Haverman v. Astrue

Filing 49

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/24/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOEL HAVEMANN,
Plaintiff,
v.
Civil Action No. ELH-10-1498
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION
This case concerns the redaction of personal identifying information from data disclosed
by the Social Security Administration (“SSA”) to a journalist, Joel Havemann, in response to
requests submitted by Havemann pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, et seq. Claiming that these redactions violate SSA’s disclosure obligations under
FOIA, Havemann seeks injunctive relief compelling the full release of the requested records.
See Complaint ¶¶ 5-14 (ECF 1).1 Having released records on more than 140 million individuals,
SSA filed a Motion for Summary Judgment on the grounds that further disclosure would
constitute a “clearly unwarranted invasion of personal privacy” under 5 U.S.C. § 552(b)(6), and
that the remaining data is therefore exempt from disclosure under FOIA. The Motion has been
fully briefed, and no hearing is necessary to resolve it.2 See Local Rule 105.6. For the reasons
that follow, I will grant the Motion.
1

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as this matter
arises under federal law.
2

SSA filed the Motion on October 13, 2011, but it did not become ripe until June 7,
2012. See Motion for Summary Judgment and Memorandum in Support (collectively, “Motion”

Factual Background
Joel Havemann, formerly a reporter for the Los Angeles Times, is a freelance journalist
currently working on a story about social security benefit payments that he hopes to publish with
the National Journal. Complaint ¶ 5. On March 10, 2010, based on information gleaned from a
former SSA employee, Ronald Cooley, Havemann submitted six FOIA requests to SSA, seeking
the production of a wide variety of data concerning benefits decisions for individual social
security recipients. See Complaint Exh. 1; Wiggins Decl. ¶¶ 8-25. In particular, Havemann
sought information from two SSA databases: the Supplemental Security Record (“SSR”) and the
Master Beneficiary Record (“MBR”). See Complaint Exh. 1; Wiggins Decl. ¶¶ 8-25.
The SSR contains information used to administer the Federal Supplemental Security
Income (“SSI”) benefit program, including a record of each individual who has applied for SSI
benefits and each individual who has applied for and is entitled to “Special Veterans Benefits”
under Title VIII of the Social Security Act. Wiggins Decl. ¶ 10 n.1, ¶ 12. The MBR holds
records for every beneficiary of Old Age, Survivors, and Disability Insurance (“OASDI”) under
or “MSJ”) (ECF 27 & 27-1). In support of its Motion, SSA offered the Declarations of Dawn
Wiggins, the Freedom of Information Officer for SSA’s Office of Privacy and Disclosure
(“ODP”) and Deputy Executive Director of ODP, who was personally involved in responding to
Havemann’s FOIA requests (“Wiggins Decl.”) (ECF 27-2), and Vickie Gregory, the Director of
the Potential Entitlement Staff with SSA’s Office of Quality Performance (“Gregory Decl.”)
(ECF 27-32). Havemann filed Memorandum of Points and Authorities in Opposition to the
Motion on December 15, 2011, (“Response” or “Opposition”) (ECF 32), accompanied by a
Declaration of his consultant, Ronald Cooley (“Cooley Decl.”) (ECF 32-2). After obtaining
several extensions (ECF 34, 36, 38, 40), SSA filed its Reply in Support of its Motion on April
13, 2012 (“Reply”) (ECF 41), along with a Supplemental Declaration of Vickie Gregory (“Supp.
Gregory Decl.”) (ECF 42-1), and the Declaration of Daniel Zabronksy, Director of Statistics and
Modeling within SSA’s Office of Quality Performance and a member of SSA’s Data Disclosure
Review Board (“Zabronksy Decl.”) (ECF 42-6). On June 7, 2012, with leave of court,
Havemann filed a Surreply in Response to Defendant’s Reply (“Surreply”) (ECF 48),
accompanied by a Supplemental Declaration by Ronald Cooley (“Supp. Cooley Decl.”) (ECF
48-1).
-2-

