Joel Havemann v. Michael Astrue
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cv-01498-ELH. Copies to all parties and the district court/agency. [999163836].. [12-2453]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2453
JOEL HAVEMANN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Ellen L. Hollander, District Judge.
(1:10-cv-01498-ELH)
Submitted:
June 12, 2013
Decided:
August 1, 2013
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allan E. Feldman, SNIDER & ASSOCIATES, LLC, Baltimore, Maryland,
for Appellant.
Rod J. Rosenstein, United States Attorney,
Joseph R. Baldwin, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On March 10, 2010, pursuant to the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, Appellant Joel Havemann filed six
requests for information with the Social Security Administration
(SSA).
Per 5 U.S.C. § 552(a), the SSA was required “within 20
days after” receiving the request to (1) determine “whether to
comply
with
[Havemann]
of
[the]
request”
[its]
and
determination
Id. § 552(a)(6)(A)(i).
(2)
and
“immediately
the
reasons
notify
therefor.”
The SSA sent Havemann six letters, dated
March 16 and 17, 2010, acknowledging receipt of his requests and
inviting him to inquire regarding their status if he did not
hear from them in thirty days.
On June 8, 2010, Havemann filed
a complaint in the United States District Court for the District
of Maryland, (1) alleging that the SSA had failed to comply with
the deadlines imposed by 5 U.S.C. § 552(a)(6)(A) and (2) seeking
“injunctive relief compelling the release and disclosure of the
requested agency records.”
notifications
determinations:
to
The SSA then provided the following
Havemann
regarding
its
disclosure
On August 13, 2010, it sent Havemann a letter
denying Requests I, II, and IV, and partially denying Request
III;
on
September
10,
2010,
it
sent
a
letter
asking
for
clarification regarding Request V; and on September 13, 2010, it
sent
a
letter
communicating
that
2
it
would
partially
grant
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Request VI.
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Later it reversed some of these determinations, but
ultimately, as detailed below, it complied only partially with
Havemann’s requests.
As to the information that it withheld, it
moved for summary judgment, maintaining that “further disclosure
would
constitute
a
‘clearly
unwarranted
privacy’ under 5 U.S.C. § 552(b)(6).”
invasion
of
personal
Havemann v. Astrue, No.
10-1498, 2012 WL 4378143, at *1 (D. Md. Sept. 24, 2012).
The
district court granted the motion, Havemann timely appealed, and
we have jurisdiction pursuant to 28 U.S.C. § 1331.
I.
Havemann
requests
in
is
a
free-lance
conjunction
with
journalist
research
and
for
expects to publish in the National Journal.
a
filed
story
his
FOIA
that
he
He is working with
Ronald Cooley, a former SSA employee who is not a party to this
case.
According to Cooley, Havemann’s story (or stories) “will
take an in-depth look at the workings inside the SSA and, to a
lesser degree, the [Veteran’s Administration (VA)], as to their
administration of certain of their benefit programs, and the
relevant inter-agency interactions.”
This appeal involves three
of Havemann’s six requests—Requests I, II, and V.
A.
3
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In
married
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Request
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Havemann
“where
couples
I,
both
sought
information
members . . . were
regarding
applying
for
and/or receiving Supplemental Security Income (SSI) benefits as
an ‘aged, blind or disabled individual with an eligible spouse’
and
where
such
benefits
were
denied
or
subsequently
stopped
because the couple also received a pension from the Department
of Veterans Affairs.”
Said differently, Havemann sought records
with the following three characteristics:
•
•
•
The latest “type of master record” 1 is “aged, blind
or disabled individual with eligible spouse”;
The record shows a denial of SSI for excess income
in 1990 or later, or shows that the individual and
spouse had been receiving SSI that was stopped in
1990 or later, due to excess income;
The record shows that one or both members of the
couple received, or began receiving, a VA benefit
(pension or compensation) based on need.
Havemann’s purpose for this request is to “shed light on the
SSA’s handling of a regulatory policy concerning war veterans
and their spouses who receive a VA pension . . . and also file
for SSI benefits.”
The SSA released some of the information requested.
