AQUALLIANCE v. UNITED STATES ARMY CORPS OF ENGINEERS

Filing 15

MEMORANDUM AND OPINION re #9 , #11 the parties' cross-motions for summary judgment. Signed by Judge Tanya S. Chutkan on 3/22/2017. (lctsc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AQUALLIANCE,
Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS,
Defendant.

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Case No. 16-cv-0717 (TSC)

MEMORANDUM OPINION
This case concerns a 2015 Freedom of Information Act (“FOIA”) request made by Plaintiff
AquAlliance to the U.S. Army Corps of Engineers (“Army Corps”) regarding the California Water
Fix project. The Army Corps withheld a public notice distribution list containing names and
private addresses pursuant to FOIA Exemption 6, which covers certain personal information. The
parties have filed cross-motions for summary judgment regarding the application of this
exemption. (ECF Nos. 9, 11). For the reasons set forth below, the Army Corps’ motion is
GRANTED IN PART and DENIED IN PART, and Plaintiff’s cross-motion is GRANTED.
I.

BACKGROUND
Plaintiff submitted its FOIA request to the Sacramento District of the Army Corps in

September 2015, seeking application records regarding Public Notice SPK-2008-00861 for the
California Water Fix project. (See Sept. 2015 FOIA Request (Def. Ex. A)). In response, the
Army Corps provided Plaintiff with a link to the California Department of Water Resource’s
website, where many of the responsive records were already publicly accessible, and also mailed
Plaintiff a CD containing additional responsive documents. (Platt Decl. ¶¶ 8; 13–14).

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As part of its broader request for all application records, Plaintiff requested the public
notice distribution list of names and addresses of individuals who own property along the route of
the project. (See Platt Decl. ¶ 9). The Army Corps withheld this document on the grounds that the
information was exempt from disclosure under FOIA Exemption 6. (Id.; Faustino Decl. ¶¶ 8–22).
Plaintiff appealed the agency’s response in December 2015, and the Army Corps denied the
appeal in January 2016 after determining that it had properly applied Exemption 6. (Faustino
Decl. ¶ 13; Jan. 15, 2016 Letter to B. Vlamis (Def. Ex. K)).
II.

LEGAL STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). FOIA cases are typically and appropriately decided on motions for
summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
Agencies bear the burden of justifying withholding of any records, as FOIA requires the “strong
presumption in favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The court
therefore analyzes all underlying facts and inferences in the light most favorable to the FOIA
requester, even where the requester has moved for summary judgment. See Pub. Citizen Health
Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999). In cases such as this, concerning
the applicability of a FOIA exemption, agencies may rely on supporting declarations that are
reasonably detailed and non-conclusory. See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001).
“If an agency’s affidavit describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,

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and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith,
then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619.
“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t of State,
565 F.3d 857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should be
granted in favor of the FOIA requester where “an agency seeks to protect material which, even on
the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of
Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp. v. Dep’t of Interior,
976 F.2d 1429, 1433 (D.C. Cir. 1992)).
III.

DISCUSSION
A. Adequacy of Search
In Count I of its Complaint, Plaintiff alleges that Defendant conducted an inadequate

search in violation of FOIA, 5 U.S.C. § 552(a)(3)(C), which requires that an agency “make
reasonable efforts to search for the records in electronic form or format, except when such efforts
would significantly interfere with the operation of the agency’s automated information system.”
(Compl. ¶¶ 13–15). Defendant moved for summary judgment on this claim, as well as on the
issue of whether the agency disclosed all reasonably segregable information. In its Response and
cross-motion, Plaintiff conceded that the search was reasonable and failed to respond to the issue
of segregability. (See Pl. Mem. at 2). Because Plaintiff has conceded this claim and issue,
Defendant’s motion for summary judgment is GRANTED as to Count I.
B. FOIA Exemption 6
In its remaining claim, Plaintiff alleges that the Army Corps unlawfully withheld
responsive records under FOIA Exemption 6. (Compl. ¶¶ 16–18). Exemption 6 permits the

