Rojas v. Federal Aviation Administration et al

Filing 26

ORDER - IT IS HEREBY ORDERED that the Motion for Summary Judgment (Doc. 12 ) is granted in part and denied in part.... Status Hearing set for 1/5/2018 at 09:30 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow. (See document for full details). Signed by Judge G Murray Snow on 12/4/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jorge Alejandro Rojas, 10 Plaintiff, No. CV-16-03067-PHX-GMS ORDER 11 v. 12 Federal Aviation Administration, et al., 13 Defendants. 14 15 Pending before the court is Defendant Federal Aviation Administration’s (“FAA”) 16 Motion for Summary Judgment. (Doc. 12). For the reasons below, the Court grants the 17 motion in part and denies the motion in part. BACKGROUND 18 19 Between August 2015 and February 2016, Plaintiff Jorge Rojas filed at least six 20 Freedom of Information Act (“FOIA”) requests with Defendant Federal Aviation 21 Administration (“FAA”). 22 February 2014 policy change for hiring Air Traffic Control Specialists. The National 23 Black Coalition of Federal Aviation Employees (“NBCFAE”) lobbied for certain aspects 24 of the new hiring policy. 25 students participating in specified college programs under the Qualified Applicant 26 Register. This policy change negatively impacted Mr. Rojas’s application to work as an 27 Air Traffic Controller. 28 As a general theme, the FOIA requests concern FAA’s As part of this change, the FAA no longer formally preferred Mr. Rojas filed a complaint in Federal Court seeking an order against the FAA to 1 produce the requested records. (Doc. 1). The FAA subsequently filed this Motion for 2 Summary Judgment. (Doc. 12). 3 4 DISCUSSION I. Legal Standard 5 A. 6 The Court grants summary judgment when the movant “shows that there is no 7 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 8 of law.” Fed. R. Civ. P. 56(a). Substantive law determines which facts are material, and 9 “[o]nly disputes over facts that might affect the outcome of the suit under the governing 10 law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 11 Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden to show that there are 12 no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary Judgment 13 In the FOIA context, courts review an agency’s decision whether or not to disclose 14 de novo. 5 U.S.C. § 552(a)(4)(B); see also Louis v. United States Dep’t of Labor, 419 15 F.3d 970, 977 (9th Cir. 2005) (de novo review “requir[es] no deference to the agency’s 16 determination or rationale regarding disclosures”). However, courts “accord substantial 17 weight to an affidavit of an agency concerning the agency’s determination as to technical 18 feasibility . . . and reproducibility.” 5 U.S.C. § 552(a)(4)(B). If the FOIA dispute 19 presents a genuine issue of material fact, courts proceed to a bench trial or adversary 20 hearing. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 990 (9th 21 Cir. 2016). 22 B. 23 Upon proper request, federal agencies must disclose records to a member of the 24 public. 5 U.S.C. § 552. Nine categories of records are exempt from disclosure. 5 U.S.C. 25 § 552(b). The government has the burden of demonstrating that an exemption applies. 26 Shannahan v. I.R.S., 672 F.3d 1142, 1148 (9th Cir. 2012) (citing Lahr v. Nat'l Transp. 27 Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009)). When responding to a FOIA request, the 28 government must provide “tailored reasons” to justify withholding, and “may not respond FOIA Review -2- 1 with boilerplate or conclusory statements.” Shannahan, 672 F.3d at 1148 (citing Wiener 2 v. F.B.I., 943 F.2d 972, 978–79 (9th Cir. 1991)). 3 At issue in this case are Exemptions 6, 7(A), 7(C), and Glomar. 4 1. Exemption 6 5 FOIA does not require federal agencies to disclose personnel files when disclosing 6 them would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. 7 § 552(b)(6). Courts first evaluate whether disclosure implicates a privacy interest that is 8 nontrivial or more than de minimis. Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 9 681, 693 (9th Cir. 2012). Then, if the privacy interest in nontrivial, the court balances the 10 public interest against the privacy interest. Courts weigh these interests with a strong 11 presumption in favor of disclosure. Id. (citations omitted). 12 Case law gives several definitions of nontrivial privacy interests. A nontrivial 13 disclosure is an impermissible public intrusion that violates the common law or cultural 14 traditions. Cameranesi v. U.S. Dep’t of Def., 856 F.3d 626, 638 (9th Cir. 2017) (citations 15 omitted). 16 themselves. 