Below,
we delineate the requested versus released information in the
same manner as the district court.
1
The left column shows the
A “master record” is a code used to indicate relevant
characteristics of the individual represented by that record.
4
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information requested and the right column indicates to what
extent the information was released.
FOIA Request I (Veteran Couple Request)
Data Requested
Data Released
Social Security Number (SSN) Alternative Identifier
or alternative identifier
Current or last shown “Master Yes
Record”
Full Name
No
Address with 9-digit zip code
No (only initial 5 digits of
zip code released)
SSI application date
No
Code for most recent state and No (only state code released)
county of residence
Current SSI status
Yes
Reason for SSI denial
Yes
Denial Date
Yes
Date of status change due to Yes
excess income
Disability Payment Code 2
Yes
Ledger Account File (LAF) Code 3 Yes
Date of Birth
No (only year released)
Earned Income
Yes
Unearned Income
Yes
Havemann challenges the SSA’s withholding of the month and day
of birth, and the SSI application date.
B.
2
The “disability payment
disability benefit awarded.
3
code”
denotes
the
type
of
The “ledger account file code” denotes the current payment
status.
5
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In
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Request
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II,
sought
Havemann
information
regarding
individuals who were over age sixty-five, who were receiving or
entitled
to
SSI
payments,
and
whose
“most
recent
SSI
record
show[ed] no current receipt of [Social Security] benefits.”
As
to these individuals, Havemann also requested data indicating
their date of enrollment in Medicare Part A and other Medicare
information.
Here, Havemann’s purpose is “to shed light on the
SSA’s handling of referrals of SSI recipient[s] for Premium Part
A
Medicare . . . through
Beneficiary] Program.”
the
QMB
[Qualified
Medicare
The SSA released some of the data that
Havemann requested, as shown below:
FOIA Request II (QMB Medicare Request)
Data Requested
Data Released
SSN or alternative identifier
Alternative Identifier
Citizenship/alien status
Yes
Current or last shown “Master Yes
Record”
Address with 9-digit zip code
No (only initial 5 digits of
zip code released)
SSI application date
No
Code for most recent state and No
(only
state
code
county of residence
released)
Individual Recipient
Yes
Identification Code
Current Payment Status Code
Yes
Beneficiary
Identification
Code Yes
(BIC)
Date of Birth
No (only year released)
LAF Code
Yes
Most recent federal SSI amount Yes
payable
Most recent federally administered Yes
SSI state amount payable
Hospital insurance enrollment and Yes
supplemental
medical
insurance
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information
Havemann challenges the SSA’s withholding of the month and day
of birth.
C.
In FOIA Request V, Havemann sought information regarding
deceased
“primaries”
(i.e.,
individuals
whose
SSN
number
is
recorded in the Master Beneficiary Record and on whose earnings
the
record
record,
is
based)
including
the
and
the
beneficiaries
primary.
on
their
purpose
for
this
Havemann’s
listed
request is “to assess and publicize how well the government is
administering
Benefits.”
Title
38
of
the
United
States
Code,
Veterans’
The chart below delineates the information that the
SSA released.
FOIA Request V (MBR Request)
Data Requested
Data Released
SSN of the deceased primary record No
holder
BIC
Yes
Payment Identification Code
Yes
Sex of Beneficiary
Yes
SSI entitlement and termination Yes
dates
Code for most recent state and No (only state released)
county of residence
Primary Insurance Amount (PIA)
Yes
Month and year of PIA
Yes
9-digit zip code
No
Date of birth
No (only year released)
LAF code
Yes
Monthly Benefit Amount (MBA)
No
Monthly Benefit Payment (MBP)
No
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SSI benefit type
SSI status code
Havemann
Yes
Yes
challenges
the
withholding
of
the
month
and
day
of
birth, the MBA, the MBP, the county code, and the zip code.
II.
Although
our
standard
of
review
for
grants
of
summary
judgment generally is de novo, Adams v. Trs. of the Univ. of
N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011), where FOIA
is involved, our review is limited to determining “(1) [whether]
the
district
court
had
an
adequate
factual
basis
for
the
decision rendered and (2) whether upon this basis the decision
reached is clearly erroneous.”
