Long v. Office of Personnel Management, No. 10-1600 (2d Cir. 2012)
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Plaintiffs appealed from two orders of the district court granting in part and denying in part each side's motion for summary judgment resolving the applicability of Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(6), to a federal agency's decision to withhold names and duty-station information from personnel records for over 800,000 federal civilian employees. The court held that the district court correctly found that the names could be withheld, but erred insofar as it found that the agency must disclose all of the duty-station information.
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10-1600 (L) Long v. Office of Personnel Mgmt. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: May 18, 2012 Decided: September 5, 2012) Docket Nos. 10-1600 (Lead) 10-1618 (XAP) - - - - - - - - - - - - - - - - - - - -x SUSAN B. LONG, DAVID BURNHAM, Plaintiffs-Appellants-Cross-Appellees, - v.OFFICE OF PERSONNEL MANAGEMENT, Defendant-Appellee-Cross-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CHIN and DRONEY, Circuit Judges. Appeal from two orders of the United States District 31 Court for the Northern District of New York (Norman A. 32 Mordue, J.) granting in part and denying in part each side s 33 motion for summary judgment resolving the applicability of 34 Exemption 6 of the Freedom of Information Act, 5 U.S.C. § 35 552(b)(6), to a federal agency s decision to withhold names 36 and duty-station information from personnel records for over 37 800,000 federal civilian employees. We hold that the 1 district court correctly found that the names could be 2 withheld, but erred insofar as it found that the agency must 3 disclose all of the duty-station information. 4 AFFIRMED IN PART, REVERSED IN PART. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ADINA H. ROSENBAUM, Public Citizen Litigation Group, Washington, D.C. (Scott L. Nelson, on brief), for Appellants-CrossAppellees. STEVE FRANK, United States Department of Justice, Washington, D.C. (Leonard Schaitman, on brief), for Tony West, Assistant Attorney General, for Appellee-CrossAppellant. DENNIS JACOBS, Chief Judge: In response to plaintiffs Freedom of Information Act 22 ( FOIA ) request for all records in the central database of 23 defendant Office of Personnel Management ( OPM ), OPM 24 withheld from disclosure the names and duty-station 25 information of over 800,000 federal employees. 26 orders, the United States District Court for the Northern 27 District of New York (Norman A. Mordue, J.) granted in part 28 and denied in part each side s motion for summary judgment 29 resolving the applicability of FOIA s personal privacy 30 exemption: Exemption 6, 5 U.S.C. § 552(b)(6). 2 In a pair of The district 1 court ruled that OPM could withhold all employee names, but 2 that only some of the duty-station information could be 3 withheld. 4 conclude that OPM was entitled to withhold all of the duty- 5 station information. We agree that the names could be withheld, but 6 7 8 9 BACKGROUND Plaintiffs Susan Long and David Burnham are professors at Syracuse University and co-directors of the Transactional 10 Records Access Clearinghouse ( TRAC ), a data-gathering, 11 research, and distribution organization affiliated with the 12 university. 13 and oversight institutions with comprehensive information 14 about federal staffing, spending, and the enforcement 15 activities of the federal government. 16 TRAC s stated purpose is to provide the public J.A. 188. Among other data-collection techniques, plaintiffs use 17 FOIA to get records and data from OPM s Central Personnel 18 Data File ( CPDF ), a database of approximately 100 data 19 elements, or fields, concerning the federal civilian 20 workforce.1 OPM s static files have information about 1 The CPDF includes records for almost every employee of the executive branch, except those that work in a few security agencies, the White House, the Office of the Vice President, and the Tennessee Valley Authority. 3 1 federal employees at a particular moment in time; its 2 dynamic files record personnel actions over intervals. 3 Covered agencies submit quarterly data to OPM, which stores 4 it in the CPDF. 5 CPDF s other fields include salary history, duty station, 6 occupation, work schedule, and veteran status. 7 In addition to each employee s name, the For a time, OPM provided plaintiffs with all the data 8 fields contained in the CPDF, including those associated 9 with the civilian workforce of the Department of Defense 10 ( DoD ).2 11 records for that year. 12 plaintiffs it would be applying a newly-implemented data- 13 release policy to their request. 