Title II of the Social Security Act, and contains information on claimants whose benefits were
denied or disallowed, as well as information about individuals eligible for SSI payments. Id. at ¶
13 n.2. SSA maintains these databases in its regular course of business. Gregory Decl. ¶ 8.
SSA, like other federal agencies, has issued regulations to address privacy concerns
relating to public disclosure of private data. See 20 C.F.R. § 402.100(b) (explaining that “in
[SSA’s] evaluation of requests for records[, SSA] attempt[s] to guard against the release of
information that might involve a violation of personal privacy because of a requester being able
to ‘read between the lines’ or piece together items that would constitute information that
normally would be exempt from mandatory disclosure under Exemption Six”); see also 45
C.F.R. § 164.514(b)(2)(i) (HHS regulation listing eighteen data fields to be withheld from
disclosure requests to de-identify records, including “[a]ll geographic subdivisions small than a
State” and “[a]ll elements of dates (except year) for dates directly related to an individual”).
At issue here are the disclosures made by SSA in response to Havemann’s FOIA
Requests I, II and V.3

In addition to SSA employees specifically tasked with evaluating

disclosure requests, several SSA employees with other primary responsibilities devoted
significant time and resources to determine the extent to which disclosure was feasible to satisfy
Havemann’s requests. See Supp. Gregory Decl. ¶¶ 119-24.
FOIA Request I
In FOIA Request I, the “Veteran Couple FOIA Request,” Havemann asked for SSR
records for married couples who, because at least one member of the couple received a pension
3

Although SSA did not immediately disclose the records sought in Requests III, IV, and
VI, Havemann was satisfied with the records that SSA eventually disclosed. MSJ Exh. 1-Q
(ECF 27-19) (FOIA III disclosure letter); MSJ Exh. 1-T (ECF 27-22) (FOIA IV disclosure
letter); MSJ Exh. 1-Z (ECF 27-28) (FOIA VI disclosure letter).
-3-

or other compensation from the Department of Veterans Affairs for age, blindness, or disability,
were denied SSI benefits on the grounds of excess income. See MSJ Exh. 1-A (ECF 27-3).
Havemann’s stated interest in the data is to shed light on SSA’s handling of a regulatory policy
concerning war veterans and their spouses who receive a VA pension and also file for SSI
benefits. Cooley Decl. ¶ 20a. SSA initially advised Havemann that it could not provide the
records sought in FOIA Request I. MSJ Exh. 1-I (ECF 27-11). However, on November 10,
2010, after reevaluating the feasibility of disclosure, SSA released a subset of the information
Havemann sought. MSJ Exh. 1-J (ECF 27-12). The table below compares, in the left-hand
column, the data sought by Havemann against, in the right-hand column, the data released by
SSA. See Reply Exh. 4B (ECF 42-3). Data fields not released or released in part are identified
by italic font.
FOIA Request I (Veteran Couple Request)
Data Requested
Data Released
Social Security Number (“SSN”) or alternative Alternative identifier4
identifier
Current or last shown “Master Record”5
Yes
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 county of No (only state code released)
residence
Current SSI status
Yes
Reason for SSI denial
Yes
Date of status change due to excess income
Yes
6
Disability Payment Code
Yes
4

Rather than providing social security numbers, SSA used an alternative identifier, as
suggested in Havemann’s request. MSJ Exh. 1-A at 3.
5

The “Master Record” refers to a 2-character code indicating, for example, whether the
individual is an aged individual with an eligible spouse or an aged individual with an ineligible
spouse. See Reply Exh. 4B at 1.
6

The Disability Payment Code is a code used to describe the type of disability benefit
award. See Reply Exh. 4B at 2.
-4-

Ledger Account File (“LAF”) Code7
Date of birth
Earned income
Unearned income

Yes
No (only year released)
Yes
Yes

Despite these withholdings, Havemann received most of the requested fields of data for
each record. Specifically, SSA released 15,096 electronic records in response to FOIA Request
I. Gregory Decl. ¶ 9.
FOIA Request II
In FOIA Request II, the “QMB Medicare FOIA Request,” Havemann requested SSR and
MBR data for SSI recipients over the age of 65 who are not currently receiving OASDI benefits,
along with data indicating enrollment in Medicare Part A and other Medicare information. See
MSJ Exh. 1-B (ECF 27-4). Havemann’s stated interest in the data is “to shed light on . . . SSA’s
handling of referrals of SSI recipient[s] for Premium Part A Medicare . . . through the QMB
program.” Cooley Decl. ¶ 20b. SSA initially advised Havemann that it could not provide the
records sought in FOIA Request II. MSJ Exh. 1-M (ECF 27-15). However, on November 10,
2010, after reevaluating the feasibility of disclosure, SSA released a subset of the information
Havemann sought. MSJ Exh. 1-N (ECF 27-16). The table below compares, in the left-hand
column, the data sought by Havemann against, in the right-hand column, the data released by
SSA. See Reply Exh. 4B. Data fields not released or released in part are identified by italic font.
FOIA Request II (QMB Medicare Request)
Data Requested
Data Released
SSN or alternative identifier of the primary Alternative identifier9
7

