United States District Court, D. Montana, Missoula Division
OPINION and ORDER
DONALD W. MOLLOY, District Judge.
The Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, mandates that federal agencies make their records available to the public upon request, subject to nine discretionary exemptions. Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 685 (9th Cir. 2011). This case involves the application of FOIA Exemption 6, which provides that an agency may withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Plaintiff Mark Kowack ("Kowack") asked for information from the Forest Service concerning his allegations that his workplace was hostile and that he was "experiencing threats, aggression, and workplace hostility from certain of his co-workers." Kowack v. US. Forest Serv., 766 F.3d 1130, 1131 (9th Cir. 2014). I have reviewed in camera all of the materials submitted by the Forest Service, unredacted, and find that much of what the Forest Service believes should be redacted is not in compliance with the Circuit's decision on appeal in this case. For the reasons set forth below, I am ordering disclosure of more detailed information. That said, the FOIA request here may be an instance where one should be careful in what he asks for. As the Dalai Lama observed, "Remember that not getting what you want is sometimes a wonderful stroke of luck."
FACTUAL AND PROCEDURAL HISTORY
Kowack is an employee of the Trapper Creek Job Corps Center (the "Center") in Darby, Montana. Kowack claims that in 2008, he began experiencing harassment, threats, and aggressive behavior by some of his co-workers. He says he also feared for the safety of his students. Kowack expressed his concerns to the Forest Service and claims that little action was taken. He notified both Senator Baucus and Forest Service Chief Tidwell, and the Forest Service conducted an investigation. After the investigation was complete, the Forest Service wrote him: "The Misconduct Investigation has been completed and a Report of Investigation has been issued and reviewed by our Employee Relations Specialist. The Investigation did not substantiate the allegations therefore the investigation has been closed."
Kowack was unhappy with the results of the investigation, believing it to be a "cover up of the Center Director's and management's incompetence and failure to follow Forest Service policies and procedures." As a result, he submitted a FOIA request for "any and all statements, interviews, photos, notes and any other documents that pertain to the misconduct investigation.'" The Forest Service was ordered to produce a Vaughn index describing the substance of the documents. (Doc. 11.) Upon review of that index, summary judgment was granted in favor of the Forest Service on the grounds that the agency properly withheld portions of the documents under FOIA Exemptions 5 and 6. (Doc. 21.) Kowack appealed that decision. See Kowack, 766 F.3d 1130.
The Ninth Circuit remanded the case, holding that the Forest Service's Vaughn index did not provide an adequate factual basis for concluding that the disclosure of witness statements or administrative documents fell within the scope of either FOIA's personal privacy exemption, 5 U.S.C. § 552(b)(6), or FOIA's inter-agency communication exemption, 5 U.S.C. § 552(b)(5). Kowack, 766 F.3d at 1133-35. Pursuant to that remand order, on January 5, 2015, this Court ordered the Forest Service to file a supplemental Vaughn index. (Doc. 27.) On February 4, 2015, the Forest Service complied, filing an affidavit from Sara Sullivan, who is employed in the Forest Service's FOIA office, containing a Vaughn index addressing the two classes of documents identified by the Ninth Circuit in its order of remand: witness statements (approximately 21 pages) and administrative documents (approximately 17 pages). (Doc. 28-1.) This disclosure provided an insufficient factual basis to determine whether Exemption 6 was properly applied (Doc. 33.) As a result, in camera review of the documents was ordered. ( Id. ); see 5 U.S.C. § 552(a)(4)(B).
Although the Forest Service's supplemental Vaughn index correctly identified much of the redacted information as highlighting interoffice or interpersonal issues, in camera review reveals that the privacy interests at stake can be protected and the public interest better served by fewer redactions than were used by the agency. Moreover, information in which there is no privacy interest comprises a significant portion of the currently redacted information and must be disclosed without consideration of the public interest.