14 policy is that OPM redacted the names and duty-station 15 information for over 800,000 federal employees, the majority 16 of whom were civilian DoD employees.3 17 information withheld includes six data elements Near year-end 2004, plaintiffs requested CPDF In February 2005, OPM told The upshot of this new The duty-station 2 There are some exceptions to this policy. For example, beginning with its response to plaintiffs request for the 1996 CPDF file, OPM withheld name and duty-station information for all employees in the Bureau of Alcohol, Tobacco, and Firearms. 3 Plaintiffs requests and OPM s disclosures took place in several iterations over several years, but these complexities are irrelevant to the legal issues before us. 4 1 (organizational component code, duty post, bargaining unit, 2 core-based statistical area, combined statistical area, and 3 locality pay), which together disclose only the city and 4 county where the employee works, but not the street address. 5 For some employees whose duty-station information was 6 redacted, OPM nevertheless indicated whether they worked 7 within the Washington, D.C. metropolitan area. 8 9 OPM withheld names and at least some duty-station information for [I] all employees in what it deemed to be 10 five sensitive federal agencies: Bureau of Alcohol, 11 Tobacco, and Firearms ( ATF ), Drug Enforcement Agency 12 ( DEA ), DoD, Secret Service, and United States Mint; and 13 [ii] for those employees across all federal agencies who are 14 in twenty-four sensitive occupation categories: e.g., 15 police, criminal investigating, nuclear engineering, game 16 law enforcement.4 4 The twenty-four occupations are ATF inspection, border patrol agent, compliance inspection & support, correctional officer, criminal investigating, custom patrol officer, customs & border protection, customs & border protection interdiction, customs inspection, game law enforcement, general inspection, general investigating, general national resources & biological science, immigration inspection, intelligence, intelligence clerk/aide, internal revenue officer, IRS agent, nuclear engineering, nuclear materials courier, plant protection & quarantine, police, U.S. marshal, and hearings & appeals. 5 1 The policy change was security-related. According to 2 the affidavit of OPM s FOIA officer, Gary Lukowski, the 3 events of September 11, 2001--particularly the attack on the 4 Pentagon--and a subsequent anthrax attack caused OPM to 5 review the vulnerability of the federal workforce to 6 harassment and attack. 7 motivated by a similar change in policy undertaken by the 8 DoD in the immediate aftermath of September 11th.5 9 attributes its change in policy to an outcry by a number of OPM s new policy was in part OPM also 10 individuals and federal agencies in response to a 2004 11 Washington Post feature that provided online access to the 12 CPDF, which allowed anyone to search for federal employees 13 by name, federal agency, or locality. 14 To justify withholding the names and duty-station 15 information, OPM invoked Exemption 6 of FOIA, which protects 16 from disclosure personnel and medical files and similar 17 files the disclosure of which would constitute a clearly 18 unwarranted invasion of personal privacy. 5 5 U.S.C. § The DoD directed OPM not to release any personnel files of DoD employees in response to requests under FOIA, but instead to refer requesting parties to the DoD directly. Accordingly, in its initial responses to plaintiffs, OPM withheld all data on DoD employees and directed plaintiffs to seek it directly from the DoD. Eventually, OPM, with DoD s consent, released the DoD data without names or duty stations. 6 1 552(b)(6). 2 decisions through OPM. 3 Plaintiffs unsuccessfully grieved some of the This suit seeks disclosure of the information withheld. 4 On cross-motions for summary judgment, the district court 5 ruled that OPM properly redacted the names and duty stations 6 for federal employees in the five sensitive agencies and 7 four of the sensitive occupations: general national 8 resources and biological science; plant protection and 9 quarantine; hearings and appeals; and border patrol. See 10 Long v. Office of Pers. Mgmt. (Long I), No. 05 Civ. 1522 11 (NAM/DEP), 2007 WL 2903924, at *22 (N.D.N.Y. Sept. 30, 12 2007). 13 also properly withheld the names of federal employees in the 14 remaining occupations, see Long v. Office of Personnel 15 Mgmt. (Long II), No. 05 Civ. 1522 (NAM/DEP), 2010 WL 681321, 16 at *15 (N.D.N.Y. Feb. 23, 2010), but that Exemption 6 did 17 not allow withholding of duty-station information for the 18 remaining sensitive occupations, id. at *17. 19 cross-appealed. After further briefing, the court ruled that OPM 20 21 22 7 The parties 1 DISCUSSION 2 I 3 FOIA was enacted to promote honest and open 4 government, Grand Cent. P ship, Inc. v. Cuomo, 166 F.3d 5 473, 478 (2d Cir. 1999), and to ensure public access to 6 information created by the government in order to hold the 7 governors accountable to the governed, Tigue v. U.S. Dep t 8 of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (internal 9 quotation marks omitted). It strongly favors a policy of 10 disclosure and requires the government to disclose its 11 records unless its documents fall within one of the 12 specific, enumerated exemptions set forth in the Act. 13 Nat l Council of La Raza v. U.S. Dep t of Justice, 411 F.3d 14 350, 355 (2d Cir. 2005) (internal citation omitted). 