Yonemoto v. Dep't of Veterans Affairs
| Decision Date | 17 August 2011 |
| Docket Number | No. 10–15180.,10–15180. |
| Parties | Ronald M. YONEMOTO, Plaintiff–Appellant,v.DEPARTMENT OF VETERANS AFFAIRS, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Background: Federal employee filed Freedom of Information Act (FOIA) action seeking disclosure of information that agency redacted from requested documents. The United States District Court for the District of Hawaii, Barry M. Kurren, United States Magistrate Judge, 2007 WL 1310165, granted partial summary judgment in agency's favor, and employee filed interlocutory appeal. The Court of Appeals, 305 Fed.Appx. 333, dismissed. The United States District Court for the District of Hawaii, Barry M. Kurren, United States Magistrate Judge, 2009 WL 5033597, entered summary judgment in agency's favor, and employee appealed.
Holdings: The Court of Appeals, Berzon, Circuit Judge, held that:
(1) employee's FOIA request was not moot;
(2) law of the case doctrine did not bar employee's claim on mootness grounds;
(3) district court made improper categorical determination that disclosure of redacted information would constitute clearly unwarranted invasion of privacy;
(4) portions of email containing information regarding type of medical illness causing employee's absence fell within scope of FOIA exemption;
(5) portions of email describing conditions that disqualified recipient's mother from participation in clinical trial for medication fell within scope of FOIA exemption;
(6) email containing agency employee's complaints about co-worker fell within scope of FOIA exemption; and
(7) portions of federal employee's email containing employee's concerns about agency's Honolulu office having to pay relocation expenses from its budget did not fall within exemptions' scope.
Affirmed in part, reversed in part, vacated in part, and remanded.
Peter Van Name Esser of the Law Offices of Peter Van Name Esser, Honolulu, HI, for plaintiff-appellant Ronald M. Yonemoto.
Charles W. Scarborough and Leonard Schaitman of the Civil Division of the Department of Justice, Washington, DC, for defendant-appellee Department of Veteran Affairs.Appeal from the United States District Court for the District of Hawaii, Barry M. Kurren, Magistrate Judge, Presiding. D.C. No. 1:06–cv–00378–BMK.Before: A. WALLACE TASHIMA, WILLIAM A. FLETCHER, and MARSHA S. BERZON, Circuit Judges.
The Freedom of Information Act, (“FOIA”), 5 U.S.C. § 552, mandates that federal agencies make their records available to the public upon request, subject to nine discretionary exemptions. See Milner v. Dep't of Navy, –––U.S. ––––, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011). This case presents two FOIA issues. The first is whether an agency fulfills its disclosure obligation by offering to supply the documents to the requester, but only in his capacity as an employee of that agency. The answer to that question is unquestionably “no.” The second involves application to internal emails of FOIA Exemption 6, which provides that an 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).
Plaintiff-appellant Ronald M. Yonemoto is an employee of the Veterans Health Administration (“VHA”), a component of the defendant-appellee, the Department of Veteran Affairs (“the VA” or “the agency”). Between May 2005 and April 2006, Yonemoto submitted eight requests under the FOIA and the Privacy Act, 5 U.S.C. § 552a, primarily asking for emails to and from specified individuals. In response, the VA made a number of disclosures totaling about 1500 pages, but withheld some records in part and some in their entirety, pursuant to various FOIA exemptions. After exhausting his avenues for administrative relief, Yonemoto filed suit in the District Court for the District of Hawaii on July 11, 2006, alleging violations of both the FOIA and the Privacy Act.
Given the breadth of Yonemoto's requests and the overlap in the FOIA exemptions the VA claimed, the parties and the district court agreed that the VA would move for partial summary judgment as to one of Yonemoto's requests, the decision on which the district court would certify for interlocutory appeal under 28 U.S.C. § 1292(b). The motion for partial summary judgment concerned redactions of parts of five emails under Exemption 6. The district court granted the VA's motion for partial summary judgment, holding the agency's redactions permissible and the emails not subject to disclosure under the Privacy Act. See Yonemoto v. Dep't of Veterans Affairs [“ Yonemoto I ”], No. 06–00378, 2007 WL 1310165, at *4–6 . The district court then stayed the rest of the case pending Yonemoto's interlocutory appeal. Id. at *7.