I. Exemption 6
Exemption 6 allows an agency to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The purpose of Exemption 6 is "to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." US. Dep't of State v. Wash. Post Co., 456 U.S. 595, 599 (1982). Determining whether an agency has properly withheld records or information pursuant to Exemption 6 is a two-step process. Prudential Locations LLC v. U.S. Dep't of Housing & Urban Dev., 739 F.3d 424, 429 (9th Cir. 2013). The first inquiry is whether the documents qualify under the heading of "personnel and medical files and similar files." Id. The second inquiry is "whether production of the document, or information contained therein, would constitute a clearly unwarranted invasion of personal privacy." Id. (internal quotation marks omitted). In answering the second question, courts "must balance the privacy interest protected by the exemption against the public interest in government openness that would be served by disclosure." Id. at 430 (internal quotation marks omitted).
Here, the Ninth Circuit has already determined that the 38 pages in question fall within the category of "personnel and medical files and similar files." Kowack, 766 F.3d at 1133. However, it concluded the Forest Service provided insufficient information in its initial Vaughn index to assess either the privacy interest or the public interest at issue. Id. at 1134. In doing so, the Ninth Circuit provided a framework for addressing the privacy interests on remand. It held that the primary individuals involved-the department employees and the center director-"have no privacy interests in preventing the public from knowing about their involvement with the investigation." Id. at 1133-34. It further found that witnesses do not have a privacy interest in those statements that "could be disclosed without revealing who made them, " but "witnesses may have a privacy interest in ensuring that their names aren't associated with specific incidents reported to the investigator." Id. at 1134 (emphasis in original). Having examined the record in camera, although it is not possible to disclose the entire substance of the witness statements without revealing who made them or implicating other cognizable privacy interests, the Forest Service improperly withheld more of the witness statements and administrative documents than proper under Exemption 6.
A. Cognizable Privacy Interest
Because Exemption 6 requires the invasion of privacy to be "clearly unwarranted, " this exemption "tilt[s] the balance (of disclosure interests against privacy interests) in favor of disclosure, " and creates a "heavy burden" for invoking Exemption 6. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1128 (D.C. Cir. 2007). The agency bears the burden of establishing that the balance tips in favor of privacy. 5 U.S.C. § 552(a)(4)(B). "To withhold information under Exemption 6, an agency must show that 'some nontrivial privacy interest is at stake.'" Prudential Locations LLC, 739 F.3d at 430 (quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 501 (1994)) (emphasis in original). "If only a trivial privacy interest is implicated, then Exemption 6 cannot apply." Id.
The Forest Service argues that the privacy interests of the witnesses and the subjects of their statements are implicated in this case because the witness statements include very candid and somewhat inflammatory comments about coworkers and managers. Due to the perceived offensive nature of these comments, the Forest Service alleges these employees could face retaliation from their colleagues if the redacted information is released and the witnesses' colleagues would be embarrassed by their portrayals in these statements. (Supp. Vaughn Index, Doc. 28-1 at 11-12.)
As recognized by the Ninth Circuit, individuals have a privacy interest in being "free from retaliation, harassment, embarrassment, or stigma" and in "keeping personal facts away from the public eye." Prudential Locations LLC, 739 F.3d at 431 (internal quotation marks omitted). This includes references to employment history and job performance evaluations. Dep't of the Air Force v. Rose, 425 U.S. 352, 376-77 (1976). Nevertheless, this privacy interest is limited to those instances where the embarrassing, shameful, or inciting information is linked to a particular, identifiable individual. Forest Serv. Emps. for Envtl. Ethics v. US. Forest Serv., 524 F.3d 1021, 1026 (9th Cir. 2008) [hereinafter Forest Serv. Emps.] ; see US. Dep't of State v. Ray, 502 U.S. 164, 175-76 (1991) (holding that disclosure of "highly personal information"-there, "marital and employment status, children, living conditions and attempts to enter the United States"-"constitute[d] only a de minimis invasion of privacy" if not "linked publicly with particular, named individuals"); Yonemoto, 686 F.3d at 697 (remanding for a determination of whether disclosure would reveal the individual's identity). What constitutes identifying information is weighed both from the public viewpoint and from the vantage point of those familiar with the mentioned individuals. Rose, 425 U.S. at 380. Such information can be in reference to either the "author" or the "subject" of a document, as both can possess cognizable privacy interests. N.Y. Times Co. v. Nat'l Aeronautics & Space Admin., 920 F.2d 1002, 1007-08 (D.C. Cir. 1990) (en banc). The Forest Service's supplemental Vaughn index and this Court's in camera review reveal that the responsive documents contain some information that would be embarrassing or shameful and/or could potentially lead to retaliation if linked to a particular, identifiable individual. Such privacy interests are cognizable under Exemption 6.