15 exemptions are construed narrowly, and a court is to resolve 16 all doubts in favor of disclosure. 17 166 F.3d at 478. 18 establishing that any claimed exemption applies. 19 Council of La Raza, 411 F.3d at 356. 20 FOIA See Grand Cent. P ship, The government bears the burden of Nat l FOIA s Exemption 6 permits federal agencies to withhold 21 from disclosure personnel and medical files and similar 22 files the disclosure of which would constitute a clearly 8 1 unwarranted invasion of personal privacy. 5 U.S.C. § 2 552(b)(6). 3 withhold information pursuant to Exemption 6, we first 4 determine whether the information is kept in personnel [or] 5 medical files [or] similar files. 6 State v. Wash. Post Co., 456 U.S. 595, 598-601 (1982). 7 so, we balance the public s need for the information 8 against the individual s privacy interest to determine 9 whether the disclosure of the names would constitute a To determine whether a federal agency may Id.; see U.S. Dep t of If 10 clearly unwarranted invasion of personal privacy. 11 v. FBI, 432 F.3d 78, 86 (2d Cir. 2005) (quoting 5 U.S.C. § 12 552(b)(6)); accord U.S. Dep t of State v. Ray, 502 U.S. 164, 13 175 (1991). 14 Wood In resolving summary judgment motions in a FOIA case, a 15 district court proceeds primarily by affidavits in lieu of 16 other documentary or testimonial evidence, as we have 17 explained: 18 19 20 21 22 23 24 25 26 27 In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA. Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain 9 1 2 3 4 5 6 7 8 9 10 11 12 the agency s burden. Affidavits submitted by an agency are accorded a presumption of good faith; accordingly, discovery relating to the agency s search and the exemptions it claims for withholding records generally is unnecessary if the agency s submissions are adequate on their face. When this is the case, the district court may forgo discovery and award summary judgment on the basis of affidavits. Carney v. U.S. Dep t of Justice, 19 F.3d 807, 812 (2d Cir. 13 1994) (internal quotation marks, footnote, and citations 14 omitted). 15 district court was deficient. 16 the same analysis for each category of withheld information, 17 reviewing the district court s judgment de novo, see Nat l 18 Council of La Raza, 411 F.3d at 355.6 Neither party contends that the record in the Accordingly, we now undertake 19 20 21 22 23 II The district court ruled that the names of the federal employees in the five sensitive agencies and twenty-four 6 In a similar case, the withholding of names and duty-station information by OPM was ruled justified by the United States District Court for the District of Columbia. See Ctr. for Pub. Integrity v. U.S. Office of Pers. Mgmt., No. 04-1274(GK), 2006 WL 3498089, at *6 (D.D.C. Dec. 4, 2006). That court considered only whether Exemption 6 justified OPM s withholding of names together with duty-station information; it did not consider whether withholding duty-station information decoupled from employee names was justified by Exemption 6. Id. 10 1 sensitive occupations were properly withheld because OPM had 2 demonstrated that disclosure of employee names could subject 3 them to harassment or attack. 4 *15-19; Long II, 2010 WL 681321, at *16-17. 5 that the public interests weighing in favor of disclosure 6 are few and weak, and are clearly outweighed by the 7 employees privacy interests. Long I, 2007 WL 2903924, at We conclude 8 9 10 A Plaintiffs contend that federal employees interest in 11 their names is [m]inimal or [n]on-[e]xistent, and cannot 12 outweigh the public interest in disclosure.7 13 Br. 21.) 14 requires that we first determine whether disclosure of the 15 files would compromise a substantial, as opposed to de 16 minimis, privacy interest, because if no significant privacy 17 interest is implicated FOIA demands disclosure. 18 Media LLC v. Dep t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 19 2008) (internal quotation marks and alterations omitted)); (Appellants The balancing analysis for FOIA Exemption 6 7 Multi Ag There is no real dispute that the CPDF data (with names included) meets the statutory category of personnel and medical files and similar files, 5 U.S.C. § 552(b)(6), because the CPDF contains quintessential personnel information. Plaintiffs do not argue otherwise. 11 1 accord Fed. Labor Relations Auth. v. U.S. Dep t of Veterans 2 Affairs, 958 F.2d 503, 509 (2d Cir. 1992). 3 low: FOIA requires only a measurable interest in privacy to 4 trigger the application of the disclosure balancing tests. 