Kowack v. U.S. Forest Serv.

• Decision Date: 09 September 2014
• Docket Number: No. 12–35864.,12–35864.
• Citation: 766 F.3d 1130
• Parties: Mark KOWACK, Plaintiff–Appellant, v. UNITED STATES FOREST SERVICE; Thomas Tidwell, Chief of the United States Forest Service, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

766 F.3d 1130

Mark KOWACK, Plaintiff–Appellant,

v.UNITED STATES FOREST SERVICE; Thomas Tidwell, Chief of the United States Forest Service, Defendants–Appellees.

No. 12–35864.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2014.

Filed Sept. 9, 2014.

Stacey Weldele–Wade (argued), Antonioli and Wade, P.C., Missoula, MT, for Plaintiff–Appellant.

Michael W. Cotter, United States Attorney, George F. Darragh, Jr.at (argued), Assistant United States Attorney, Great Falls, MT, Karen Carrington, Office of General Counsel, U.S. Department of Agriculture, Charles Spricknall, Office of General Couns el, U.S. Department of Agriculture, Washington, D.C., for Defendant–Appellee.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge. Presiding, D.C. No. 9:11–cv–00095–DWM.

Before: ALEX KOZINSKI, Chief Judge, JOHNNIE B. RAWLINSON and CARLOS T. BEA, Circuit Judges.

OPINION

KOZINSKI, Chief Judge:

Democracy functions ill in shadow, yet government bureaucracies are notoriously reluctant to reveal their internal processes. Recognizing this tension, Congress passed the Freedom of Information Act (“FOIA”) in 1966. FOIA fosters transparency by adopting a baseline presumption that information in the hands of the government belongs to the people and must be disclosed on request. But some secrecy is necessary, so FOIA includes several narrow exemptions. We consider how much the government must explain to show that an exemption blocks the release of requested information.

I. Background

Mark Kowack teaches disadvantaged youth at the Trapper Creek Center in Darby, Montana as part of the Forest Service Job Corps Program. Kowack claims that in 2008 he “began experiencing threats, aggression, and workplace hostility from certain of his co-workers.” He says he feared for the safety of himself and his students.

After Kowack filed a complaint and sought help from one of his senators, the Director of the Jobs Corps National Center launched an investigation into “allegations of work place violence, threatening remarks and a negative work place culture”at the Trapper Creek Center. The investigator interviewed and obtained statements from all four employees in the center's education department including Kowack, the center's director and two other individuals; the investigator also gathered grievance records, disciplinary letters and informal complaints. These documents were compiled into a report that was presented to the Forest Service's Misconduct Investigations Program Manager and the National Director of the Jobs Corps Program, among others. Ultimately, the Forest Service declined to take any action and closed the investigation. It notified Kowack of its decision, but gave him almost no explanation for it.

Dissatisfied, Kowack filed a FOIA request to obtain copies of the investigative report and “all statements, interviews, photos, notes and any other documents that pertain to the ‘misconduct investigation.’ ” The Forest Service responded that it had located 173 responsive pages, 80 of which it withheld under the personal privacy exemption. See5 U.S.C. § 552(b)(6).

Kowack filed an administrative appeal, which resulted in the disclosure of 188 pages of documents, many of which were heavily redacted. The redacted documents fall into five categories: (1) statements made to the investigator by employees other than Kowack; (2) administrative documents and reports created by the investigator; (3) grievance-related documents created by the National Federation of Federal Employees; (4) disciplinary letters issued to employees other than Kowack; and (5) a complaint made by an employee other than Kowack to the Trapper Creek Jobs Corps Center Director.

Kowack sued, challenging the redactions and moved for in camera inspection of the documents. Instead, the district court ordered the Forest Service to create a Vaughn index describing each document and explaining why each document was exempt from disclosure. As its Vaughn index, the Forest Service submitted a declaration from Sherry Turner, the Assistant Director of the Forest Service's FOIA and Privacy Office. The district court granted the Forest Service's motion for summary judgment. Kowack appeals.