17 possible embarrassment, harassment, or the risk of mistreatment. Id. (citations omitted). A nontrivial disclosure impacts people’s control of information about Id. (citations omitted). A nontrivial disclosure subjects individuals to 18 Public interest must be “more specific than having the information for its own 19 sake.” Yonemoto, 686 F.3d at 694 (quotation omitted). Public interest should show an 20 agency’s performance of its statutory duties or informs citizens about actual government 21 operations. Id. at 693 (citations omitted). Personnel information that “reveals little or 22 nothing about an agency’s own conduct is not the type of information to which FOIA 23 permits access.” Cameranesi, 856 F.3d at 640 (quotation omitted). 24 consider the FOIA requester’s personal interest to obtain the information because 25 Congress intended any member of the public to have an equal right to disclosure. U.S. 26 Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 (1994). 27 28 2. Courts do not Exemption 7(A) FOIA does not require federal agencies to disclose records compiled for law -3- 1 enforcement purposes that “could reasonably be expected to interfere with enforcement 2 proceedings.” 5 U.S.C. § 552(b)(7)(A). Government agencies commonly cite 7(A) when 3 a defendant seeks documents to assist with its own case or as a substitute to civil 4 discovery. See, e.g. Shannahan v. I.R.S., 672 F.3d 1142, 1151 (9th Cir. 2012). Although 5 the government need not show that each withheld document would actually interfere with 6 a particular enforcement proceeding, the government must generally show that disclosure 7 would interfere with enforcement proceedings. Shannahan, 672 F.3d at 1150 (quoting 8 Lewis v. I.R.S., 823 F.2d 375, 380 (9th Cir. 1987)). 9 3. Exemption 7(C) 10 FOIA does not require federal agencies to disclose records compiled for law 11 enforcement purposes that “could reasonably be expected to constitute an unwarranted 12 invasion of personal privacy.” 5 U.S.C. § 552(7)(C). Like Exemption 6, this exemption 13 considers personal privacy, and consequently, the analysis has the same steps as the 14 analysis under Exemption 6. Tuffly v. U.S. Dep’t of Homeland Security, 870 F.3d 1086, 15 1092 (9th Cir. 2017) (citation omitted). In comparison to Exemption 6, Exemption 7(C) 16 is “more protective of privacy,” and the only distinction between them is the “magnitude 17 of the public interest” required to outbalance the respective privacy interest. Forest 18 Service Employees for Environment Ethics v. U.S. Forest Service, 524 F.3d 1021, 1025 19 n.2 (9th Cir. 2008) (quoting U.S. Dep't of Def. v. Federal Labor Relations Authority, 510 20 U.S. 487, 497 n. 6 (1994)). 21 4. Glomar 22 Under the Glomar1 doctrine, a federal agency may refuse to confirm or deny the 23 existence of records when simply responding to the FOIA request would cause harm 24 otherwise recognized by a FOIA exception. Pickard v. Dep’t of Justice, 653 F.3d 782, 25 785–86 (9th Cir. 2011) (citations omitted). 26 27 1 28 The term “Glomar” comes from the case Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976) where the CIA refused to confirm or deny its connection to the ship Hughes Glomar Explorer and its mission to reclaim a sunken Soviet submarine. -4- 1 2 3 II. Analysis The parties dispute six separate FOIA requests, which the Court analyzes in four separate groupings. 4 A. 5 Request 8952 asked for a list of all Equal Employment Opportunity (“EEO”) cases 6 and any relevant policy, emails, documents, chats, etc., over a period of time in 2014 and 7 2015 to identify whether NBCFAE employees handled the complaints. (Doc. 13-1, Exh. 8 1, Att. A). Mr. Rojas specifically requested a spreadsheet of the filed cases with a brief 9 description and the EEO counselor assigned to the case. Id. The FAA provided Mr. 10 Rojas with a description of its search; a spreadsheet listing all EEO cases, the claim type, 11 and the assigned EEO counselor; and pages of emails with numerous redactions, 12 including the subject of the email, attachments in the email, carbon copied email 13 addresses, case numbers, and the subject of the complaint. 14 Exemption 6 required these redactions because the information could reveal the identity 15 of individuals in the complaints. 16 Request 8952 The FAA argued that The FAA adequately responded to Mr. Rojas request for a spreadsheet listing all 17 filed cases, a brief description, and the assigned EEO counselor. 