Cotton v. Adams, Civ. A. No. 91-2827.

Decision Date26 June 1992
Docket NumberCiv. A. No. 91-2827.
Citation798 F. Supp. 22
CourtU.S. District Court — District of Columbia
PartiesCatherine COTTON, Plaintiff, v. Robert MCC. ADAMS, Defendant.

Glen H. Carlson and Diane E. Cafferty of Carlson & Cafferty and Theresa A. Amato, Alan B. Morrison, Patti A. Goldman of the Public Citizen Litigation Group, Washington, D.C., for plaintiff.

Jay B. Stephens, U.S. Atty., District of Columbia, John Bates, Asst. U.S. Atty., and Mark E. Nagle, Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Plaintiff Catherine Cotton seeks "a copy of any and all reports of the Office of Inspector General of the Smithsonian, respecting Andrea G. Snyder, a Senior Buyer at the Smithsonian Institution's Museum Shops, and Kathy Borrus, a Merchandise Manager at the Smithsonian Institution's Museum Shops." Plaintiff's FOIA Request, attached as Exhibit A to Plaintiff's Motion for Summary Judgment. The Defendant Smithsonian Institution has released two of the four documents responsive to the Plaintiff's request.1 The parties have filed cross-motions for summary judgment with respect to the agency's decision to withhold the remaining two documents in their entireties under FOIA Exemptions (b)(6) and (b)(7)(C). See 5 U.S.C. §§ 552(b)(6), (b)(7)(C). The Defendant also petitions the Court to reconsider its determination that the Smithsonian Institution is an "agency" subject to the FOIA. See Order, Cotton v. Adams, Civ. 91-2827 (D.D.C., March 18, 1992) and Transcript of March 18, 1992 Motions Hearing.

ANALYSIS
A. THE DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 18, 1992 ORDER SHALL BE DENIED.

On March 18, 1992, after hearing oral argument and upon consideration of the pleadings, this Court determined that the Smithsonian Institution is subject to the FOIA. See Transcript of March 18, 1992 Motions Hearing; Order, Cotton v. Adams, Civ. 91-2827 (D.D.C., March 18, 1992) (denying Defendant's Motion to Dismiss on this basis). The Defendant's Motion for Reconsideration does not present any new arguments or evidence. Rather, the Defendant reiterates its legal arguments.

Upon reconsideration of the Defendant's claims, the Court does not find any basis to alter its prior decision. As the Plaintiff pointed out, Congress amended the definition of "agency" in § 552(f) of the FOIA in order "to include those entities which may not be considered agencies under section 551(1) of Title 5, U.S.Code,2 but which perform governmental functions and control information of interest to the public." H.R.Rep. No. 876, 93rd Cong., 2d Sess. 8-9 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News at 6267, 6274. The Smithsonian is subject to the FOIA because it performs governmental functions as a center of scholarship and national museum responsible for the safekeeping and maintenance of national treasures. See Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289, 296 (D.C.Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978) (finding that the Smithsonian is an agency for purposes of the Federal Tort Claims Act).

Moreover, as the Court explained at the Hearing, the Smithsonian's structure reveals its status as an authority of the government properly subject to the FOIA. The parties do not dispute that the Smithsonian receives federal funds for many of its operations, that it is chartered by an Act of Congress, and that it has a majority of civil service employees. Furthermore, the Smithsonian receives the benefits of agency status by virtue of the fact that it receives representation from the United States Attorney, absolute governmental immunity in libel suits, and other benefits in property transfers. For all of these reasons, as well as those expressed at the conclusion of the March 18, 1992 Hearing, the Court finds that the Smithsonian is subject to the FOIA.

B. THE GOVERNMENT HAS NOT ESTABLISHED THAT THE RECORDS AT ISSUE WERE COMPILED FOR LAW ENFORCEMENT PURPOSES WITHIN THE MEANING OF FOIA EXEMPTION 7(C).

