News-Press v. U.S. Dept. of Homeland Sec.

• Decision Date: 22 June 2007
• Docket Number: No. 06-13306.,No. 05-16771.,05-16771.,06-13306.
• Citation: 489 F.3d 1173
• Parties: The NEWS-PRESS, division of Multimedia Holdings Corporation, Cape Publications, Inc., publisher of Florida Today, Pensacola News-Journal, division of Multimedia Holdings Corporation, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Federal Emergency Management Agency, Defendants-Appellees. Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel, Plaintiff-Appellee, v. U.S. Department of Homeland Security, Federal Emergency Management Agency, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

489 F.3d 1173

The NEWS-PRESS, division of Multimedia Holdings Corporation, Cape Publications, Inc., publisher of Florida Today, Pensacola News-Journal, division of Multimedia Holdings Corporation, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Federal Emergency Management Agency, Defendants-Appellees.

Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel, Plaintiff-Appellee, v. U.S. Department of Homeland Security, Federal Emergency Management Agency, Defendants-Appellants.

No. 05-16771.

No. 06-13306.

United States Court of Appeals, Eleventh Circuit.

June 22, 2007.

Steven L. Brannock, James B. Lake, David Clark Borucke, Holland & Knight, LLP, Gregg D. Thomas, Thomas & LoCicero, PL, Tampa, FL, Charles D. Tobin, Holland & Knight, LLP, Washington, DC, for Plaintiffs-Appellants.

Scott A. Hershovitz, Mark B. Stern, U.S. Dept. of Justice, Washington, DC, Todd B. Grandy, Tampa, FL, Anne R. Schultz, U.S. Atty., Miami, FL, for U.S. Homeland Sec. & FEMA.

Thomas R. Julin, Patricia Acosta, Hunton & Williams, LLP, Miami, FL, for Amici Curiae.

Rachel Elise Fugate, Deanna Kendall Shullman, Thomas & LoCicero, PL, Tampa, FL, David S. Bralow, Tribune Co., New York City, for Sun-Sentinel Co.

Appeals from the United States District Court for the Southern District of Florida.

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

These consolidated appeals arise out of an unprecedented storm season in which four hurricanes — Hurricanes Charley, Frances, Ivan, and Jeanne — hit Florida within one six-week period during 2004. In response, the Federal Emergency Management Agency ("FEMA") disbursed $1.2 billion in individual disaster assistance to more than 605,500 Floridians, and also paid out claims to tens of thousands of individuals whose structures were insured under FEMA's National Flood Insurance Program. After questions were raised concerning how individual disaster assistance was disbursed in one Florida county following one of the hurricanes, the plaintiff newspapers collectively requested, under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), disbursement data for all four 2004 hurricanes plus an additional 27 disasters dating back some ten years. FEMA redacted the names and addresses from the data it provided, on the grounds that disclosing this information "would constitute a clearly unwarranted invasion of personal privacy" within the meaning of Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6). In News-Press v. U.S. Department of Homeland Security, the United States District Court for the Middle District of Florida held that disclosure of both the names and the addresses was exempt under Exemption 6. In Sun-Sentinel v. U.S. Department of Homeland Security, the United States District Court for the Southern District of Florida reached nearly the opposite conclusion, holding that FOIA requires FEMA to disclose the addresses, although not the names.

At issue today is whether FEMA has established that the names and addresses of 1.3 million individuals who applied for aid or made insurance claims after one of 31 federally-declared disasters are exempt from disclosure under the FOIA, on the grounds that releasing this information "would constitute a clearly unwarranted invasion of personal privacy" within the meaning of Exemption 6. After thorough review, we conclude that the addresses are not exempt under Exemption 6 because FEMA has failed to meet its heavy burden of showing a "clearly unwarranted invasion of personal privacy." In light of FEMA's awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility. Plainly, disclosure of the addresses will help the public answer this question by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars in the wake of several natural disasters across the country, and we cannot find any privacy interests here that even begin to outweigh this public interest. However, because there is only minimal additional public interest in disclosing the names, we conclude that they are exempt under Exemption 6.