That said, much of the redacted information does not implicate a privacy interest, but merely casts a negative light on the operation of the Center or includes comments and opinions that are not identifying in nature. As there is no privacy interest in such information, it must be disclosed without any consideration of whether there is a countervailing public interest. Yonemoto, 686 F.3d at 694 ("If, at step one, the agency fails to establish that disclosing the contested information would lead to the invasion of a non-trivial personal privacy interest protected by Exemption 6, the FOIA demands disclosure, without regard to any showing of public interest.").
Additionally, there is no cognizable privacy interest in information that references or describes Kowack alone. Exemption 6 cannot be invoked to withhold from a requester information pertaining only to him or herself. See U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 771 (1989) [hereinafter Reporters Comm. ] (citing Dep't of Justice v. Julian, 486 U.S. 1, 13-14 (1988)); Dean v. Fed. Deposit Ins. Corp., 389 F.Supp.2d 780, 794 (E.D. Ky. 2005) ("When the person identified in the document is the person requesting the document, the Court is unable to determine how any potential or realized invasion of personal privacy' could possibly be considered unwarranted' in this circumstance."). Therefore, there is no cognizable privacy interest in those portions of the documents that reference only Kowack and do not identify others. This information must also be disclosed without any showing of public interest.
B. Public Interest
In considering the information in which a cognizable privacy interest exists, "the only relevant public interest under Exemption 6 is the extent to which the information sought would shed 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 and alteration omitted). Information "that reveals little or nothing about an agency's own conduct, " however, is not subject to the same interest. Reporters Comm., 489 U.S. at 773. The question is whether the disclosure would "contribut[e] significantly to public understanding of the operations or activities of the government." U.S. Dep't of Def., 510 U.S. at 495 (internal quotation marks and emphasis omitted).
Kowack insists that the disclosure of the identities of the department employees and managers involved in the investigation and the substance of the witness statements would serve the public interest by shedding light on several varieties of potential agency misconduct in management and issues concerning a negative work environment. In camera review shows that much of the content of the witness statements and administrative documents provides insight into the operations and management of the Center. This kind of information sheds light on the Forest Service's performance of its statutory duties and lets the citizens know what their government is up to. U.S. Dep't of Def., 510 U.S. at 497. Disclosure of such information appreciably furthers the public's interest in monitoring the agency's operations and activities in an area where little information has been publicized. Cf. Forest Serv. Emps., 524 F.3d at 1027-28 (concluding that the substantial information already available in the public domain meant the release of the withheld information would not appreciably further the public interest).
However, Kowack has not shown that references to past disciplinary or grievance actions or knowing the identity of the witnesses would contribute significantly to the substantive information in the statements and administrative documents concerning the manner in which the Forest Service has performed its statutory duties. Prudential Locations, LLC, 739 F.3d at 433. To the contrary, release of this information would not appreciably further the public's understanding of the manner in which the Forest Service operates. Reporter Comm., 489 U.S. at 773-74 (distinguishing information that speaks to conduct of individuals from that which speaks to the conduct of the agency). Therefore, there is no public interest in the release of that information and it may be redacted under Exemption 6. Similarly, disclosing a witness's relatively petty comments that do not speak to the workplace environment as a whole reveals nothing about the inner workings of the agency and would likely cause significant embarrassment to both the witnesses and the subjects. Yonemoto, 686 F.3d at 698. Such information may be properly redacted pursuant to Exemption 6.