The Ledger Account File code is a 3-digit code indicating the individual’s current
payment status under Title II Old Age, Survivors, and Disability Insurance payment. The LAF
code is displayed in the SSR database, but created and managed from the MBR database. Reply
Exh. 4B at 9.
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record holder8
Current or last shown “Master Record”
9-digit zip code
SSI application date
Code for most recent state and county of
residence
“Individual Recipient Identification” Code10
Current “Payment Status Code”
“Beneficiary Identification Code” (“BIC”)11
Date of birth
LAF Code
March 2010 Federal SSI amount payable
State SSI payment level
Hospital
insurance
enrollment
and
supplemental medical insurance information
Citizenship/alien status

Yes
No (only initial 5 digits of zip code released)
Yes
No (only state code released)
Yes
Yes
Yes
No (only year released)
Yes
Yes
Yes
Yes
Yes

Despite the withholdings, Havemann received the majority of the requested fields of data
for each record. Specifically, SSA released 903,572 electronic records in response to FOIA
Request II. Gregory Decl. ¶ 9.
FOIA Request V
In FOIA Request V, the “MBR Request,” Havemann requested MBR data on deceased

9

Rather than providing social security numbers, SSA opted to use an alternative
identifier for the record, as suggested by Havemann. MSJ Exh. 1-B at 3 (ECF 27-4).
8

Each record in the databases, including those detailing the benefits of family members
or other beneficiaries, is identified by the primary record holder’s SSN. The primary record
holder is the individual whose status permits benefit payments to family members or other
beneficiaries. In turn, each beneficiary is identified by the “Beneficiary Identification Code,”
which indicates the relationship between the primary record holder and the beneficiary (e.g., a
BIC of “B” identifies the beneficiary the primary account holder’s living wife, and “C1”
identifies the primary account holder’s first child). Supp. Gregory Decl. ¶¶ 28-35. The term
“auxiliary” is also used to represent a beneficiary in such records.
10

The Individual Recipient Identification code is a 2-digit code that defines the
individual within the database (e.g., “DC” represents “disabled child”). Reply Exh. 4B at 5.
11

See note 8, supra.
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“primaries” (i.e., the SSN “holders” on whose earnings the MBR record is based) and any
beneficiary also on that primary’s record. See MSJ Exh. 1-E (ECF 27-7). Havemann’s stated
interest in the data is to shed light on SSA’s administration of Title 38 of the United States Code,
and in particular those provisions dealing with veterans’ pensions, benefits claims, and outreach.
See Cooley Decl. ¶ 20c. On September 19, 2010, SSA asked Havemann to clarify FOIA Request
V, and on June 22, 2011, provided a subset of the information Havemann sought. Def. Exh. 1-V,
1-W. The table below compares, in the left-hand column, the data sought by Havemann against,
in the right-hand column, the data released by SSA. See Reply Exh. 4B. Again, data fields not
released or released in part are identified by italic font.
FOIA Request V (MBR Request)
Data Requested
Data Released
SSN of the deceased primary record holder
No12
BIC
Yes
13
“Payment Identification Code”
Yes
SSI entitlement and termination dates
Yes
Code for most recent state and county of No (only state code released)
residence
Primary Insurance Amount (“PIA”)14
Yes
Month and year of PIA
Yes
9-digit zip code
No
Date of birth
No (only year released)
LAF code
Yes
15
Monthly Benefit Amount (“MBA”)
No

12

Each category of data that was withheld was withheld only for deceased primary record
holders with living auxiliaries, and for the living auxiliaries. Such data was otherwise released
for records of deceased primary record holders whose auxiliaries were also deceased. See Reply
Exh. 4B.
13

The Payment Identification Code is an alpha-numeric code that identifies the type of
payment being made to a beneficiary. Wiggins Decl. ¶ 22.
14

PIA represents the benefit an individual would have received if he or she had elected to
receive benefits at the normal retirement age. Wiggins Decl. ¶ 22.
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Monthly Benefit Payment (“MBP”)16
SSI benefit type
SSI status code

No
Yes
Yes

Despite these withholdings, Havemann received the majority of the requested fields data for each
record.