I. Background

The following facts are culled from both summary judgment records and are undisputed. In the aftermath of the September 11, 2001 terrorist attacks, Congress created a Cabinet-level Department of Homeland Security ("DHS") to serve as an umbrella organization for twenty-two federal departments. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002). On January 10, 2003, President George W. Bush nominated Michael D. Brown ("Brown") to serve as the DHS's first Under Secretary of Emergency Preparedness and Response. On March 1, 2003, the Federal Emergency Management Agency ("FEMA") — whose mission is to "lead the effort to prepare the nation for all potential disasters and to manage the federal response and recovery efforts following any national incident — whether natural or man-made," http://www.fema. gov/library/view Record.do?id=1756; see also Homeland Security Act § 502, 116 Stat. at 2212 — was formally folded into the DHS, and Brown assumed the position of Director of FEMA.

A. The 2004 Florida Hurricane Season

Within six weeks during August and September of 2004, portions of Florida sustained extensive damage from Hurricanes Charley, Frances, Ivan, and Jeanne — the first time since 1886 that a state has been struck by four hurricanes in a single year. After each hurricane, President Bush issued a major disaster declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq. ("the Stafford Act"), and directed FEMA to provide federal disaster assistance to the affected areas. At that time, FEMA's response to the four 2004 hurricanes comprised the largest mobilization of emergency response and disaster recovery resources in FEMA history, exceeding even the agency's operational response to the attacks of September 11, 2001.

As a result of the 2004 hurricanes, FEMA received over 33,000 claims from Floridians under the National Flood Insurance Program ("NFIP"). Under this program, homeowners, renters, and business owners in certain designated flood-prone areas are eligible to purchase federal flood insurance for their building structures and their contents.

FEMA also paid out $1.2 billion in aid to more than 605,500 Floridians under the Individuals and Households Program ("IHP"), which provides financial assistance (that is not repaid by the recipient) and direct services to individuals and households who seek to "prevent, mitigate, or overcome a disaster-related hardship, injury or adverse condition" when those needs cannot be met in any other way. 44 C.F.R. § 206.111; see also 42 U.S.C. § 5174(a)(1). There are two components of the IHP — Housing Assistance ("HA") and Other Needs Assistance ("ONA") — and roughly half of the IHP aid was disbursed under each component. Under the HA component, FEMA compensates individuals for temporary housing, the repair or replacement of damaged housing, or for "hazard mitigation measures" to their residences to reduce the likelihood of damage in the future. Individuals may also receive direct assistance in the form of temporary FEMA housing. Finally, 95,000 Floridians qualified for Expedited Assistance ("EA"), a form of Housing Assistance under which they were immediately given, without inspection, funds in the equivalent of one month's fair market rent to be used toward their disaster-related housing needs. Under the ONA component, FEMA compensates individuals for funeral expenses, medical and dental costs, the repair and replacement of personal property, transportation expenses, moving and storage expenses, and other expenses, such as generators, deemed by FEMA to constitute a necessary expense or serious need.

With the exception of EA, all other IHP aid is disbursed only after FEMA's contract inspectors verify the accuracy of claims, including the existence of disaster-related damage to real and personal property, as well as ownership or occupancy. Inspectors using portable data devices upload their findings to FEMA's processing system, the National Emergency Management Information System ("NEMIS"), and in more than 90% of cases, an award is made on the basis of that inspection information.¹ Inspectors determine the amount of personal property loss under the ONA component using the Generic Room Concept: rather than comparing the state of household belongings after a disaster to the state of those belongings before the disaster, FEMA inspectors compare the post-disaster state of a household's belongings to the belongings in a hypothetical room FEMA has predetermined constitutes an "average" American kitchen bathroom, living room, or bedroom.² The value of a full, hypothetical room ranges from $862 (for a bathroom) to $2,495 (for a bedroom). Inspectors make ONA awards by categorizing rooms in one of three ways. If the inspector determines that all items in a room must be replaced, the household receives the full value of an average room. If some of the room's contents must be replaced but others can be repaired, however, the household receives only a portion of the value of a full room. Finally, if all of a room's items can be repaired, then the household receives a still smaller portion of the value of a full room.

Damage to other personal property, such as appliances, clothing, and automobiles, is assessed differently. For example, inspectors categorize damaged automobiles as "destroyed," "repairable," or "cosmetic," and award the replacement cost rather than market value; inspectors must confirm that damage is disaster-related, but are not required to note how they confirmed this, or even the type of damage sustained. Similarly, inspectors are generally permitted to award money...