Cook v. Nat'l Archives & Records Admin.

• Decision Date: 08 July 2014
• Docket Number: No. 13–1228–cv.,13–1228–cv.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: John COOK, Plaintiff–Appellant, v. NATIONAL ARCHIVES & RECORDS ADMINISTRATION, Defendant–Appellee.

758 F.3d 168

John COOK, Plaintiff–Appellant,

v.NATIONAL ARCHIVES & RECORDS ADMINISTRATION, Defendant–Appellee.

No. 13–1228–cv.

United States Court of Appeals,Second Circuit.

Argued: March 10, 2014.

Decided: July 8, 2014.

Maxwell S. Mishkin, Law Student (David A. Schulz, Supervising Attorney, and Joshua S. Weinger, Law Student, on the brief), Media Freedom & Information Access Clinic, Yale Law School, New Haven, CT, and Charles S. Sims, Proskauer Rose LLP, New York, N.Y., for Plaintiff–Appellant.¹

David S. Jones, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Defendant–Appellee.

Before: LEVAL, POOLER, and CHIN, Circuit Judges.

CHIN, Circuit Judge:

Plaintiff-appellant John Cook, a reporter, brought suit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of records held by defendant-appellee the National Archives and Records Administration (“NARA”). Cook seeks to obtain records of requests for archived presidential and vice-presidential materials submitted to NARA by or on behalf of former President George W. Bush and former Vice–President Richard B. Cheney. The principal issue presented is whether the records fall within FOIA's Exemption 6, which permits the withholding of “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 district court (Kevin T. Duffy, Judge ) granted summary judgment to NARA, holding that Exemption 6 applies.

We conclude that the records are protected by Exemption 6. Archivists and librarians have long refrained from disclosing information about who requests materials from their collections and what materials they are seeking, without the requesting party's consent. These requests of the former President and Vice–President at issue here, made for purposes of their private research, perhaps for preparation of memoirs, reveal their preliminary thinking and personal matters. The disclosure of this information would indeed “constitute a clearly unwarranted invasion of personal privacy.” Accordingly, we affirm.

BACKGROUND

I. NARA's Maintenance of Presidential Records

In passing the Presidential Records Act of 1978 (the “PRA”), Congress made presidential and vice-presidential records the property of the United States, ending the historic practice of presidents taking ownership of records created during their administrations. 44 U.S.C. § 2202; see Nixon v. United States, 978 F.2d 1269, 1277 n. 19, 1284 (D.C.Cir.1992). Under the PRA, “Presidential records” include:

documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

44 U.S.C. § 2201(2). The PRA entrusts these presidential records to NARA. Id. § 2203(f). Vice-presidential records are treated similarly. Id. § 2207.

Former President Bush's records are housed at the NARA-controlled George W. Bush Presidential Library in Dallas, Texas, and former Vice–President Cheney's at NARA's Washington, D.C. archives. Like the other historical records it maintains, NARA makes these records available to the public for research. Id. § 2203(f)(1); 36 C.F.R. § 1254.1(b).

There are limits on access. Presidential and vice-presidential records are not publicly available during a period of up to five years while NARA processes and organizes records it receives. 44 U.S.C. § 2204(b)(2)(A)-(B). Before leaving office, a president or vice-president may also designate a period of up to twelve years during which certain records will be unavailable to the public. Id. § 2204(a).

During periods when the records are not yet available to the public, former presidents and vice-presidents, or their designated representatives, may access the archived records of their respective administrations by submitting special access requests. Id. § 2205(3). The incumbent president, the judiciary, and Congress may also request archived records of prior administrations, but only in connection with their official duties. Id. § 2205(2). At the Bush Library, once special access requests are received—often by email and sometimes orally—a paper folder is created reflecting the request. The requests “are logged by date of receipt, and reveal the identity of the specific requestor (an authorized representative of former President George W. Bush) and the specific item or information sought.” J.A. at 113–14 ¶ 16.