C. Balancing the Interests
To determine whether releasing certain information "would constitute a clearly unwarranted invasion of personal privacy, " the privacy interest in preventing the disclosure of information that would be embarrassing or shameful when connected to particular, identifiable individuals must be balanced against the public interest in understanding the manner in which the Forest Service performed its statutory duties. The challenge in this case is providing a complete and accurate record of whether the Forest Service, as an agency, acted appropriately under the circumstances. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 92 (D.C. Cir. 1984) (noting "the public may have an interest in knowing that a government investigation itself is comprehensive, that the report of an investigation released publicly is accurate, that any disciplinary measures imposed are adequate, and that those who are accountable are dealt with in an appropriate manner"). That challenge is even greater because the substantive content of the witness statements and summaries has never been disclosed. Cf. Hertzberg v. Veneman, 273 F.Supp.2d 67, 87 (D.D.C. 2003) (concluding no public interest in the disclosure of the requested information-i.e. the names, addresses, and telephone numbers of the witnesses-when the substantive content of the witness statements had already been disclosed to the plaintiff).
Here, the disclosure of certain personal information is necessary to provide an accurate picture of the agency's conduct. To the extent the information may be disclosed without identifying the witness, revealing references to past disciplinary or grievance actions, or exposing petty interoffice commentary, the public interest in its disclosure outweighs the countervailing privacy interest because it does, as the Ninth Circuit so suggests, speak directly to the public understanding of the operations or activities of the agency. See Kowack, 766 F.3d at 1134 ("For all we know, the witness statements reveal that the Trapper Creek Center is run by dangerous bullies who shouldn't be allowed anywhere near disadvantaged youth."). Under these circumstances, the invasion of the individuals' personal privacy is not "clearly unwarranted." The public interest in disclosing most of the substantive content of the witness statements and the summaries is only strengthened by the divergent conclusions one could draw from reviewing the redacted and unredacted documents. Accordingly, the reasonably segregable portions of the record must be disclosed. 5 U.S.C. § 552(b); see Rose, 452 U.S. at 381 (noting that "redaction cannot eliminate all risks of identifiability, as any human approximation risks some degree of imperfection").
The Court's in camera review is limited to the 38 responsive pages discussed in the order of remand; this includes 21 pages of witness statements and 17 pages of administrative documents. Attached to this Order is an appendix for the Forest Service, which highlights what information may be properly redacted consistent with the reasoning discussed here. In reaching this conclusion, the content of the witness statements and administrative documents was considered in the context of three categories: (1) information in which there is no privacy interest (must be disclosed); (2) information in which there is a privacy interest, but no public interest (may be redacted); and (3) information in which the privacy interest and the public interest must be balanced (sometimes subject to redaction, sometimes not). Although the information in the third category may appear paltry or of little public significance when considered independently, it nevertheless plays an important role in providing a balanced and more complete picture of the operation of the Center and the propriety of the agency's actions in this case.
