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Cameranesi v. United States Department of Defense

United States Court of Appeals, Ninth Circuit

May 8, 2017

Theresa Cameranesi; Judith Liteky, Plaintiffs-Appellees,
v.
United States Department of Defense; U.S. Army Training and Doctrine Command, Defendants-Appellants.

          Argued and Submitted May 13, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California, D.C. No. 4:12-cv-00595-PJH Phyllis J. Hamilton, Chief Judge, Presiding

          Steve Frank (argued) and Leonard Schaitman, Appellate Staff; Melinda Haag, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Duffy Carolan (argued), Jassy Vick Carolan LLP, San Francisco, California; Kent Spriggs, Spriggs Law Firm, Tallahassee, Florida; for Plaintiffs-Appellees.

          Bruce D. Brown, Katie Townsend, Adam A. Marshall, and D. Victoria Baranetsky, Washington, D.C., as and for Amicus Curiae The Reporters Committee for Freedom of the Press.

          Before: Andrew J. Kleinfeld, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         Freedom of Information Act

         The panel withdrew the opinion and dissent filed on September 30, 2016; filed a superseding opinion and dissent; and reversed the district court's summary judgment in favor of plaintiffs, who brought an action under the Freedom of Information Act ("FOIA") against the United States Department of Defense seeking the names of foreign students and instructors at the Western Hemisphere Institute for Security Cooperation.

         The panel held that disclosure of the names of the foreign students and instructors would constitute a clearly unwarranted invasion of personal privacy, and was exempt from disclosure under Exemption 6 of FOIA, 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." 5 U.S.C. § 552(b)(6).

         Applying the two-step test to determine whether disclosing the names would constitute an unwarranted invasion of personal privacy under Exemption 6, the panel first concluded that the affidavits and other evidence submitted by the Department of Defense was sufficient to carry the Department's burden to establish that the disclosure of the requested information gave rise to a nontrivial risk of harassment and mistreatment. Second, the panel balanced the privacy interests against the public interests, and concluded that the small incremental value stemming from disclosure of the identities did not outweigh the serious risks that would result from disclosure.

         Dissenting, Judge Watford would affirm the district court's summary judgment, because in his view the Department of Defense did not carry its burden of demonstrating that the students' and instructors' interests outweighed the strong public interest in disclosure of their names.

         ORDER

         The opinion and dissent filed on September 30, 2016, and appearing at 839 F.3d 751, are withdrawn. The superseding opinion and dissent will be filed concurrently with this order.

         Appellees' petition for rehearing en banc, filed November 14, 2016, is DENIED. Judge Ikuta voted to deny the petition for rehearing en banc and Judge Kleinfeld so recommended. Judge Watford voted to grant the petition for rehearing en banc. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. No further petitions for rehearing or rehearing en banc will be entertained.

          OPINION

          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.

         I

         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.

         A

         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.[1]

         As part of these monitoring efforts, SOAW submitted a FOIA request to the Department of Defense (DOD) seeking the names of all former and current SOA students and instructors. The DOD granted the request in 1994, and disclosed the names of all SOA students and instructors dating back to the school's formation in 1946. SOAW used the names to create a database containing the names, countries, and courses taken or taught by each attendee.

         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).[2] The Leahy Amendments precluded the DOD from providing congressionally appropriated funds to any unit of a foreign country's security forces if there was credible evidence that the unit "has committed gross violations of human rights, " unless the Secretary of State reported to Congress that the foreign government was "taking effective measures to bring the responsible members of the security forces unit to justice." Id.