NARA maintains that it treats the special access requests received from former officials or their representatives “in a manner wholly consistent with how [it] handle[s] typical researcher requests in terms of the privacy and confidentiality afforded to any requestors.” Id. at 115 ¶ 21. As set forth in its staff manual, NARA's general policy on the disclosure of researcher requests is as follows: “Unless required by law, staff members will not reveal the subject of a researcher's project or the specificitems provided to a researcher without the express consent of the researcher.” Id. at 116 ¶ 21.

II. Cook's FOIA Request and NARA's Response

By letter dated October 21, 2010, Cook submitted a FOIA request to NARA seeking: (1) “copies of all requests for access to records received by the [Bush Library] since February 1, 2009”; (2) “copies of all requests for access to the records of former Vice–President Dick Cheney received by NARA staff since February 1, 2009”; and (3) “any subsequent correspondence regarding those requests, with the exclusion of copies of records governed by the [PRA].” Id. at 19. Cook did not seek the Bush/Cheney records themselves; he only sought NARA's documentation of the requests for the records. His stated purpose for seeking these records was “to gain insight into the way in which the former President and Vice President have chosen to shape the public's perception of their time in office.” J.A. at 8 ¶ 5.

NARA responded by letter dated December 1, 2010. The agency explained that requests for access to the Bush/Cheney records came in the form of either (a) special access requests submitted by current and former officials or (b) public FOIA requests. First, with respect to the special access requests, the agency stated: “[NARA] treats these requests as researcher reference requests.... These records include but are not limited to the following categories: correspondence between NARA staff and researchers containing information about the research topic(s), field(s) of interest, identification of requested records, and other information furnished by the researcher.” J.A. at 22. The agency further informed Cook that, because it protects the privacy of researchers, it would withhold the records of the special access requests under FOIA's Exemption 6.

Second, with respect to Cook's FOIA demand for public FOIA requests, NARA indicated that “FOIA requesters are not subject to the same right to privacy as ... researchers.” Id. at 23. Thus, the agency made available to Cook redacted copies of all such FOIA requests, as well as its responses to those requests.²

Cook filed an administrative appeal by letter dated January 3, 2011, protesting NARA's decision to withhold the records of the special access requests. In response, NARA amended its initial decision by letter dated June 3, 2011. The agency distinguished special access requests submitted by the former officials (former President Bush, former Vice–President Cheney, and their designated representatives) from special access requests submitted by current officials (the incumbent President, Congress, and the judiciary). NARA deemed the former officials' special access requests to be “researcher reference requests that have been made [by or] on behalf of private citizens” and thus properly withheld under Exemption 6. Id. at 32. In contrast, NARA deemed the current officials' special access requests to be in furtherance of “official business” and thus not entitled to protection as private researcher reference requests. Id. Accordingly, Cook was permitted access to the current officials' requests, but not the former officials' requests.

Cook filed suit in the district court to challenge NARA's failure to produce the records he requested. The only issue on appeal is NARA's decision with respect to the special access requests of the former officials.

III. Proceedings Before the District Court

In the district court, the parties agreed to narrow Cook's FOIA request to (a) records of the special access requests submitted by former President Bush, former Vice–President Cheney, or their designated representatives; (b) NARA's written responses to the requests; and (c) internal NARA documents memorializing requests that were not in writing. NARA identified 907 such records from the Bush records and 61 from the Cheney records.

NARA maintained that the narrowed records Cook sought were exempt from disclosure under Exemption 6, while retaining the right to assert that other FOIA exemptions apply to certain content within the records. The parties thereafter stipulated that “NARA first will file a motion for summary judgment asserting whatever exemptions NARA contends may properly be asserted on a categorical basis, meaning legal reasons that NARA asserts apply equally to all documents at issue in this action, and to the entirety of each such document.” Id. at 51. They further agreed that if the motion did not resolve the suit in its entirety, NARA would then “be entitled to assert whatever exemptions it contends apply on a non-categorical basis in a second, subsequent...