A. Witness Statements
1. Witness Statement No. 1 (5 responsive pages)
The supplemental Vaughn index states that this is a witness statement from a low-level Forest Service employee, and that the redacted portion includes names of other employees, witnesses, and students and "contain[s] the witness' [s] unfavorable, detailed opinions of management and colleagues." (Doc. 28-1 at 8.) In camera review shows that the Forest Service redacted more information than may be properly withheld pursuant to Exemption 6.
a. Page 1
As a preliminary matter, the witness statements each contain a disclaimer at the beginning that they were given with the knowledge that they are "not confidential." Although this arguably dissipates the witnesses' privacy interest in not being identified with their statements, cf. Ray, 502 U.S. at 177 (finding the fact the interviews were conducted pursuant to assurances of confidentiality significant in consideration of privacy interest); Prudential Locations LLC, 739 F.3d at 432-33 (same), the existence of a non-trivial privacy interest, however minimal, outweighs a non-existent public interest, Kowack, 766 F.3d at 1136; U.S. Dep't of Def., 510 U.S. at 501. Therefore, the inclusion of this language at the beginning of each witness statement does not foreclose the existence of a cognizable privacy interest and a potentially justified redaction.
The following information on the first page was properly redacted because there is an identifiable, non-trivial privacy interest and no public interest in its disclosure: witness's name/initials (¶¶ 1, 2), witness's job description (¶ 2), and students' names (¶ 4). On the other hand, the following information must be disclosed with no consideration of the public interest because there is no privacy interest in preventing its disclosure: reference to assignment to the Center (¶ 2) and general comments about the students and the work environment (¶¶ 2, 3). Yonemoto, 686 F.3d at 694.
There it both a cognizable privacy interest and a public interest in the remaining information on the first page. In paragraph 4, the witness recounts knowledge and observations regarding student interactions with Kowack. Portions of this commentary implicate the witness's privacy interest because there is the potential that the context of the incidents may by identifying. This slight interest in preventing indirect identification must be balanced against the countervailing public interest in knowing how staff behaved around students and the agency's knowledge of such behavior. This public interest can be served by disclosing those portions of the paragraph that are least likely to allow for identification of the witness yet adequately describe the interactions. The Forest Service must limit its redactions accordingly.
b. Page 2
The following information was properly redacted because there is an identifiable, non-trivial privacy interest in preventing its disclosure and no countervailing public interest: petty commentary about co-workers that would be embarrassing if disclosed (¶¶ 1, 2) and a reference to disciplinary action (¶ 1). Yonemoto, 686 F.3d at 698; Rose, 425 U.S. at 376-77. On the other hand, the following information must be disclosed with no consideration of the public interest because there is no privacy interest in preventing its disclosure: commentary about Kowack that does not specifically identify or reference anyone else (¶ 1) and general commentary about how the Center is managed (¶ 2). Reporters Comm., 489 U.S. at 771; Yonemoto, 686 F.3d at 694.
The public and privacy interests must be balanced to determine the disclosure of the remaining information on this page. Much of the first paragraph discusses management and its approach to dealing with human resources issues. To the extent there is a privacy interest in the information, i.e., that it is either embarrassing or shameful, that privacy interest is outweighed by the public interest in knowing how the agency has addressed, or potentially mishandled, supervisory issues and concerns regarding a hostile and negative work environment. Moreover, the management employees discussed by the witness, Linda Guzik, the Center Director, and Prentis Wofford, the supervisor of the Education Department, potentially have lesser personal privacy interests than lower-level employees. Cf. Forest Serv. Emps., 524 F.3d at 1025 (noting that lower-level employees have a stronger privacy interest than "senior officials").
In her role as Center Director, Guzik oversees approximately 70 staff members and 224 students. Guzik has supervisory authority and special responsibilities, traits consistent with those of employees designated as higherlevel employees by courts in FOIA actions. See Dobronski v. Fed. Commc'n Comm'n, 17 F.3d 275, 280 n.4 (9th Cir. 1994) (concluding an assistant bureau chief for the Federal Communications Commission's Private Radio Bureau was a high-level employee because he "holds a position of relative influence"); Chang v. Dep't of Navy, 314 F.Supp.2d 35, 44-45 (D.D.C. 2004) (holding that the commander of a ship was a high-level employee). As a higher-level employee, Guzik's privacy interests are dissipated to a greater degree than her lower-ranking colleagues. ...