II. Discussion

We employ a two-step standard of review when considering a district court's grant of summary judgment in a FOIA case. Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir.2012). First, we review de novo whether “an adequate factual basis exists to support the district court's decisions.” Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir.2008). In making this determination, we may rely solely on government affidavits “so long as the affiants are knowledgeable about the information sought and the affidavits are detailed enough to allow the court to make an independent assessment of the government's claim.” Lion Raisins, Inc. v. U.S. Dep't of Agriculture, 354 F.3d 1072, 1079 (9th Cir.2004). If the affidavits are inadequate, we may return the case to the district court for the production of a more detailed Vaughn index and, if necessary, a “first-hand determination of [documents'] exempt status.” Church of Scientology of Calif. v. U.S. Dep't of Army, 611 F.2d 738, 742 (9th Cir.1979).

But, if the affidavits are adequate, we review the district court's “conclusions of fact ... for clear error, while legal rulings, including [the district court's] decision that a particular exemption applies, are reviewed de novo.” Lane, 523 F.3d at 1135. The government, of course, has the burden of proof. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

A. Witness Statements

Kowack challenges the redactions to twenty-two pages of witness statements made to the investigator by employees other than himself. The government redacted the documents pursuant to Exemption 6, the personal privacy exemption. Exemption 6 protects information about individuals when contained in “personnel and medical” or other “similar files,” if disclosure would “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

Kowack argues that the government hasn't proven that the witness statements are “similar files” because they don't contain “information similar to that found in a standard personnel file.” Church of Scientology, 611 F.2d at 746. But we've defined “similar files” broadly to include “records containing information that applies to particular individuals.” Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1024 (9th Cir.2008). Thus, files containing citizenship information on specific individuals; reports of interviews with Haitian nationals involuntarily returned to Haiti; and a report analyzing an agency's response to a wildfire have all been found to be “similar files.” See Prudential Locations LLC v. U.S. Dep't of Housing & Urban Devel., 739 F.3d 424, 429 (9th Cir.2013). Because a witness's statement about misconduct he has observed in the workplace “contain[s] information that applies to particular individuals,” such statements qualify as “similar files.” See Forest Serv. Emps., 524 F.3d at 1024.

Nonetheless, the district court erred in finding that the Turner declaration provides an adequate factual basis for concluding that disclosure of the witness statements would “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). For, even personal information must be disclosed unless doing so is “clearly unwarranted,” and this is true only when the individual's privacy interest outweighs the public interest. See Yonemoto, 686 F.3d at 694. The only public interest we consider is “the extent to which disclosure of the information sought would ‘she[d] light on an agency's performance of its statutory duties' or otherwise let citizens know ‘what their government is up to.’ ” U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773, 109 S.Ct. 1468) (alteration in original).

Because the district court didn't conduct an in camera review, we have only Turner's description of the withheld documents, as contained in her Vaughn index declaration, but this description is too vague to allow us to weigh either the privacy or the public interests at stake. Turner states that the witness statements contain “allegations of workplace violence, threatening remarks, and a negative workplace culture,” and that the Forest Service redacted “names, job titles, and other personal identifiers of [the witnesses] and their detailed accounts and allegations because disclosing such information would lead to their identification.”

We've recognized that a privacy interest exists in avoiding embarrassment, stigma and harassment, see Forest Serv. Emps., 524 F.3d at 1026, and the knowledge that a specific employee was associated with the investigation could implicate the employee's privacy interest. But that doesn't help the government in this case because we already know the identities of most of the people interviewed—all employees of the Education Department, the center director and two other individuals. At least the department employees and the center director, then, have no privacy interests in preventing the public from knowing about their involvement with the investigation.

The witnesses may have a privacy interest in ensuring that their names aren't associated with specific incidents reported to the investigator. But the government hasn't provided enough information for us to make an independent determination whether it's necessary to withhold all details about the events the witnesses described in order to protect that interest. See Yonemoto, 686 F.3d at 694. The government justifies its redactions only by noting that the center is located in a small community and has a...