Specifically, SSA released 140,917,347 records in response to FOIA Request V.

Gregory Decl. ¶ 9.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In resolving a summary judgment motion, a court must view all of the facts,
including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
see also Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).
“A party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts’”
showing that there is a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)); see Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986). The “judge’s function” in reviewing a motion for summary judgment is not
15

MBA represents the “monthly benefit amount,” which is the total benefit amount
before any deductions for Medicare, overpayment recovery, or other income is made. Gregory
Decl. ¶ 95.
16

MBP represents the portion of the MBA paid after deductions. Gregory Decl. ¶ 96.
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“to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. There is a dispute of material fact that
precludes summary judgment “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248. “As a general rule, . . . FOIA determinations
should be resolved on summary judgment.” Hanson v. U.S. Agency for Int’l Devel., 372 F.3d
286, 290 (4th Cir. 2004).
Discussion
“The Freedom of Information Act was enacted to facilitate public access to Government
documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991) (citation omitted), and to
vindicate the public’s right to know “what their government is up to.” U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989) (quotation marks omitted).
Consistent with this objective, FOIA requires that “each [federal] agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any) and procedures to be followed, shall make
the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
An agency’s disclosure obligations are not unlimited, however.

“While the FOIA

generally authorizes disclosure of information contained in public records, it also expressly
recognizes that the public interest is not always served by disclosure.” U.S. Dep’t of Health &
Human Servs. v. Fed. Labor Relations Auth., 833 F.2d 1129, 1134 (4th Cir. 1987). Thus, an
agency may withhold information where a record falls within one of FOIA’s nine specific
statutory exemptions. See 5 U.S.C. § 552(b) (listing exemptions); U.S. Dep’t of Defense v. Fed.
Labor Relations Auth., 510 U.S. 487, 494 (1994) (“FLRA”) (noting that FOIA incorporates “a
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general philosophy of full agency disclosure unless information is exempted under clearly
delineated statutory language” (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 360-61
(1976))); Hanson, 372 F.3d at 290 (explaining that nine FOIA exemptions “are designed to
safeguard various public interests against the harms that would arise from overbroad
disclosure”).
When seeking to withhold information, the agency bears the burden of showing that the
records fall within one of FOIA’s specific exemptions to disclosure. 5 U.S.C. § 552(a)(4)(B);
City of Va. Beach, Va. v. U.S. Dep’t of Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993). “The
government can meet this burden by describing the withheld material with reasonable specificity
and explaining how it falls under one of the enumerated exemptions.” Hanson, 372 F.3d at 290
(citation omitted). No deference is owed to the agency’s determination to withhold records,
however. 5 U.S.C. § 552(a)(4)(B). Nevertheless, affidavits submitted by an agency are entitled
to “‘a presumption of good faith.’” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
At issue in this case is 5 U.S.C. § 552(b)(6) (“Exemption 6”), which exempts from
FOIA’s mandate all “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” Exemption 6 permits a federal
agency to withhold records where (i) the disputed records constitute “personnel,” “medical,” or
“similar files,” (ii) the disclosure of which would amount to a “clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6); see Core v. U.S. Postal Serv., 730 F.2d 946, 947 (4th
Cir. 1984) (“If the files fall within [the ‘similar files’] definition, the remaining issue is whether
disclosure would constitute a clearly unwarranted invasion of personal privacy.”). The purpose
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of this exemption is “to protect individuals from the injury and embarrassment that can result
from the unnecessary disclosure of personal information.” Core, 730 F.2d at 947 (citing U.S.
Dep’t of State v. The Wash. Post Co., 456 U.S. 595, 599 (1982)).
i.