5 Fed. Labor Relations Auth. v. U.S. Dep t of Veterans 6 Affairs, 958 F.2d at 510. 7 The analysis is context specific. But the bar is Names and other 8 identifying information do not always present a significant 9 threat to an individual s privacy interest. Wood, 432 F.3d 10 at 88 (emphasis added); accord Ray, 502 U.S. at 176 n.12 11 ( We emphasize, however, that we are not implying that 12 disclosure of a list of names and other identifying 13 information is inherently and always a significant threat to 14 the privacy of the individuals on the list. ). [W]hether 15 disclosure of a list of names is a significant or a de 16 minimis threat depends upon the characteristic(s) revealed 17 by virtue of being on the particular list, and the 18 consequences likely to ensue. 19 (internal quotation marks and alterations omitted). 20 Ray, 502 U.S. at 176 n.12 It is not uncommon for courts to recognize a privacy 21 interest in a federal employee s work status (as opposed to 22 some more intimate detail) if the occupation alone could 12 1 subject the employee to harassment or attack. 2 recognized, for example, a privacy interest in the names of 3 employees who worked on the regulatory approval of a 4 controversial drug, see Judicial Watch, Inc. v. FDA, 449 5 F.3d 141, 152-53 (D.C. Cir. 2006), and of law enforcement 6 agents who participated in an investigation, see Wood, 432 7 F.3d at 86-89; Nix v. United States, 572 F.2d 998, 1006 (4th 8 Cir. 1978). 9 Courts have The record on appeal persuades us that the federal 10 employees in both the sensitive agencies and the sensitive 11 occupations have a cognizable privacy interest in keeping 12 their names from being disclosed wholesale. 13 the Director of Administration and Management at DoD attests 14 that withholding of employee names is one of many security 15 measures instituted after the attack on the Pentagon on 16 September 11th to make it as difficult as possible for 17 adversaries to collect valuable information that will enable 18 them to carry out attacks on DoD personnel. 19 Moreover, disclosure of names could permit the targeting of 20 individual federal employees and their families outside the 21 workplace. 22 the agencies deal with national security, homeland security, Michael Donley, J.A. 328. Lukowski, OPM s FOIA officer, explains: many of 13 1 or law enforcement, and the mission and nature of the work 2 performed by those agencies rendered not only individuals in 3 specific occupations within the agencies, but any employee 4 in the agency, vulnerable to harassment or attack. 5 72. 6 large, federal employees in the sensitive agencies and 7 occupations face an increased risk of harassment or attack. 8 J.A. OPM s submissions sufficiently demonstrate that, by and Plaintiffs interpose two further objections. First, 9 they point out that, under law developed in another circuit, 10 Exemption 6 is not a blanket exemption, Baez v. U.S. Dep t 11 of Justice, 647 F.2d 1328, 1339 (D.C. Cir. 1980), or a 12 categorical rule, Armstrong v. Exec. Office of the 13 President, 97 F.3d 575, 582 (D.C. Cir. 1996), protecting the 14 names of mine-run federal law enforcement officers. 15 case implies that employees have no privacy interest in 16 their names. 17 the public had no interest in obtaining the names at issue, 18 and implied that employees enjoy at least a minimal privacy 19 interest in their names. 20 ruling in Armstrong is that the Exemption 6 inquiry does not 21 end whenever a privacy interest has been identified, but 22 that the privacy interest must be weighed against the 23 public s interest in disclosure. 24 82. Neither Baez held that names could be withheld because See Baez, 647 F.2d at 1339. 14 The Armstrong, 97 F.3d at 581- 1 Second, plaintiffs challenge the withholding of 2 information by category of employee, rather than record-by- 3 record. 4 millions upon millions of data elements. 5 require an agency to mobilize its full resources for 6 compliance with FOIA requests. 7 considerably smaller amounts of records have been sought, 8 withholding based upon general characteristics of classes of 9 people or employees has been found compliant. This argument is not serious. Plaintiffs seek FOIA does not In cases in which See, e.g., 10 U.S. Dep t of Def. v. Fed. Labor Relations Auth., 510 U.S. 11 487, 501 (1994) (sustaining withholding of names and contact 12 information for entire class of employees without individual 13 inquiry); Nat l Ass n of Retired Fed. Emps. v. Horner, 879 14 F.2d 873, 879 (D.C. Cir. 1989) (recognizing privacy interest 15 in list of names of retired and disabled federal employees 16 without individual inquiry). 17 18 19 B The privacy interest must be weighed against the public 20 interest that would be advanced by disclosure. 21 Labor Rel. Auth. v. U.S. Dep t of Veterans Affairs, 958 F.2d 22 at 510 ( [O]nce a more than de minimis privacy interest is 15 See Fed. 1 implicated the competing interests at stake must be balanced 2 in order to decide whether disclosure is permitted under 3 FOIA. ). 