National Ass'n of Home Builders v. Norton

• Decision Date: 05 November 2002
• Docket Number: No. 01-5283.,01-5283.
• Citation: 309 F.3d 26
• Parties: NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant, v. Gale A. NORTON, Secretary of Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

309 F.3d 26

NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant, v. Gale A. NORTON, Secretary of Interior, et al., Appellees.

No. 01-5283.

United States Court of Appeals, District of Columbia Circuit.

Argued October 4, 2002.

Decided November 5, 2002.

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Appeal from the United States District Court for the District of Columbia (No. 99cv01923).

Rafe Petersen argued the cause for appellant. With him on the briefs was Lawrence R. Liebesman. Duane J. Desiderio entered an appearance.

David J. Ball, Jr., Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: EDWARDS, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The principal issue in this appeal is whether Exemption 6 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(6) (2000), applies to site-specific information about the location of an endangered species where disclosure might identify individuals' private property. The National Association of Home Builders ("NAHB") appeals the grant of summary judgment to the Secretary of the Interior on NAHB's request for release of information on the location of nesting sites of the cactus ferruginous pygmy owl in Arizona. The Secretary provided NAHB with numerous documents on the location of the owl, but, invoking several FOIA exemptions, the Secretary redacted the documents to conceal most of the site-specific location that NAHB sought. Assuming that the requested files are "similar files" under Exemption 6, we hold, upon de novo review, that the public interest in disclosure outweighs the privacy interests reflected in the Secretary's evidence. Accordingly, because Exemptions 3, 4, and 5 do not bar release of the requested documents, we reverse the grant of summary judgment and remand the case with instructions to order the Secretary to release the site-specific information without revealing individual property owners' names, which NAHB no longer requests.

I.

In 1997 the Secretary of the Interior designated the pygmy owl as an endangered species and two years later exercised authority under the Endangered Species Act to designate critical habitats for the pygmy owl in Arizona. 16 U.S.C. § 1533(a) (2000); Determination of Endangered Status for the Cactus Ferruginous Pygmy-Owl in Arizona, 62 Fed.Reg. 10,730 (Mar. 10, 1997) (to be codified at 50 C.F.R. pt. 17); Designation of Critical Habitat for the Cactus Ferruginous Pygmy-Owl, 64 Fed.Reg. 37,419, 37,423-25 (July 12, 1999) (to be codified as 50 C.F.R. pt. 17) ("1999 Final Rule"). As a result, large tracts of land in southwest Arizona — over731,000 acres — were set aside as critical habitat for the owl, alerting "the public as well as land-managing agencies to the importance of these areas." 64 Fed.Reg. at 37,419, 37,422. In the Final Rule, the Secretary explained that he "used data on known pygmy-owl locations" — the site-specific information that NAHB now seeks — initially to identify "important areas" for the owl. Id. at 37,423. The Secretary then used biological information to connect these "important areas" to determine the owl's likely habitats. Id.

In 1998, NAHB filed a FOIA request seeking "previously documented, site-specific locations, with appropriate addresses, identified landmarks, parcel or subdivision maps, polygons, or other points of reference sufficient to allow an average person to locate the property where members of the species are known or believed to exist." The Secretary, acting through the Fish and Wildlife Service ("FWS"), responded to the request by producing hundreds of documents related to the location of pygmy owls. The Secretary redacted these documents, however, to conceal most of the site-specific locations that NAHB sought. Specifically, the Secretary redacted all section information, site directions, site names, and the names and addresses of owners of private lands on which the pygmy owls and their nests have been located.

