FOIA Request 2 suggests that Defendants withheld the materials in bad faith. See LaSalle, 627 F.2d at 484 (awarding attorney's fees because the defendants "have been recalcitrant in their opposition to [the plaintiff's] valid claim [and] have been otherwise engaged in obdurate behavior" in refusing to release the materials sought). This fourth factor militates in favor of awarding Plaintiff attorney's fees. See Abernethy, 909 F.Supp. at 1568 (observing that this factor can be determinative in certain instances).
Upon due consideration of the foregoing, the Court concludes that Plaintiff is entitled to reasonable attorney's fees and expenses for both FOIA Request 1 and Request 2. Accordingly, Plaintiff's motion for summary judgment with respect to attorney's fees and litigation expenses for FOIA Request 1 and Request 2 as against Defendant United States Department of the Navy is
Based upon the foregoing, Defendants' motion for summary judgment (doc. no. 24) is
Plaintiff's motion for summary judgment (doc. no. 30) is