4 the public understanding of the operations or activities of 5 the government. 6 for Freedom of Press, 489 U.S. 749, 775 (1989); Bibles v. 7 Or. Natural Desert Ass n, 519 U.S. 355, 355-56 (1997) 8 (identifying relevant public interest as extent to which 9 disclosure of the information sought would shed light on an The only public interest cognizable under FOIA is U.S. Dep t of Justice v. Reporters Comm. 10 agency s performance of its statutory duties or otherwise 11 let citizens know what their government is up to (internal 12 quotation marks and alterations omitted)). 13 In many contexts, federal courts have observed that 14 disclosure of individual employee names tells nothing about 15 what the government is up to. 16 Auth. v. U.S. Dep t of Veterans Affairs, 958 F.2d at 512; 17 Schwarz v. U.S. Dep t of Treasury, 131 F. Supp. 2d 142, 150 18 (D.D.C. 2000) ( Disclosure of [names of federal 19 employees] . . . would not contribute to the public 20 understanding of government functions. ); Voinche v. FBI, 21 940 F. Supp. 323, 330 (D.D.C. 1996) ( There is no reason to 22 believe that the public will obtain a better understanding 16 See Fed. Labor Relations 1 of the workings of various agencies by learning the 2 identifies of [federal employees]. ). 3 a possible public interest in identifying specific federal 4 employees; but that the interest is slight, and in each case 5 was substantially outweighed by the threat to the employee s 6 personal privacy. 7 under Exemption 6, redaction of the names of low-level FBI 8 employees who participated in investigation because public 9 interest was insufficiently furthered relative to the 10 potential for harassment); Judicial Watch, 449 F.3d at 11 152-54 (permitting FDA to withhold pursuant to Exemption 6 12 names of employees and outsiders who worked on regulatory 13 approval of abortion pill ); Fed. Labor Relations Auth. v. 14 U.S. Dep t of Commerce, 962 F.2d 1055, 1060 (D.C. Cir. 1992) 15 (permitting agency to keep private under Exemption 6 list of 16 employees who received positive commendation). 17 Other cases allow for See Wood, 432 F.3d at 88-89 (authorizing, Plaintiffs posit a strong public interest in knowing 18 employee names because Government work is done by people. 19 But if that were weighed in the balance of the Exemption 6 20 inquiry, little would be left to FOIA s protection for 21 personal privacy. 22 Dep t of Veterans Affairs, 958 F.2d at 512 ( Compelling See Fed. Labor Relations Auth. v. U.S. 17 1 disclosure of personal information, that has no relationship 2 to an agency s activities, on so attenuated a basis would 3 inevitably result in the disclosure of virtually all 4 personal information, thereby effectively eviscerating the 5 protections of privacy provided by Exemption 6. ). 6 the public has an interest in the identity of federal 7 workers, and to what extent, depends on circumstances, 8 including whether the information sought sheds light on 9 government activity. Whether See Wood, 432 F.3d at 88; Perlman v. 10 U.S. Dep t of Justice, 312 F.3d 100, 107 (2d Cir. 2002), 11 vacated, 541 U.S. 970 (2004), reinstated after remand, 380 12 F.3d 110 (2d Cir. 2004). 13 Plaintiffs point to ways in which they (or the media) 14 have used the names of federal employees obtained from the 15 CPDF to inform themselves about what their government is up 16 to. 17 at which individual immigration judges grant and deny asylum 18 requests; (2) high turnover rates at particular agencies; 19 (3) agency employees who wrongfully benefit from agency 20 programs; and (4) access to employees in order to uncover 21 agency malfeasance. Specifically, they cite (1) disparities in the rates (Appellants Br. 34-37.) 22 18 1 Such inquiries may be interesting, but they do not 2 illustrate how the disclosure of names serves the purposes 3 of FOIA. 4 immigration judges are available even though the judges 5 names are withheld, because OPM has now replaced employee 6 names with unique identifiers.8 7 may be useful for investigating the behavior of individual 8 employees; but courts have been skeptical of recognizing a 9 public interest in this derivative use of information, First, the disposition data for individual Second, an employee s name 10 which is indirect and speculative. See Associated Press v. 11 U.S. Dep t of Def., 554 F.3d 274, 292 (2d Cir. 2009) ( We 12 emphasize that the focus, in assessing a claim under 13 Exemption 6, must be solely upon what the requested 14 information reveals, not upon what it might lead to. 15 (internal quotation marks omitted)); see also Ray, 502 U.S. 16 at 180 (Scalia, J., concurring) ( [I]t is unavoidable that 17 the focus, in assessing a claim under Exemption 6, must be 18 solely upon what the requested information reveals, not upon 19 what it might lead to. ). But see Painting & Drywall Work 8 The same is true for plaintiffs assertion that access to employee names permitted TRAC to trace[] a large drop in the enforcement of wildlife laws to the retirement of one employee. (Appellants Br. 35.) The drop could just as easily be attributed to the single individual by way of the unique employee identifier. 