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withholding of “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). Agencies
(and courts) must engage in a four-step analysis to determine whether information is protected
from disclosure under this exemption. First, the text of the statute requires that the agency
determine whether each document is a personnel, medical, or “similar” file. Next, the agency
must determine if the individuals identified in the documents have a significant privacy interest in
the requested information. Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008).
Third, the agency must evaluate the strength of any potential public interest in disclosure. See
NARA v. Favish, 541 U.S. 157, 172 (2004). Finally, the agency must balance the privacy interest
with the public interest and determine whether disclosure “would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
As to the first step, the parties agree that the withheld information is a “similar file[]”
under the FOIA exemption. The court must next identify whether “disclosure would compromise
a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired Fed. Emps. v.
Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). The Supreme Court has made clear that “disclosure
of a list of names and other identifying information” does not inherently violate individuals’
privacy interest. Dep’t of State v. Ray, 502 U.S. 164, 176 n.12 (1991). Instead, “whether
disclosure of a list of names is a ‘significant or a de minimis threat depends upon the
characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to
ensue.’” Id. (quoting Horner, 879 F.2d at 877). However, the Supreme Court has also expressed
“a reluctance in the FOIA context ‘to disparage the privacy of the home.’” See Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002) (quoting U.S. Dep’t of Def. v. FLRA,
510 U.S. 497, 501 (1994)). The inquiry is thus fact-specific. In Horner, the D.C. Circuit

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considered disclosure of a list that contained names and private addresses, as well as whether each
person received a monthly annuity payment from the federal government. 879 F.2d at 876. The
court found a significant privacy interest because the list had “apparent commercial value” and
“interested businesses, charities, and individuals could, and undoubtedly would, subject the listed
annuitants to an unwanted barrage of mailings and personal solicitations.” Id. at 876–77 (internal
quotation omitted). The court in Norton similarly identified at least a weak privacy interest when
it considered a list of addresses showing where certain owls had been sighted, determining that the
addresses could be linked to individuals’ names through public records and those individuals
could be subjected to unwanted trespassing on their properties. 309 F.3d at 34–36.
Here, the court must evaluate what, if any, “characteristic(s) [are] revealed by virtue of
being on the particular list, and the consequences likely to ensue.” Ray, 502 U.S. at 176 n.12. The
Army Corps does not contend that the list reveals anything about the individuals on it apart from
the location of their properties. Therefore, it must argue that individuals would still be
“subject[ed] . . . to an unwanted barrage of mailings and personal solicitations.” Horner, 879 F.2d
at 876. To do so, the Army Corps asserts that “once that information is released [the individuals]
could become targets of harassing inquiries and uninvited solicitation if their identities are
released simply because of their proximity to the project.” (Faustino Decl. ¶ 21). The Army
Corps did not elaborate on the nature or source of these “harassing” and “uninvited” contacts, nor
did it provide the court with anything beyond speculation regarding the results of disclosing the
distribution list. It appears that the only information revealed about the individuals on the list is
that their properties are adjacent to the proposed project, which is information any individual
could discern from simply looking at property records or a map of the area. Indeed, Plaintiff’s
stated goal of contacting those individuals who live near the project area but were not notified of

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the project by the Army Corps, (see Pl. Mem. at 1), implies that individuals’ addresses are already
readily accessible, further undermining Defendant’s justification for withholding the public notice
distribution list.
In the court’s view, the Army Corps has not met its burden of establishing that there is a
significant privacy interest in protecting from disclosure the individuals’ names and addresses on
the distribution list. While the threat of an “unwanted barrage of mailings and personal
solicitations” may establish a privacy interest, see Horner, 879 F.2d at 876, the Army Corps has
failed to allege with any specificity what unwanted contact these individuals would face simply by
being identified as living near the proposed project. This privacy interest thus falls below the level
required to withhold responsive records under FOIA Exemption 6.
The court next considers the public interest in disclosure and balances the public and
private interests. Multi Ag Media LLC, 515 F.3d at 1229–30. Absent a significant privacy
interest, as here, then any identifiable public interest would weigh in favor of disclosure. In the
FOIA context, the relevant public interest is “the extent to which disclosure of the information
sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens
known what their government is up to.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999)
(quoting FLRA, 510 U.S. at 497). AquAlliance states that it requested the names and addresses on
the Army Corps’ distribution list to determine who was and was not notified by the Army Corps of
the project proposal and whether they had an opportunity to participate in a public comment
process. (Vlamis Decl. ¶ 7). The withheld information reflects on the actions taken by the
government in conducting its official business and reveals at least some information about what
the government is up to. Therefore, the court finds that there is an identifiable public interest in

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the disclosure of the withheld records, and given the lack of a significant privacy interest, the court
further finds that this public interest weighs in favor of disclosure.
Because “under Exemption 6, the presumption in favor of disclosure is as strong as can be
found anywhere in [FOIA],” Norton, 309 F.3d at 32, the court concludes that the Army Corps did
not properly apply Exemption 6 to the names and addresses on the requested distribution list, and
the withheld responsive records must be disclosed. The court DENIES the Army Corps’ motion
and GRANTS Plaintiff’s cross-motion as to Count II.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED IN

PART and DENIED IN PART, and Plaintiff’s cross-motion is GRANTED.

Date: March 22, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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