18 provided in the spreadsheet conforms with the specifications of Mr. Rojas’s request. The 19 FAA attested in a letter to Mr. Rojas that it conducted a complete search for records, 20 (Doc. 13-1, Exh. 1, Att. C), and Ms. Stacie Graves, an FAA employee, signed a 21 declaration describing the search process, (Doc. 13-1, Exh. 2, ¶ 12). Concerning the 22 spreadsheet in Request 8952, the FAA complied with FOIA. The information 23 However, the FAA failed to comply with FOIA when it redacted the requested 24 emails. The disclosure of subject lines, case numbers, and attachment titles will not 25 likely allow Mr. Rojas or any other observer to identify individual claimants. The FAA 26 has not met its burden of demonstrating that an exemption applies. Additionally, any 27 potential privacy interest in the redacted portions is trivial at best, and as such, the Court 28 does not address the public interest in obtaining this information. -5- The FAA’s Motion 1 for Summary Judgment concerning the requested documents in Request 8952 is denied.2 2 B. 3 Request 9570 included four separate requests for documents. The first subsection 4 requested documents, reports, emails, etc., concerning the FAA’s Office of Security and 5 Hazardous Materials Safety (“ASH”) inquiry into cheating under the new hiring 6 practices. The FAA forwarded the request to ASH, and ASH discovered one Report of 7 Investigation that addressed Mr. Rojas’s request. The FAA disclosed part of the Report 8 of Investigation, but withheld other sections due to privacy concerns. 9 subsection requested all information concerning inquiries into cheating allegations raised 10 against Shelton Snow or other misconduct. The FAA withheld all material as a violation 11 of privacy under Exemption 6. The third subsection requested a “complete ‘Avery’ 12 listing/record and any other similar listing” concerning a letter from FAA Administrator 13 Michael Huerta to Congressman Frank LoBiondo. The FAA stated that it could not 14 provide documents because the appropriate office did not use the Avery tracking system. 15 The fourth subsection requested documents used in preparation of Michael Huerta’s letter 16 to Congressman LoBiondo. The FAA again withheld all materials as a violation of 17 privacy. Request 9570 The second 18 The FAA failed to meet its burden concerning the first subsection. As noted, the 19 government has the burden of demonstrating that an exemption applies, and the 20 government “may not respond with boilerplate or conclusory statements.” Shannahan, 21 672 F.3d at 1148. The government’s blanket assertion that privacy interests precluded 22 2 23 24 25 26 27 28 After the FAA filed its motion for summary judgment, it disclosed various additional materials to the Plaintiff and then argued in its Reply that it was appropriate for the Court to take account of the new materials in granting its motion. (Doc. 25). Of course, when the FAA asserts complete compliance with its FOIA obligations in a motion for summary judgment, it should have provided to the Plaintiff all documents on which it intends to base that motion before filing it. A piecemeal approach to document production only invites repeated supplemental motions and violates the well settled rule that the Court does not consider new arguments raised for the first time in a Reply brief since the Plaintiff cannot respond to such arguments. Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). While Defendants’ supplemental productions may in fact satisfy the FAA’s obligations under FOIA, the Court makes no attempt to make that determination in deciding this motion, except to the extent that the FAA’s obligations were fulfilled at the time it filed its initial motion. -6- 1 the full disclosure of the Report of Investigation is inadequate for the government to meet 2 its burden for summary judgment. 3 The FAA failed to comply with FOIA concerning the second subsection. The 4 government claims that it withheld all responsive documents because Mr. Snow has a 5 cognizable privacy interest that warrants nondisclosure of cheating allegations. However, 6 the public has an interest in knowing information about hiring officials who unfairly 7 support specific job applicants, especially for positions that maintain public safety. 8 Considering these two competing interests in light of the strong presumption in favor of 9 disclosure, Yonemoto, 686 F.3d at 693, the government’s response to Mr. Rojas’s request 10 failed to meet its burden for summary judgment. 11 The FAA failed to comply with FOIA concerning the third subsection. The 12 original request asked for the tracking record of a letter from the FAA to a congressional 13 representative. The FAA stated that it did not comply with this request because the FAA 14 does not use the Avery program. However, Mr. Rojas did not limit the request to the 15 Avery electronic program, but he also requested any similar listing of a tracking record. 16 The FAA failed to provide any further response for denying the request. Accordingly, 17 the FAA did not meet its burden concerning this section. 18 The FAA failed to comply with FOIA concerning the fourth subsection. 19 Notwithstanding the potential public interest in a government agency’s review of unfair 20 hiring practices, the government did not sufficiently show that it could not disclose any 21 information without violating privacy interests. The government claims that privacy 22 interests compel nondisclosure, but the government did not explain why it withheld all 23 documents, and it did not show that redactions could adequately protect any privacy 24 interests. Therefore, the government did not meet its burden that a FOIA exemption 25 warranted nondisclosure. 