Dissatisfied with the Secretary's response, NAHB filed this lawsuit to compel disclosure of the owl-sighting information on the grounds that NAHB was entitled to the data as a matter of law under FOIA. The Secretary defended the withholding of information under four FOIA Exemptions Exemption 3, for information "specifically exempted from disclosure" by another statute; Exemption 4, for "trade secrets and commercial or financial information obtained from a person and privileged or confidential"; Exemption 5, for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency"; and Exemption 6, for "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)(3)-(6). The Secretary presented the affidavit of FWS Director Jamie Rappaport Clark, which recounted, in pertinent part, experiences in Texas and Arizona, where bird enthusiasts traveled to the location of pygmy owl sightings and adversely affected both the pygmy owls and the private property owners. In Clark's opinion, such incidents have created in landowners a "well founded" fear that birdwatchers, in the hopes of glimpsing the owl, will unlawfully invade the landowners' private property.

The district court granted summary judgment for the Secretary, ruling that the Secretary properly redacted the information under Exemption 6, but that Exemptions 3, 4, and 5 did not apply. The court, relying on the observations in Texas and the Arizona incident, concluded that "releasing the pygmy owl data would result in an unwarranted invasion of privacy." The court recognized that withholding the information would deny the public information that would enable it to locate the pygmy owl's nesting sites, and that the public would therefore be unable to determine whether the Secretary had properly designated critical habitats for the owl. Still, the district court was satisfied that the Secretary's disclosure in the 1999 Final Rule of the method by which critical habitats are designated was sufficient to render the decisionmaking process clear, "even though the ultimate decisions remain secret."

II.

The Endangered Species Act instructs the Secretary to "determine whether any species is an endangered species or a threatened species because of" a range of enumerated factors, including "the present or threatened destruction, modification, or curtailment of its habitat or range...." 16 U.S.C. § 1533(a)(1). Once the Secretary identifies a species as endangered, the Act imposes penalties upon "any person" who engages in certain prohibited actions with respect to the species. Id. § 1538(a). The Act also provides that the Secretary, "to the maximum extent prudent and determinable," shall "designate any habitat of [an endangered or threatened species] which is then considered to be a critical habitat...." Id. § 1533(a)(3). The Act specifies that the Secretary should base the critical habitat designation on "the best scientific data available" and should consider "the economic impact, and any other relevant impact, of specifying any particular area as a critical habitat." § 1533(b)(2). In the 1999 Final Rule, the Secretary explained that, in making critical habitat designations, the information about the location of an endangered species is used to form "an interconnected system of suitable and potential habitat areas...." 64 Fed.Reg. at 37,423. "[W]ithin the delineated critical habitat boundaries," the Secretary noted, "only lands containing, or... likely to develop, those habitat components that are essential for the primary biological needs of the pygmy-owl are considered critical habitat." Id.

The purpose of the Freedom of Information Act, as the Supreme Court instructed in Department of the Air Force v. Rose, is "`to pierce the veil of administrative secrecy and open agency action to the light of public scrutiny....'" 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976) (citation omitted). FOIA reflects "`a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.'" Id. at 360-61, 96 S.Ct. at 1599 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Although Congress enumerated nine exemptions from the disclosure requirement, "these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Id. at 361, 96 S.Ct. at 1599; see also United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 546-47, 116 L.Ed.2d 526 (1991); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 1481-82, 103 L.Ed.2d 774 (1989). At all times courts must bear in mind that FOIA mandates a "strong presumption in favor of disclosure," Ray, 502 U.S. at 173, 112 S.Ct. at 547, and that the statutory exemptions, which are exclusive, are to be "narrowly construed," Rose, 425 U.S. at 361, 96 S.Ct. at 1599. In reviewing de novo a grant of summary judgment for the government in a FOIA case, the court therefore remains "mindful that the `burden is on the agency' to show that requested material falls within a FOIA exemption." Petroleum Info. Corp. v. United States Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (citations omitted).

A.

Under Exemption 6, a federal agency may withhold "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). Thus, the threshold question is whether the requested information is contained in a personnel, medical, or similar file. United States Dep't of State v. Wash. Post Co., 456 U.S. 595, 598, 102 S.Ct. 1957, 1959-60, 72 L.Ed.2d...