The Defendant seeks to withhold the two remaining documents3 on the basis of FOIA Exemption 7(C). See Plaintiff's Motion for Summary Judgment at 3; Affidavit of James Douglas, attached to Defendant's Motion for Summary Judgment. Exemption 7(C) permits the Defendant to withhold any records or information compiled for law enforcement purposes if the release of such materials "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). The Defendant "has the burden of showing that the records it seeks to shelter under Exemption 7 were compiled for adjudicative or enforcement purposes." Stern v. FBI, 737 F.2d 84, 88 (D.C.Cir.1984) (citing Pratt v. Webster, 673 F.2d 408, 421 (D.C.Cir.1982)). However, "an agency's general internal monitoring of its own employees to insure compliance with the agency's statutory mandate and regulations is not protected from public scrutiny under Exemption 7." Stern v. FBI, 737 F.2d at 89 (citing Rural Housing Alliance v. U.S. Dept. of Agriculture, 498 F.2d 73 (1974), reh'g denied, 502 F.2d 1179 (D.C.Cir.1974)).4

An agency's investigation of its own employees is for `law enforcement purposes' only if it focuses `directly on specifically alleged illegal acts, illegal acts of particular identified officials, acts which could, if proved, result in civil or criminal sanctions.

Stern v. FBI, supra, (citations omitted). See also Greenpeace, U.S.A., Inc. v. Environmental Protection Agency, 735 F.Supp. 13, 15 (D.D.C.1990) (records pertaining to whether an EPA employee violated EPA regulations concerning appearances at industry-sponsored functions do not qualify as records compiled for law enforcement purposes under Exemption 7).

The Defendant has not established that the two documents at issue were compiled for "law enforcement" purposes and therefore cannot claim the broad protections of Exemption 7(C). The Defendant merely asserts that, because the Inspector General conducted an investigation, the documents responsive to Plaintiff's FOIA requests "plainly must have been compiled for law enforcement purposes." Defendant's Reply to Plaintiff's Opposition, filed May 6, 1992, at 3. The Defendant's assertion of a law enforcement purpose does not comport with the record in this case, however. Although both parties agree that the Inspector General has the ability to conduct investigations as part of the prosecution of a civil or criminal violation, both parties acknowledge that the Inspector General also investigates internal matters concerning agency inefficiency and mismanagement.5 As in Greenpeace v. EPA, supra, the investigation to which these documents pertain could merely involve an alleged violation of the Smithsonian's own rules. Therefore, the fact that the Inspector General conducted an investigation, without more, does not allow the Court to infer that the investigation had a law enforcement purpose and the Court must deny the Defendant's Motion for Summary Judgment on the basis of Exemption 7(C).

C. THE NAMED INDIVIDUALS HAVE AN EXEMPTION 6 PRIVACY INTEREST IN THESE MATERIALS WHICH OUTWEIGHS THE ASSERTED PUBLIC INTEREST IN THEIR RELEASE AND WHICH CANNOT ADEQUATELY BE PROTECTED BY REDACTION.

The Defendant also justifies its decision to withhold the remaining two documents on the basis of FOIA Exemption 6. See Plaintiff's Motion for Summary Judgment at 3; Affidavit of James Douglas, attached to Defendant's Motion for Summary Judgment; Defendant's Reply to Plaintiff's Opposition at 4, n. 1. Exemption 6 allows the government to withhold government records6 if disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In determining whether the release of a government record would result in a "clearly unwarranted invasion of privacy," the Court must first determine whether any privacy interest is at stake and must then balance this privacy interest against any public interest in the release of the requested material. See Dep't of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Nat'l Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873, 874-75 (D.C.Cir.1989), cert. denied, 494 U.S. 1078, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990).7

The individuals named as witnesses or as subjects of an investigation of the Smithsonian Museum Shops have a discernible privacy interest in the Inspector General's memoranda. See Stern v. FBI, 737 F.2d at 91. These individuals have an interest in avoiding the embarrassment and potential harassment that may result from public disclosure of their association with the Inspector General's inquiry. See Dep't of the Air Force v. Rose, supra (significant privacy interest for the subjects of investigations of honor code violations due to potential embarrassment and humiliation); Dunkelberger v. Dep't of Justice, 906 F.2d 779, 782 (D.C.Cir.1990); Heller v. U.S. Marshals Service, 655 F.Supp. 1088, 1091 (D.D.C.1987) (extremely strong interest in protecting employees who cooperate in internal investigation of possible criminal activity by fellow employees). Even if the Inspector General's investigation focused upon seemingly innocuous internal agency matters, an employee has an interest in his or her employment history, including "a general interest in the nondisclosure of diverse bits and pieces of information, both positive and negative, that the government, acting as an employer, has obtained and kept in the employee's personnel file." Stern v. FBI, supra.8

The Court must balance these significant privacy interests against the public interest in disclosure. In evaluating the public interest, the Court must focus "on the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act to open agency action to the...

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