Spannaus v. Dept. of Justice,
813 F.2d 1285, 1288 (4th Cir. 1987) (quoting Willard v. Internal
Revenue Serv., 776 F.2d 100, 104 (4th Cir. 1985)) (collecting
cases)) (internal quotation marks omitted).
A.
FOIA was enacted in 1967 as a means of “facilitating public
access to [g]overnment documents.”
of
the
Administrative
Procedure
Its predecessor, Section 3
Act
(APA),
5
U.S.C.
§
1002
(1964), ostensibly existed for the same purpose but, as time
passed,
was
viewed
disclosure statute.”
“more
as
a
withholding
statute
than
a
Dept. of Air Force v. Rose, 425 U.S. 352,
8
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360
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(1976)
(internal
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(quoting
EPA
quotation
v.
marks
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Mink,
410
U.S.
omitted).
73,
79
“Congress
(1973))
therefore
structured a revision whose basic purpose reflected ‘a general
philosophy
of
full
agency
disclosure
unless
information
exempted under clearly delineated statutory language.’”
360–61
(quoting
(1965)).
But
S.
Rep.
No.
Congress’s
813,
desire
89th
“to
is
Id. at
Cong.
1st
Sess.,
3
pierce
the
veil
of
administrative secrecy and to open agency action to the light of
public
scrutiny,”
id.
at
361
(quoting
Rose
v.
Dept.
of
Air
Force, 495 F.2d 261, 263 (2d Cir. 1974)) (internal quotation
marks
omitted),
did
not
produce
a
unfettered access to agency records.
statute
that
provides
Rather, in its current
form, FOIA reflects Congress’s intent that the public’s right to
information be balanced against other competing interests.
issue here is the competing interest of privacy:
§ 552(b)(6)
(Exemption
6),
an
agency
can
refuse
At
Per 5 U.S.C.
to
disclose
“personnel and medical files and similar files the disclosure of
which
would
constitute
a
clearly
unwarranted
invasion
of
personal privacy.”
B.
The parties do not dispute that Exemption 6 applies to the
data at issue here.
See U.S. Dept. of State v. Wash. Post Co.,
456 U.S. 595, 602 (1982) (“[W]e do not think that Congress meant
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to limit Exemption 6 to a narrow class of files containing only
a
discrete
kind
of
personal
information.
Rather
‘[t]he
exemption [was] intended to cover detailed [g]overnment records
on an individual which can be identified as applying to that
individual.’”
(quoting
(second
H.R.
U.S.C.C.A.N.
disclosing
Rep.
and
No.
2428).
this
third
1497
alterations
(1966),
Accordingly,
data
would
invasion of personal privacy.”
original)
reprinted
we
“constitute
in
in
determine
a
clearly
1966
whether
unwarranted
5 U.S.C. § 552(b)(6); see also
Core v. U.S. Postal Serv., 730 F.2d 946, 947 (4th Cir. 1984)
(“If the files fall within th[e] definition [of similar files,]
the remaining issue is whether disclosure would constitute a
clearly
unwarranted
invasion
of
personal
privacy.”).
Making
“[t]his determination requires ‘a balancing of interest between
the
protection
unnecessary
of
public
an
individual’s
scrutiny,
and
private
the
affairs
preservation
public’s right to government information.’”
of
from
the
Id. at 948 (quoting
S. Rep. No. 813).
1.
We think it obvious that the beneficiaries implicated by
Havemann’s requests have a privacy interest in the information
that the SSA has collected about them.
Individuals have a right
to control dissemination of information about their person, even
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if that “information may [already] be available to the public in
some
form.”
U.S.
Dept.
of
Defense
v.
Fed.
Labor
Relations
Auth., 510 U.S. 487, 500 (1994); see also U.S. Dept. of Justice
v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763–64
(1989) (recognizing that the concept of privacy “encompass[es]
the individual’s control of information concerning his or her
person”
and
information”
that
is
“scattered
different
disclosure
than
of . . . bits
wholesale
of
dissemination
of
individuals’ profiles that are compiled by the government and
not
otherwise
“freely
available”
to
the
public).