Similar Files
There is no dispute that the social security records at issue in this case qualify as “similar

files.” 5 U.S.C. § 552(b)(6). The term “similar files” covers “detailed Government records
[concerning] an individual [that] can be identified as applying to that individual.” Wash. Post,
456 U.S. at 602 (quoting H.R. Rep. No. 89-1497, at 11 (1966)); Core, 730 F.3d at 947. The data
at issue here, including social security numbers, addresses, names, and information regarding
eligibility or application for benefits, are all linked with specific individuals, and hence satisfy
the first requirement for nondisclosure. See, e.g., Wash. Post, 456 U.S. at 600 (indicating that
“[i]nformation such as place of birth, date of birth, date of marriage, employment history, and
comparable data” qualifies for consideration under Exemption 6).
ii.

Clearly Unwarranted Invasion of Privacy

The more difficult question presented here is whether disclosure of the withheld
information would “constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). To determine whether disclosure would give rise to a “clearly unwarranted” invasion
of privacy under Exemption 6, “‘a court must balance the public interest in disclosure against the
interest Congress intended the [e]xemption to protect.’” FLRA, 510 U.S. at 495 (alteration in
original) (quoting Reporters Comm., 489 U.S. at 776). This entails a three-step inquiry. First, an
agency must articulate a non-speculative privacy interest in the requested records. See Nat’l
Ass’n of Retired Fed. Empls. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989) (“If no significant
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privacy interest is implicated (and if no other Exemption applies), FOIA demands disclosure.”)
(citing U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989)). Second, a court must verify
the existence of a public interest in disclosure. See, e.g., Reporters Comm., 489 U.S. at 771-75.
In so doing, “the only relevant ‘public interest in disclosure’ to be weighed . . . is the extent to
which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]
significantly to public understanding of the operations or activities of the government.’” FLRA,
510 U.S. at 495 (alterations and emphasis in original) (quoting Reporters Comm., 489 U.S. at
775). Finally, a court must weigh the two interests, mindful that even a very slight privacy
interest trumps an insubstantial public interest, see id. at 500, and that a speculative privacy
interest can never justify withholding, even in the absence of a powerful public interest. See
Horner, 879 F.2d at 874.
a. Privacy Interests
SSA identifies two core privacy interests that it contends are implicated here. First,
“[t]he privacy interest protected by Exemption 6 ‘encompass[es] the individual’s control of
information concerning his or her person,’” FLRA, 510 U.S. at 500 (alteration in original)
(quoting Reporters Comm., 489 U.S. at 763), because, as numerous courts have recognized,
“individuals generally have a large measure of control over the disclosure of their own identities
and whereabouts.” Horner, 879 F.2d at 875; see Am. Fed. of Gov’t Empls., AFL-CIO, Local
1923 v. U.S. Dep’t of Health & Human Servs., 712 F.2d 931, 932 (4th Cir. 1983) (per curiam)
(upholding SSA’s decision to withhold from labor unions the home addresses of employees
under Exemption 6). This interest “does not dissolve simply because that information may be
available to the public in some form.” FLRA, 510 U.S. at 500; see Reporters Comm., 489 U.S. at
- 12 -

763-71 (discussing privacy interest in controlling disclosure of identifying information in light of
centralized computer databases).
In FLRA, for example, labor unions sought disclosure of FLRA employees to assist in
union-related communications.

See 510 U.S. at 490.

The Supreme Court held that,

notwithstanding the public availability of employee names and addresses, the employees had a
significant interest in controlling information related to their identities. See id. at 500. This
interest is enhanced when information is “compiled through the power of the State,” such that
individuals have little choice or control over the initial disclosure and subsequent use of the data.
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 170-72 (2004) (applying Exemption 7
to law enforcement documents).17
Individuals who apply for or receive various Social Security benefits are required by law
to provide personal identifying information and data on income, family status, and medical
records, as well names, addresses and other identifying information. Wiggins Decl. ¶ 59. To
protect the confidentiality of this information, SSA maintains the requested records in databases
subject to the Privacy Act of 1974, 5 U.S.C. § 552a, from which the records cannot normally be
17

Favish addressed disclosure of graphic crime-scene photographs under Exemption 7,
which pertains to records “compiled for law enforcement purposes.” 541 U.S. at 164-65
(quoting 5 U.S.C. § 552(b)(7)). Exemption 7 also differs from Exemption 6 in that it permits
withholding of records that “could reasonably be expected to constitute an unwarranted invasion
of personal privacy,” whereas Exemption 6 requires that such an invasion be “clearly
unwarranted.” See id. at 165-66. Nevertheless, I believe that Favish makes clear that the privacy
interest in controlling personal information is particularly sensitive to an individual’s choice in
disclosing such information to the state, and where compiled through the state’s coercive power,
that privacy interest is heightened. See id. at 172. As the Supreme Court observed in Whalen v.
Roe, 429 U.S. 589, 605 (1977), “[t]he collection of taxes, the distribution of welfare and social
security benefits, the supervision of public health, the direction of our Armed Forces, and the
enforcement of all criminal laws all require the orderly preservation of great quantities of
information, much of which is personal in character and potentially embarrassing or harmful if
disclosed.”
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released without the individual’s written consent.