A motions panel granted Yonemoto permission to appeal under 28 U.S.C. § 1292(b) in August 2007, and the appeal was calendared for oral argument on November 20, 2008. Shortly before the argument, the VA produced the emails at issue to Yonemoto, unredacted, in response to a discovery request regarding a charge pending with the Equal Employment Opportunity Commission (“EEOC”) concerning whether the VA had discriminated against Yonemoto. The interlocutory appeal was thereafter dismissed in a memorandum disposition, which stated in relevant part:
Yonemoto [has] informed the court that the VA produced the redacted materials in the discovery process of his EEOC claim. This production moots Yonemoto's claims. See Papa v. United States, 281 F.3d 1004, 1013 (9th Cir.2002) (). Yonemoto argues that the claim is not moot, because the decision would be applicable to other FOIA/Privacy Act claims pending before the district court. We disagree. The district court has not ruled on those issues. Given the disclosure of the disputed redacted materials in his EEOC action, Yonemoto may receive the remaining materials in any event. See Church of Scientology of Cal. v. Dep't of Army, 611 F.2d 738, 746 (9th Cir.1979) (). Upon remand, the district court can determine whether Yonemoto's entire claim is moot.Yonemoto v. Dep't of Veterans Affairs [“ Yonemoto II ”], 305 Fed.Appx. 333, 334 (9th Cir.2008) (unpub.).
Upon remand, the parties narrowed their dispute to 205 emails. See Yonemoto v. Dep't of Veterans Affairs [“ Yonemoto III ”], No. 06–00378, 2009 WL 5033597 (D.Haw. Dec. 22, 2009). The VA permitted Yonemoto to view 190 of those emails in full, but only in his capacity as a VA employee. After viewing the 190 emails, Yonemoto withdrew his request for 33 of them. The VA then offered to provide Yonemoto unredacted copies of the 157 emails that he had seen, but, again, only “as a VA employee.” The VA's Assistant Regional Counsel explained in a declaration submitted to the district court that “[t]he VA's purpose for making the emails available to Plaintiff as a VA employee was to allow Plaintiff to view the emails without requiring the VA to make the emails available to the public, as a FOIA production would.” Yonemoto declined the VA's offer.
The parties again filed cross-motions for summary judgment. Still contested were the 157 emails copies of which Yonemoto had viewed in full (but did not have in unredacted form) and redactions of 15 emails that the VA had not permitted him to see in full. Of the latter group, 3 were duplicates, so 169 emails were at issue.
The district court held a hearing on the cross-motions for summary judgment on December 11, 2009. During the hearing, the district court suggested—although the VA had not argued—that the VA's offer to give the 157 emails to Yonemoto in his capacity as an employee mooted his FOIA claim to those documents. Yonemoto contested that proposition, maintaining that there would be limitations on distributing emails received as a VA employee. Confirming that assertion, the VA's attorney represented that if Yonemoto received the records as an employee, “there are restrictions on you that aren't the same as if you're getting that document as a citizen,” and explained that the VA did not want to “publicize [the offered emails] to the world.” Although the VA argued that it had carried its burden on summary judgment to justify the redactions, the agency never supported the district court's mootness suggestion. At the conclusion of the hearing, the district court ordered the VA to submit for an in camera review the 12 emails Yonemoto had not seen.
Shortly thereafter, the district court issued an order granting summary judgment to the VA, holding that: (1) the VA's offer to produce the 157 emails to Yonemoto in his capacity as an employee mooted his claim as to those emails; (2) the redacted portions of the remaining 12 emails were properly withheld under Exemptions 2,1 5,2 and 6; and (3) Yonemoto could not obtain the emails under the Privacy Act. Yonemoto timely appealed these first two holdings, but abandoned his Privacy Act claim.
In his opening brief, Yonemoto addressed all three of the VA's claimed FOIA exemptions. The VA's answering brief, however, abandoned reliance on Exemptions 2 and 5 by notifying us that (1) the VA had recently disclosed to Yonemoto in unredacted form 3 of the 12 disputed emails, each of which had been redacted only under Exemption 2; and (2) the VA was declining to defend the remaining redactions on any basis save Exemption 6.
This appeal thus comes down to two issues: (1) whether the VA's offer of the 157 emails to Yonemoto in his capacity as an employee mooted his claim to those emails; and (2) whether the VA can withhold the redacted portions of the other 9...
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