19 1 Pres. Fund, Inc. v. Dep t of Hous. and Urban Dev., 936 F.2d 2 1300, 1303 (D.C. Cir. 1991) (indicating that derivative use 3 of information is cognizable under FOIA, but in that case 4 clearly outweighed by privacy interests). 5 Also discounted is the interest in identifying a 6 federal employee by name in order to make contact or conduct 7 interviews. 8 U.S. Forest Serv., 524 F.3d 1021, 1028 (9th Cir. 2008) 9 (identity of forest service employees could be withheld See Forest Serv. Emps. for Envtl. Ethics v. 10 where primary purpose of identifying employees was to 11 contact employees directly to obtain information). 12 use is an example of the derivative theory of public 13 interest, and actually facilitates the invasion of the 14 employee s personal privacy. 15 Mkt. Recovery Fund v. U.S. Dep t of Air Force, 26 F.3d 1479, 16 1485 (9th Cir. 1994) ( Any additional public benefit the 17 requesters might realize through [contact with employees] is 18 inextricably intertwined with the invasions of privacy that 19 those contacts will work. ). 20 contact government employees in the hopes of uncovering 21 malfeasance does not serve FOIA s objectives. Such a See Painting Indus. of Haw. The use of personnel files to 22 20 1 C 2 Where public interest favoring disclosure is no more 3 than minimal, a lesser privacy interest suffices to outweigh 4 it. 5 510 U.S. at 500. 6 by a pair of cases in which unions wanted employee contact 7 information in order to tell them about union activities. 8 While the privacy interest was small, no countervailing 9 public interest at all was cognizable under Exemption 6. See U.S. Dep t of Def. v. Fed. Labor Relations Auth., This reciprocal principle is illustrated 10 See id. at 502 (holding that employees home addresses need 11 not be disclosed to unions because such disclosure did not 12 further FOIA s purpose of open government); Fed. Labor 13 Relations Auth. v. U.S. Dep t of Veterans Affairs, 958 F.2d 14 at 513 (same). 15 Plaintiffs have identified no appreciable public 16 interest militating in favor of the wholesale disclosure of 17 names of employees in the sensitive agencies and sensitive 18 occupations. 19 privacy interest in order to clearly outweigh[] the 20 nonexistent public interest. 21 Labor Relations Auth., 510 U.S. at 500 ( Because a very 22 slight privacy interest would suffice to outweigh the OPM therefore need not identify any compelling See U.S. Dep t of Def. v. Fed. 21 1 relevant public interest, we need not be exact in our 2 quantification of the privacy interest. 3 present purposes to observe that the employees interest in 4 nondisclosure is not insubstantial. ). 5 that Exemption 6 permits OPM to withhold the names of 6 employees working in the sensitive agencies and sensitive 7 occupations. It is enough for Accordingly, we hold 8 9 III 10 The remaining issue is whether Exemption 6 permits OPM 11 to withhold duty-station information even after employee 12 names have been redacted. 13 opinion considered the duty-station information together 14 with employee names, and found that both were properly 15 withheld for the sensitive agencies and the four sensitive 16 occupations that it considered. 17 *19. 18 sensitive occupations in Long II, it considered duty-station 19 information apart from names and found that OPM has failed 20 to show more than a de minimis privacy interest in the . . . 21 geographic location of federal employees, Long II, 2010 WL The district court s first Long I, 2007 WL 2903924, at When the district court turned to the remaining twenty 22 1 681321, at *17.9 2 that OPM has demonstrated that employees possess a 3 cognizable privacy interest in their duty-station records 4 de-linked from their names, and that it clearly outweighs 5 any public interest that might be served by disclosure. Although the issue is close, we conclude 6 7 8 9 A Plaintiffs argue that federal employees have no privacy interest in their duty-station information once their names 10 have been redacted.10 11 exemptions to FOIA are broadly construed. 12 v. U.S. Dep t of Justice, 549 F.3d 62, 65 (2d Cir. 2008). 13 Exemption 6 extends to personnel and medical files and 14 similar files the disclosure of which would constitute a 15 clearly unwarranted invasion of personal privacy. [P]rivacy interests protected by the Associated Press 5 U.S.C. 9 This portion of the district court s reasoning substantially undermines its earlier finding that OPM could redact duty-station information for the five sensitive agencies and four of the sensitive occupations. However, it did not expressly revisit its earlier order, and we will assume that it was left intact. In any event, our review is de novo. See Nat l Council of La Raza, 411 F.3d at 355. 