Cameranesi v. U.S. Dep't of Def.

Decision Date08 May 2017
Docket NumberNo. 14-16432,14-16432
Citation856 F.3d 626
Parties Theresa CAMERANESI; Judith Liteky, Plaintiffs–Appellees, v. UNITED STATES DEPARTMENT OF DEFENSE; U.S. Army Training and Doctrine Command, Defendants–Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

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

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

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.

Dissent by Judge Watford

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The opinion and dissent filed on September 30, 2016, and appearing at 839 F.3d 751, are withdrawn.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 bills3 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. 1654 A-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...

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