Id. § 552a(b)(2); Wiggins Decl. ¶ 58.

Accordingly, there is a significant privacy interest in the control of private information
maintained in SSA’s databases. See Favish, 541 U.S. at 166 (observing that “[t]here is special
reason, therefore, to give protection to this intimate personal data, to which the public does not
have a general right of access in the ordinary course”); Doe v. Gen. Servs. Admin., 544 F. Supp.
530, 533 (D. Md. 1982) (discussing purposes of Privacy Act, including Congressional finding
that “the increasing use of computers and sophisticated information technology . . . has greatly
magnified the harm to individual privacy that can occur from any collection, maintenance, use,
or dissemination of personal information”).
Second, substantial privacy interests are implicated by the disclosure of information that
has the potential to invade an individual’s privacy or harm the individual through commercial or
criminal use. See, e.g., Local 1923, 712 F.2d at 932 (finding that employees had “a strong
privacy interest” in home addresses because “[d]isclosure could subject the employees to an
unchecked barrage of mailings and perhaps personal solicitations”); Core, 730 F.2d at 948-49
(holding that unsuccessful applicants to Department of Justice had strong privacy interests in
nondisclosure of application files because of potential embarrassment or harm). As documented
in FOIA Tables I, II and V, supra, the released records include the type, source, and amount of
household income, the government benefits to which the individual is entitled, and health
insurance information—information that would be of significant interest for commercial or even
criminal purposes. See, e.g., Horner, 879 F.2d at 876. Thus, there is a clear privacy interest in
limiting the production of millions of these social security records.

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Recognition of these privacy interests is only the beginning, not the end, of the inquiry,
because SSA must also demonstrate that the privacy interests at stake are more than speculative.
Dep’t of the Air Force v. Rose, 425 U.S. 352, 378 (1976) (rejecting as privacy interest a slight
possibility that disclosure might trigger recollection of an individual based on generic
descriptions); Horner, 879 F.2d at 874 (requiring “substantial, as opposed to de minimis, privacy
interest”). Here, as redacted, the records released to Havemann were “de-identified.” See 5
U.S.C. § 552(b) (requiring disclosure of reasonably segregable data). In other words, absent
further disclosure by SSA, the records remain unassociated with any name, address, birth date,
zip code, or other information that could identify a beneficiary. The strength of the privacy
interests discussed above is thus contingent on the likelihood that the release of the disputed data
would “link” these private records to specific individuals. See, e.g., Consumers’ Checkbook Ctr.
for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1050-51 (D.C.
Cir. 2009) (listing cases recognizing privacy interests in financial information and data that could
lead to identification of an individual’s financial information); Horner, 879 F.2d at 878 (“For the
Exemption 6 balance to be implicated, there must, of course, be a causal relationship between the
disclosure and the threatened invasion of privacy.”).
Critically, although speculative privacy interests can never justify withholding, see Rose,
425 U.S. at 378-80 & n.19, an individual’s privacy interest does not diminish merely because
several steps are needed to connect private information to the individual’s identity.