10 Plaintiffs also posit that employee duty-station information does not constitute personnel and medical files and similar files referenced in Exemption 6. 5 U.S.C. § 552(b)(6). The redaction of names, however, does not change the nature of the files that plaintiffs seek--the CPDF is still a collection of personnel records. 23 1 § 552(b)(6). 2 understandings of privacy encompass the individual s control 3 of information concerning his or her person. 4 Comm., 489 U.S. at 763; Fed. Labor Relations Auth. v. U.S. 5 Dep t of Veterans Affairs, 958 F.2d at 510 ( [T]he concept 6 of privacy is not an abstract concept, but rather a 7 valuable--and, in the present context, elastic--right whose 8 boundaries are delineated by the type of information sought 9 and by the persons requesting it. ). 10 [B]oth the common law and the literal Reporters The records sought by plaintiffs are personal in the 11 sense that they are specific to individuals. Even if 12 employee names are replaced by anonymous identifiers, every 13 employee entry contains dozens of items of personal 14 information about the individual. 15 information reveals job classification, pay, veteran status, 16 and work schedule. 17 because it is wholly information concerning his or her 18 person. 19 child s play for a determined researcher to deduce a name 20 from the descriptive data if the researcher is looking for 21 anyone specific. The current and career This data is personal to the employee Reporters Comm., 489 U.S. at 763. 22 24 And it would be 1 Some duty-station information redacted by OPM was at 2 one time freely available. But it is now private 3 nevertheless in the sense that it is intended for or 4 restricted to the use of a particular person or group or 5 class of persons: not freely available to the public. 6 489 U.S. at 763-64 (quoting Webster's Third New 7 International Dictionary 1804 (1976)). 8 the subject, which we accord a presumption of good faith, 9 see Carney, 19 F.3d at 812, set forth in reasonable detail 10 that OPM (and DoD) now preserve the privacy of duty-station 11 information pursuant to comprehensive data security and 12 safety plans. Id., OPM s affidavits on 13 Plaintiffs contend that because the withheld records 14 do not provide work addresses . . . the potential harasser 15 or attacker would not be able to locate the employee. 16 (Appellants Br. 59-60.) 17 works for a particular agency or in a particular role, in a 18 particular locality, is often enough to pinpoint the street 19 address of the workplace. 20 at 43. 21 22 But knowledge that an employee Plaintiffs concede as much. Id. Redaction of names goes a long way toward protecting against surveillance and publicity those things that are 25 1 generally treated as nobody else s business. 2 Cent. P ship, 166 F.3d at 485-86. 3 the protection afforded by Exemption 6 is to protect 4 individuals physical safety. 5 at 152-53. 6 from disclosure of the duty-station information. 7 See Grand But a primary reason for See Judicial Watch, 449 F.3d That is the risk that the OPM attests will arise OPM s affidavits set forth how terrorists and others 8 could derive specific work addresses from the duty-station 9 information. Plaintiffs contend that this risk of harm is 10 not personal because an individual cannot be identified from 11 disclosure of duty-station information, and therefore any 12 harm would be directed at the entire federal agency (or a 13 particular office location), not the individual employee. 14 Even if an individual cannot be identified from the duty- 15 station information, the risk of harm to that individual is 16 not abated by anonymity. 17 wrongdoers in carrying out an attack, it would be Jane 18 Doe . . . , [a] real person[], who would be harmed. 19 (Appellee s Br. 80.) 20 cognizable personal privacy interest in safeguarding the 21 disclosure of their duty-station information when a risk of 22 such harm is present. If the disclosure assisted Federal employees thus have a 26 1 Plaintiffs also label the risk of harm as speculative, 2 but the record satisfies us that the risk is no more 3 attenuated or contingent than risks of harassment or attack 4 that have been recognized in FOIA cases dealing with federal 5 law enforcement officers. 6 Halpern v. FBI, 181 F.3d 279, 297 (2d Cir. 1999). 7 See, e.g., Wood, 432 F.3d at 88; Risk of physical attack distinguishes this case from 8 cases in which the redaction of names has been found 9 sufficient to secure other privacy interests. See Ray, 502 10 U.S. at 175-176 (once names were redacted from interviews 11 with Haitians attempting to enter United States, they had 12 only a de minimis privacy interest in those records); ACLU, 13 543 F.3d 59, 85-86 (2d Cir. 2008), vacated on other grounds, 14 130 S. Ct. 777 (2009) (detainees whose abuse was depicted in 15 photographs had no more than de minimis privacy interest 16 because all identifying information had been redacted). 