26 concerning Request 9570 is denied. In whole, the FAA’s Motion for Summary Judgment 27 C. 28 Request 2133 asked for accountability board complaints against FAA Air Traffic Requests 2133, 3419, 2612 -7- 1 Organization Vice President Joseph Teixeira. The FAA refused to confirm or deny the 2 existence of any relevant information. Request 2612 asked for EEO complaints against 3 Joseph Teixeira. Again, the FAA refused to confirm or deny the existence of any 4 responsive information. Request 3419 asked for accountability board complaints against 5 FAA employees and NBCFAE officials Shelton Snow and Paquita Bradley. Again, the 6 FAA refused to confirm or deny the existence of any relevant information. 7 Government employees have a privacy interest “in any file that reports on an 8 investigation that could lead to the employee’s discipline or censure.” Hunt v. F.B.I., 972 9 F.2d 286, 288 (9th Cir. 1992) (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 376–77 10 (1976)). A FOIA request that asks for disciplinary files of a large group of people allows 11 for permissible redaction to protect individual privacy interests. However, when the 12 FOIA request targets a specific individual, “[t]he file cannot be redacted and disclosed 13 without the risk of subjecting [the individual] to undeserved embarrassment and 14 attention.” Hunt v. F.B.I., 972 F.2d at 289. Similarly, when a FOIA request targets 15 misconduct by specific individuals, the files are less likely to inform the public about 16 actual government operations, or how the agency performs its statutory duties. See Hunt 17 v. F.B.I., 972 F.2d at 289–90. 18 The government justifiably responded to requests 2133, 3419, and 2612 with a 19 Glomar response. 20 concerning sexual harassment and discrimination. 21 complaints and EEO complaints could lead to the employee’s discipline or censure, and 22 disclosing the existence of an accountability or EEO complaint would cause 23 embarrassment. Because Mr. Rojas asked for information about specific government 24 employees, any redactions would not protect the privacy interests of the named 25 employees. Lastly, it is not clear how such a disclosure of specific instances of sexual 26 harassment or discrimination would shed significant light on FAA hiring policies or 27 practices. For these reasons, the FAA’s Glomar responses for Requests 2133, 3419, and 28 2612 were appropriate. The accountability board handles allegations of misconduct -8- Therefore, accountability board 1 D. 2 Request 4019 asked for information concerning Daniel Maggard’s (an FAA digital 3 media analyst) attempts to obtain Shelton Snow’s emails and correspondence. The FAA 4 cited Exemptions 6 and 7(A) in its response that it could not provide documents because 5 the requested records are subject to a current, internal investigation. Request 4019 6 Again, the government has the burden of demonstrating that an exemption applies. 7 Shannahan, 672 F.3d at 1148. In its original response, the FAA denied the request with a 8 simple explanation that Exemptions 6 and 7 precluded disclosure. (Doc. 13-2 at 101). In 9 its Motion for Summary Judgment, the FAA cursorily stated that Exemption 6 protects 10 the privacy interests of individuals in the email. 11 The FAA’s perfunctory response is inadequate, and the FAA fails to meet its 12 burden to show that an exemption applies. The Court denies the FAA’s Motion for 13 Summary Judgment concerning Request 4019. 14 15 16 CONCLUSION With a few noted exceptions, the FAA failed to carry its burden to show that FOIA exempted disclosure of Mr. Rojas’s requested documents. 17 18 19 20 IT IS HEREBY ORDERED that the Motion for Summary Judgment (Doc. 12) is granted in part and denied in part as follows: 1. concerning Request 8952, the Court grants Defendant’s Motion for 21 Summary Judgment concerning the requested spreadsheet, but the Court denies the 22 Motion concerning the remainder of the Request; 23 24 25 26 27 28 2. concerning Request 9570, the Court denies Defendant’s Motion for Summary Judgment; 3. concerning Request 2133, the Court grants Defendant’s Motion for Summary Judgment; 4. concerning Request 3419, the Court grants Defendant’s Motion for Summary Judgment; -9- 1 2 3 4 5. concerning Request 2612, the Court grants Defendant’s Motion for Summary Judgment; and 6. concerning Request 4019, the Court denies Defendant’s Motion for Summary Judgment. 5 IT IS FURTHER ORDERED setting this matter for a Status Hearing on 6 January 5, 2018 at 9:30 a.m. in Courtroom 602, Sandra Day O’Connor U.S. Federal 7 Courthouse, 401 W. Washington St., Phoenix, Arizona 85003-2151. 8 Dated this 4th day of December, 2017. 9 10 11 Honorable G. Murray Snow United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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