See

Consumers’ Checkbook, 554 F.3d at 1049-51 (finding privacy interest in data that could be
combined to reveal private information); Horner, 879 F.2d at 878 (explaining that “[w]here there
is a substantial probability that disclosure will cause an interference with personal privacy, it
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matters not that there may be two or three links in the causal chain”). And, even where data may
seem innocuous or is otherwise publicly available, it may implicate an individual’s privacy
interest because of the context in which it is disclosed or other information with which it is or
can be associated. See Consumers’ Checkbook, 554 F.3d at 1049-51; Aronson v. Dep’t of Hous.
& Urban Dev., 822 F.2d 182, 186 (1st Cir. 1987). For example, an isolated piece of data, such
as a year of birth, may not reveal much information about an individual. But, when coupled with
the month of birth, the marginal effect of knowing the year increases exponentially, and even
more so when the third missing field, the day of birth, is disclosed.
In Consumers’ Checkbook, for example, the plaintiff submitted a FOIA request to the
Centers for Medicare and Medicaid Services (CMS) for release of data pertaining to the
Medicare claims submitted by various physicians during 2004, including the diagnosis, type and
place of service, and the Unique Physician Identifying Number (“UPIN”). Id. at 1049. A
physician’s name, office zip code, specialty, and UPIN were publicly available online, as were
the fees received from Medicare for performing a specific procedure. Id. Thus, “[c]ombined
with the publicly available fee schedule, the data requested . . . [could have been] used to
calculate the total payments Medicare made to any individually identified physician for claims
submitted in 2004.” Id. In holding that Exemption 6 justified CMS’s withholding of the
requested records, the court found that the potential to link private information with physicians’
identities invaded the physicians’ “substantial privacy interest in the total payments they receive
from Medicare for covered services.” Id. at 1051.
Citing Department of the Air Force v. Rose, 425 U.S. at 378, 380 n.19, Havemann
suggests that that this “link in the chain” rationale has been rejected as relying on an overly

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speculative privacy interest. See Opposition at 15-22; Surreply at 6-7; see also Norwood v.
F.A.A., 993 F.2d 570, 574-75 (6th Cir. 1993).
In Rose, plaintiffs sought the release of redacted case summaries on honor and ethics
hearings of Air Force cadets. 425 U.S. at 354-55. The Air Force asserted a privacy interest on
the grounds that the case summary for one of the hearings, notwithstanding redaction, might
“trigger recollection of identity” by another former cadet solely through the redacted summary.
Id. at 378.

In rejecting the sufficiency of this interest, the Supreme Court observed that

Exemption 6 requires “threats to privacy more palpable than mere possibilities.” Id. at 380 &
n.19.

Some circuits have interpreted Rose as limiting Exemption 6’s privacy interest to

situations where the information would, by itself, identify an individual. See Norwood, 993 F.2d
at 574-75 (“[A] view of protecting privacy – excluding from disclosure any and all fragments of
information that might assist a diligent researcher in identifying a person – is not supportable.”);
Arieff v. U.S. Dep’t of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983) (asserting in dicta that
Exemption 6 “does not apply to an invasion of privacy produced as a secondary effect of the
release. . . . [I]t is the very ‘production’ of the documents which must ‘constitute a clearly
unwarranted invasion of personal privacy.’”) (Emphasis in original).
The privacy interest asserted in Rose, however, was categorically different from the
rationale presented here. As the D.C. Circuit has since explained:
The concern in Rose is not . . . with the number of steps that must be taken to get
to the threatened effect; rather, Rose turns upon the likelihood that the effect will
ever come to pass. In that case, there was substantial doubt that any invasion of
privacy would occur, and it was that uncertainty that led the court to rule as it did.
See Horner, 879 F.2d at 878. In other words, “the Court’s concern is not limited to those FOIA
cases, if any such cases there be, in which the feared invasion of privacy is caused by the release
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itself.” Id. The dispositive question where linking is concerned is thus the likelihood that the
asserted invasion of privacy will result. See id.
In detailed affidavits and briefing materials submitted here, SSA offers explanations of
how each piece of withheld data could be manipulated to attribute private financial information –
such as benefit status and amounts – to particular individuals, akin to the concern in Consumers’
Checkbook. Indeed, the record reflects that nondisclosure was a carefully considered decision by
SSA based on the way that each field of data interacts with the information already released to
Havemann, as well as publicly available information. According to SSA, linkage can occur in
two ways.
First, certain fields of the withheld data function as “unique identifiers.” Supp. Gregory
Decl. ¶ 11. A unique identifier, like a SSN, is a field of data that is defined to identify a single
individual.

Id. Where an interested party has a record from one database with a unique

identifier, a simple search of a target database that includes the same unique identifier will permit
matching of the records from both databases. Id. at ¶ 12.
Relevant to this case, the SSNs of deceased primary record holders with living
auxiliaries, withheld with respect to the FOIA V release, would, when coupled with the data
already available, link the auxiliaries to a variety of private information. As indicated in the
FOIA V Table, that release already contains a field of data for a living auxiliary’s Beneficiary
Identification Code or “BIC.”