17 Here, as discussed above, redaction of employee names 18 does not allay the threat of harassment or attack of federal 19 employees. 20 more than de minimis privacy interest in safeguarding the 21 disclosure of their duty-station information when a risk of We therefore hold that federal employees have a 27 1 such harm is present.11 2 3 4 B It remains to weigh the employees privacy interests 5 against the public s interest in the duty-station 6 information. 7 plaintiffs is an interest in seeing where the federal 8 government deploys its personnel. 9 might shed some dim, diffused light on what the Government The chief public interest identified by Although this information 10 is up to, Reporters Comm., 489 U.S. at 780 (internal 11 quotation marks omitted), the number of federal employees 12 here and there is a rough data point that imparts virtually 13 nothing about the function of the federal government. 11 The parties disagree about whether the duty-station information should be treated as a whole, or as separate data fields in the CPDF: organizational component, post of duty, bargaining unit, core-based statistical area, combined statistical area, and locality pay area. Organizational component codes are 18-digit codes, a portion of which indicates the employees place within the hierarchy of the agency, and a portion of which might indicate where the employee is geographically located. Plaintiffs contend that organizational components are different because they primarily tell where an employee fits within an organization s overall structure, and only sometimes contain geographic information as well. However, OPM has sufficiently shown that, because organizational codes are unique to each agency and frequently changing, there is no feasible way for it to segregate those that contain geographic information from those that do not, or to redact the portion of the code that contains the geographic information. 28 1 OPM has identified other sources from which plaintiffs 2 could obtain much of the information they seek. That 3 further reduces the public interest, such as it is. 4 U.S. Dep t of Def. Dep t of Military Affairs v. Fed. Labor 5 Relations Auth., 964 F.2d 26, 29-30 (D.C. Cir. 1992) 6 (recognizing that alternative sources of information 7 available that could serve the public interest in 8 disclosure diminish public interest value of disclosure). 9 For example, plaintiffs present a hypothetical comparison of See 10 staffing levels in the Federal Emergency Management Agency 11 before and after Hurricane Katrina; but OPM points out that 12 multiple, comprehensive reports exist on the subject.12 13 Finally, the duty-station information is on a 14 comprehensive computerized database that is vulnerable to 15 analysis and manipulation by persons seeking to identify 16 targets for violence, or to increase casualties. 17 vigilance is appropriate in cases involving computerized 18 databases. Heightened See Reporters Comm., 489 U.S. at 766-67 (citing 12 OPM cites two reports, one prepared by The White House, and one prepared by FEMA itself. See The Federal Response to Hurricane Katrina: Lessons Learned (2006), available at http://georgewbushwhitehouse.archives.gov/reports/katrina-lessons-learned; A Performance Review of FEMA s Disaster Management Activities in Response to Hurricane Katrina, OIG-06-32 (2006), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-32_Mar06.pdf. 29 1 the Privacy Act of 1974 for the proposition that Congress 2 basic policy concern regarding the implications of 3 computerized data banks for personal privacy is certainly 4 relevant ). 5 The threat cited by OPM is not specific as to location 6 or individual. But plaintiffs seek records of millions of 7 employees who work in dozens of agencies and hundreds of 8 occupations. 9 individual employee, office, or facility included in the It is not feasible to gauge the threat to each 10 CPDF. Since the defendant agency has already demonstrated 11 that employees will be put at risk by disclosure, this 12 uncertainty has weight in the balance struck by Exemption 6. 13 Accordingly, we hold that OPM has demonstrated that 14 employee privacy concern about the release of their duty- 15 station information clearly outweighs the public interests 16 identified by plaintiffs. 17 18 19 CONCLUSION For the foregoing reasons, we AFFIRM the judgment of 20 the district court insofar as it ruled that FOIA Exemption 6 21 permitted OPM to withhold all of the names at issue and some 22 of the duty-station information, but REVERSE insofar as it 23 ruled that duty-station information for twenty sensitive 24 occupations must be disclosed. 30
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