The
more
pressing question is whether release of the withheld data would
enable
identification
of
specific
individuals
and
thus
compromise beneficiaries’ privacy.
Specific
individuals
obviously
are
identifiable
through
data that is exclusive to their person, such as a name, address,
or
social
security
identifier.”
number.
Such
data
is
termed
a
“unique
At issue here are elements of data that are not
unique identifiers, but that, according to the SSA, function as
unique
identifiers
available
because
information
to
they
can
identify
be
combined
specific
with
other
individuals.
The
district court agreed with the SSA’s categorization of this data
and its decision to deny disclosure because of the possibility
that the data could be used to single out certain beneficiaries.
We
find
the
district
court’s
11
decision
sound.
The
record
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provided
to
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this
Court
Pg: 12 of 17
demonstrates
that
the
SSA
thoroughly
analyzed and demonstrated the methods through which the withheld
data could lead to the identification of specific individuals.
The district court relied on the SSA’s analysis, and we can
ascertain no reason why it should not have done so.
Moreover,
Havemann’s arguments to the contrary fall short because they
focus on whether singular pieces of withheld data (e.g., month
and day of birth, SSI application date, etc.) could lead to the
identification
of
individuals
rather
than
on
whether
those
pieces of data working in combination with other information
could assist in such identification.
Havemann faults the SSA’s rationale for withholding this
data, charging that it is speculative:
“[T]he Agency withheld
the date of birth from disclosure based on the premise that
personal information could lead to identification of a living
individual.
However[,] the cases dealing with this issue hold
that possibility of identification is not a sound bas[is] for
nondisclosure.”
But Havemann’s argument lacks merit.
It is
true that an agency cannot withhold information based on a “mere
possibilit[y]”
that
an
individual’s
privacy
will
be
invaded.
See Department of Air Force v. Rose, 425 U.S. 352, 378 (1976)
(“The legislative history is clear that Exemption 6 was directed
at
threats
to
possibilities.”).
privacy
interest
more
palpable
than
mere
But it can withhold data if it demonstrates a
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likelihood that releasing the information would connect private
records to specific individuals.
See Nat’l Ass’n of Retired
Fed. Emp., 879 F.2d 873, 878 (D.C. Cir. 1989) (“Where there is a
substantial
probability
that
disclosure
will
cause
an
interference with personal privacy, it matters not that there
may
be
two
or
three
links
in
the
causal
chain.
The
concern . . . is not . . . with the number of steps that must be
taken to get to the threatened effect; rather, [it is on] the
likelihood that the effect will ever come to pass.”).
As noted
above, the SSA conducted a thorough and careful demonstration of
the effect that releasing the disputed data could have.
such,
the
disclosure
district
of
the
court
data
did
would
not
err
implicate
in
the
concluding
As
that
beneficiaries’
privacy interests.
2.
Having concluded that beneficiaries’ privacy interests are
at stake, we evaluate whether those interests are outweighed by
the public’s interest in disclosure.
“the
only
relevant
public
interest
Per the Supreme Court,
in
the
FOIA
balancing
analysis [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. Dept. of Defense v. Fed. Labor Rel.
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Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm., 489
U.S. at 773).
Havemann’s
stated
intent
to
evaluate
the
SSA’s
administration of various benefit programs fits within FOIA’s
goal
of
“shed[ding]
statutory duties.”
light
on
an
agency’s
performance
of
its
But he fails to satisfactorily articulate
how the withheld data aids his pursuits.
In his brief to this
Court, he avers that “to properly inform the public about SSA’s
operations
and
associated
failures,
[he]
needs
records
combinations of records that pertain to individuals.”
and
But the
information that the SSA has already disclosed does relate to
individuals,
and
Havemann
does
not
indicate
why
it
is
insufficient.
Havemann further maintains that “dates of birth
are
to
essential
categories
of
identification
benefits.”
As
of
noted
eligibility
by
the
for
district
certain
court,
however, the SSA has explained that Havemann can achieve nearly
100% accuracy on eligibility determinations with access simply
to the year of birth.