         Congress reenacted the Leahy Amendments in subsequent appropriations bills[3] until 2008, when the amendments were codified as part of the DOD appropriations rules, 10 U.S.C. § 2249e, and the Foreign Assistance Act, 22 U.S.C. § 2151 et seq. The provisions pertaining to the DOD, 10 U.S.C. § 2249e, state that no funds "made available to the Department of Defense . . . may be used for any training, equipment, or other assistance for a unit of a foreign security force if the Secretary of Defense has credible information that the unit has committed a gross violation of human rights." Id. § 2249e(a)(1). The law further requires the Secretary of Defense to consult with the Secretary of State to "ensure that prior to a decision to provide any training, equipment, or other assistance to a unit of a foreign security force full consideration is given to any credible information available to the Department of State relating to human rights violations by such unit." Id. § 2249e(a)(2). The statute does not require the DOD to continue to monitor the performance of such units or the careers of individual members of those units after they leave WHINSEC. The provisions pertaining to the Secretary of State impose a similar ban on providing assistance to a unit believed to have committed human rights violations. 22 U.S.C. § 2378d.[4] As later amended in 2011, the statute also directs the Secretary of State to "establish, and periodically update, procedures to . . . ensure that when an individual is designated to receive United States training, equipment, or other types of assistance the individual's unit is vetted as well as the individual." Id. § 2378d(d)(5).[5] If the Secretary determines that a particular unit is ineligible for assistance, the Secretary is required to "make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished." Id. § 2378d(d)(7). As with the statute regulating the DOD, there is no requirement for the Secretary of State to continue monitoring students for human rights abuses after they graduate from WHINSEC. In short, the statutes require the Secretary of State to take the lead in vetting foreign units receiving United States assistance, and the Secretary of Defense to consider information from the State Department before providing training or assistance to foreign military units, but not to continue such vetting after the assistance has concluded.

         B

         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 annual meetings from 2002 to the present.[6] The minutes reflect that the Board closely oversaw the development of WHINSEC's human rights curriculum, see Board of Visitors WHINSEC, Minutes of Annual Meeting (Jun. 3-4, 2002), [7] and ultimately concluded that WHINSEC "is a success story, in terms of its diligent pursuit of its mission of teaching professional military values, including human rights and democracy, " Board of Visitors WHINSEC, Minutes of Annual Meeting (Dec. 1-2, 2004).[8] In executing its ongoing duty to monitor WHINSEC's fulfillment of its human rights mission, [9] the Board has formed a curriculum subcommittee which has "observed classes, reviewed selected lesson plans and reference material, and visited training facilities, " as well as interviewed students and faculty. Memorandum from Matthew D. Anderson & Robert C. Morlino, WHINSEC BoV, on Curriculum Review of WHINSEC (July 13, 2007) (Annex 3 in Sec'y of Def., Annual Report to Cong. on the Activities of the Western Hemisphere Institute for Security Cooperation 19 (2007)). In 2007, the Board's curriculum subcommittee concluded that WHINSEC had made "enormous strides in inserting human rights and democracy education into the curriculum, and is reported to have exceeded minimum required hours of instruction." Memorandum from the Curriculum Review Sub-Committee, WHINSEC BoV, on Review of WHINSEC Curriculum (May 30, 2007) (Annex 3 in Sec'y of Def., Annual Report to Cong. on the Activities of the Western Hemisphere Institute for Security Cooperation 25 (2007)).[10]Based on this report, the Board of Visitors concluded that WHINSEC "was meeting and in some cases exceeding its congressional mandate in the area of promoting human rights and democratic values." Memorandum from Matthew D. Anderson & Robert C. Morlino, WHINSEC BoV, on Curriculum Review of WHINSEC (July 13, 2007) (Annex 3 in Sec'y of Def., Annual Report to Cong. on the Activities of the Western Hemisphere Institute for Security Cooperation 19 (2007)).

         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 (Feb. 15, 2007) (Annex F in Sec'y of Def., Annual Report to Cong. on the Activities of the Western Hemisphere Institute for Security Cooperation (2006)). On one occasion, in response to charges by SOAW that "several alleged human rights violators had participated in WHINSEC programs, " the Board requested an investigation into the vetting process and reported that "effort and care" went into making the vetting process "rigorous, labor intensive, layered, and multi-agency." Id. at 1-2.[11] As part of its oversight effort, despite having neither funds nor legal authority "to follow the subsequent military careers of former [WHINSEC] students on an organized basis, " the Board of Visitors nevertheless employed analysts to conduct external evaluations, used a survey tool developed by the United States Southern Command, and made efforts through contacts in foreign countries to obtain ongoing information regarding former WHINSEC students. Board of Visitors WHINSEC, Minutes of Annual Meeting 4 (Dec. 1-2, 2004).

         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.

         C

         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 database included some 60, 000 names, which it used to identify individuals who have allegedly engaged in human rights abuses.

         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.[12]

         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 advised the representatives that "we need to be very careful about the release of that information, and we would oppose that." Id. Congress ultimately decided not to include the disclosure requirement in the appropriations act.

         D

         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 ...


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