PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS v. UNITED STATES DEPARTMENT OF AGRICULTURE

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MEMORANDUM AND OPINION granting in part USDA's motion to dismiss or for summary judgment 19 with regard to USDA's withholding of the CD related to the tiger attack and denying in part PETA's cross-motion for summary judgment 21 & 29 with regard to this same issue. Signed by Judge Rosemary M. Collyer on 6/27/07. See Opinion for further details.(KD)

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS v. UNITED STATES DEPARTMENT OF AGRICULTURE

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.

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Civil Action No. 06-930 (RMC)

MEMORANDUM OPINION
T h e People for the Ethical Treatment of Animals ("PETA") filed this case under the F r e e d o m of Information Act ("FOIA"), 5 U.S.C. § 552, against the U.S. Department of Agriculture (" U S D A " ). In this suit, PETA seeks the disclosure of a CD recording of a phone call, a call allegedly

to USDA from a witness to the tiger attack on performer Roy Horn.1 USDA contends that the entire
C D is exempt from disclosure based on the privacy interest of the caller because the caller could be id en tifie d by the sound of his/her voice. USDA further alleges that the information on the CD re v e a ls nothing about USDA activities. On June 11, 2007, the Court issued its Memorandum O p i n i o n and Order granting in part and denying in part USDA's motion to dismiss or for summary ju d gm e n t and granting in part and denying in part PETA's cross-motion for summary judgment. See [D k t. ## 31 & 32]. In the Memorandum Opinion and Order, the Court ordered USDA to submit to the C o u rt for in camera inspection the CD recording of the phone call regarding the tiger attack. The

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PETA also seeks other information in this FOIA suit, information that is not at issue here.

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Court explained the parameters of the personal privacy exemption as follows:
E x e m p t io n 6 permits an agency to withhold from disclosure " p e r s o n n e l and medical files and similar files" if their disclosure w o u ld "constitute a clearly unwarranted invasion of personal p r iv a c y . " 5 U.S.C. § 522(b)(6) (emphasis added). Exemption 7(C) a ls o exempts disclosure of information based on privacy concerns by p e r m i tt in g an agency to withhold from disclosure information that is " c o m p i le d for law enforcement purposes, but only to the extent that t h e production of such law enforcement records or information could re a s o n a b ly be expected to constitute an unwarranted invasion of p e r s o n a l privacy." 5 U.S.C. § 522(b)(7)(C) (emphasis added). . . . .... T o determine whether an agency has properly invoked the p e r s o n a l privacy exemption, the court must balance the public interest i n disclosure against the privacy interest the exemption is intended to p ro te c t. Dep't of Justice v. Reporters Comm. for Freedom of the P r e s s , 489 U.S. 749, 776 (1989) (balancing test applies to Exemption 7 ( C ) ); see also Dep't of State v. Ray, 502 U.S. 164, 175 (1991) (b a la n c in g test applies to Exemption 6). In applying this balancing te s t, courts consider the nature of the document at issue and the d o c u m e n t 's relation to the core purpose of FOIA, that is, "to open a ge n c y action to the light of public scrutiny." Reporters Comm., 489 U .S . at 774. The purpose of FOIA "is not fostered by disclosure of in fo rm a tio n about private citizens that is accumulated in various g o v e r n m e n t a l files but that reveals little or nothing about an agency's o w n conduct." Id. at 773. Thus, in Reporters Committee, the S u p r e m e Court held that Exemption 7(C) protected from disclosure th e FBI rap sheets of individuals accused of improperly obtaining d e fe n s e contracts through a corrupt Congressman. The Court e x p la in e d that while there was some public interest in obtaining the in fo rm a tio n , disclosure would not fall within the central purpose of F O IA because it would reveal nothing about the behavior of the C o n gres s m a n or the Department of Defense. Id. at 774. In O'Keefe v. Dep't of Defense, 463 F. Supp. 2d 317 (E . D . N . Y . 2006), the court balanced the privacy interest that go v e rn m e n t employees have in protecting their identities against the p u b lic interest in disclosure. In that case, an Army soldier sought the d i s c lo s u re of the names and other identifying information that had b e e n redacted from documents the soldier had received pursuant to a F O IA request. The information redacted could be used to identify

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D e p a r t m e n t of Defense employees who had investigated the soldier's a lle ga tio n s of misconduct by his commanding officers. Because re le a s e of the identities of the Department of Defense employees c o u ld subject them to harassment or embarrassment and because the re le a s e of the names would "shed little, if any, light on how the DOD c o n d u c te d [the] investigation" of alleged misconduct, the court found th a t the information was exempt from disclosure under Exemption 7 (C ). Id. at 324. Mem. Op. at 7-9. In its motion to dismiss or for summary judgment, USDA claimed that because the w i tn e s s 's privacy interest outweighed the public interest in disclosure, the CD was exempt from d i s c lo s u re . PETA contended that USDA's conclusory assertion that the CD does not relate to agency a c tiv itie s was insufficient to support a claim of exemption. The Court could not determine based on t h e information before it whether the recording related to USDA activities, and thus the Court o rd e re d USDA to submit the CD recording for an in camera review. Id. at 12 & 16.

USDA submitted the CD recording, and the Court has reviewed it in camera. The recording is a message from an individual who did not witness the tiger attack on Mr. Horn but who was speculating on its causes and offering suggestions for investigation into "economic terrorism." The caller did not provide an identity, suggesting a reluctance to be made public. If USDA were to release the CD, the caller could be identified by the sound of his/her voice, and thus the information
is exempt from disclosure due to privacy concerns under Exemption 7(C). Release of the caller's

identity could subject him/her to harassment or embarrassment. See O'Keefe, 463 F. Supp. 2d at 324.
M o r e o v e r, the release would not shed light on how USDA conducted its investigation into the tiger a tta c k . See Reporters Comm., 489 U.S. at 773 (the purpose of FOIA "is not fostered by disclosure o f information about private citizens that is accumulated in various governmental files but that r e v e a l s little or nothing about an agency's own conduct"); O'Keefe, 463 F. Supp. 2d at 324 (release

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o f the names of Department of Defense employees who had investigated a soldier's allegations of m i s c o n d u c t by his commanding officers was not required because it would not shed light on how D o D conducted its investigation). B e c a u s e the CD recording is exempt from disclosure under Exemption 7(C), USDA's m o t io n to dismiss or for summary judgment will be granted, and PETA's cross-motion for summary j u d gm e n t will be denied, with regard to this issue. A memorializing order accompanies this M e m o ra n d u m Opinion.

Date: June 27, 2007

/s/ ROSEMARY M. COLLYER United States District Judge

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