Thus, it is unclear how access to the
month and day of beneficiaries’ birth will assist Havemann in
any significant way.
Having
reviewed
the
district
court’s
decision
and
Havenmann’s arguments, we are convinced that any interest the
public may have in the withheld data is sufficiently outweighed
by
the
privacy
interests
that
14
would
be
compromised
by
such
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disclosure.
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The public’s interest in disclosure of the withheld
data is negligible at best.
The SSA has provided significant
details for more than 140 million individuals, and such details
appear sufficient to allow Havemann to conduct his analysis.
To
the extent that they are lacking, we do not believe that the
marginal
gains
ostensibly
possible
through
further
disclosure
are worth the burdens that will likely result to beneficiaries’
privacy interests.
court
“had
an
Accordingly, we conclude that the district
adequate
rendered”
and
that
its
Spannaus,
813
F.2d
at
factual
basis
decision
1288.
for
the
was
not
clearly
Thus,
we
decision
affirm
[it]
erroneous.
the
district
court’s grant of summary judgment to the SSA.
III.
Havemann contends that he is entitled to attorney’s fees
and
costs
motion
to
and
this
that
the
effect.
district
Per
5
court
U.S.C.
erred
in
denying
§ 552(a)(4)(E),
his
“[t]he
court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially
prevailed.”
A complainant “substantially prevail[s]” in a case
when he proves that “(1) his filing of the FOIA action was
necessary to obtain the information sought and (2) the action
had a ‘substantial causative effect’ on the ultimate receipt of
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that information.”
(9th
Cir.
prevail[]”
motion.
1991).
in
his
Pg: 16 of 17
Long v. U.S. I.R.S., 932 F.2d 1309, 1313
Here,
Havemann
opposition
to
did
the
not
SSA’s
“substantially
summary
judgment
Thus, he is not entitled to attorney’s fees connected
with that endeavor.
He appears to argue, however, that he is
entitled to the fees associated with filing his complaint on
June
8,
2010,
because,
as
noted
above,
although
the
SSA
acknowledged his requests for information within the timeframe
outlined in section 552(a)(6)(A), it failed to communicate its
determinations regarding disclosure within that timeframe.
The
filing of the complaint thus arguably “was necessary to obtain
the
information
[Havemann]
sought”
and
“had
a
‘substantial
causative effect’ on the ultimate receipt of [the] information”
that the SSA did disclose.
argument
further,
however,
Id.
We decline to explore this
because,
as
the
SSA
points
out,
Havemann failed to comply with the requirements of Federal Rule
of
Civil
Procedure
54
regarding
claims
for
attorney’s
fees.
Rule 54 requires that “[a] claim for attorney’s fees . . . be
made by motion”; “be filed no later than 14 days after the entry
of judgment”; “specify the judgment and the statute, rule, or
other grounds entitling the movant to the award”; “state the
amount sought or provide a fair estimate of it”; and “disclose,
if the court so orders, the terms of any agreement about fees
for the services for which the claim is made.”
16
Fed. R. Civ. P.
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54(d)(2)(A)-(B).
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Havemann made no such motion.
We recognize
that in his “Memorandum of Points and Authorities in Opposition
to
Defendant’s
Motion
for
Summary
Judgment,”
Havemann
argued
that he was entitled to attorney’s fees because the SSA did not
provide a substantive response to his request until after he
filed his complaint in this action.
But even if we reckon this
argument sufficient to comply with Rule 54’s requirement that
“[a] claim for attorney’s fees . . . be made by motion,” Fed. R.
Civ.
P.
54(d)(2)(A),
we
cannot
ignore
Havemann’s
failure
to
“state the amount sought or provide a fair estimate of it,” Fed.
R. Civ. P. 54(d)(2)(B)(iii).
Because Havemann failed to make a
proper plea for attorney’s fees before the district court, the
district court did not err in denying his request.
IV.
For the reasons stated above, we affirm the judgment of the
district
facts
court.
and
materials
legal
before
We
dispense
with
oral
argument
contentions
are
adequately
the
and
argument
Court
because
presented
would
not
the
in
the
aid
the
decisional process.
AFFIRMED
17
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