Although a living auxiliary’s BIC is not unique (it merely

identifies the relationship between the living auxiliary and the deceased primary), the Master
Beneficiary Record (“MBR”) database uniquely identifies living auxiliaries by the combination
of a BIC and the SSN of the primary record holder. Supp. Gregory Decl. ¶¶ 28-31. Because
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SSA has already released the BIC for every record responsive to FOIA Request V, as well as
Requests II and VI, see Reply Exh. 4B, disclosure of the primary record holder’s SSN would
uniquely identify each beneficiary. Supp. Gregory Decl. ¶ 33; Reply at 8. Notably, this unique
identifying information can be matched to data in the publicly available Death Master File
(“DMF”), a database that contains a variety of information about deceased individuals, including
the individual’s social security number and full name; codes indicating how death was verified;
dates of birth and death; state and county code of residence; zip code of last residence; and zip
code of where the last lump sum payment was sent. Gregory Decl. ¶ 42. By matching the SSN
for these records to the DMF, an interested party would be able to link the names, addresses, and
other information to the record of a deceased “primary,” and in turn, the income levels and
benefits of the living auxiliaries. Supp. Gregory Decl. ¶ 34-35; Gregory Decl. ¶ 125. In my
view, release of the SSNs at issue for FOIA V would jeopardize personal privacy.
Second, although not all data fields qualify by definition as unique identifiers, many data
fields may nevertheless identify specific records based on the context in which they are used.
These “functionally unique identifiers” are elements of data that, alone, do not by definition
uniquely identify an individual, but will identify an individual when combined with other
information or simply because there happens to be only one record in a database with a specific
value. Supp. Gregory Decl. ¶¶ 13-19. Data such as zip codes, county codes, and birth dates are
all functionally unique identifiers, because they can be used in concert with other data to identify
specific individuals. See, e.g., Latanya Sweeney, Weaving Technology and Policy Together to
Maintain Confidentiality, 25 J. L., Med. & Ethics 98, 98-110 (June 1997) (finding that 69% of

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individuals on the Cambridge, Massachusetts voter lists were uniquely identified by birth date
and five-digit zip code).
SSA asserts that the remaining withheld data fields – the county codes, zip codes, and full
birth dates withheld from FOIA Requests I, II and V; the SSI application date withheld from
FOIA Request I; and the MBA/MBP withheld from FOIA Request V – serve as “functionally
unique identifiers.” Supp. Gregory Decl. ¶¶ 13-14. It recounts how the release of this additional
data would permit cross-referencing between all of the data sets released to Havemann, as well
as publicly available databases, such that private information can be identified as belonging to a
specific individual. As SSA explains, an interested party with these additional data fields would
only need to conduct sequential searches based on unique or functionally unique identifiers to
narrow down a target database until a single record is located. Id. at ¶¶ 15-19. The data sets that
have already been released can be filtered through, for example, matching of a SSN, see id. at ¶¶
38-46 (filtering MBR/FOIA V using release of SSN for 56 million records where both primary
and beneficiaries are deceased); id. at ¶¶ 47-54 (filtering DMF with same released SSNs); a state
code, see id. at ¶¶ 55-61 (filtering FOIA I, II and V by released state code); a zip code, see id. at
¶¶ 62-65 (filtering FOIA I and II and DMF by released zip codes); or a spouse’s information, see
id. at ¶¶ 66-69 (filtering FOIA I and V by released spousal records).
According to SSA, further disclosure would enable matching between the data releases to
identify a specific person. Id. at ¶¶ 13-14. To illustrate, if Havemann received the month of
birth in addition to the year of birth, records released in response to FOIA Request V could be
manipulated to identify a specific person. Zabronsky Decl. ¶¶ 55-62. The number of individuals
identifiable through this method of cross-referencing would increase if full zip codes were also
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released. Id. at ¶ 91 ([I]t is a matter of fact that most individuals [with records in the MBR] in
the 02720 zip code are the only ones who have their birthdate.”); Reply Exh. 5-I (ECF 42-15).
This is likewise the case for a combination of the county code and birth date. Zabronski Decl.
¶¶ 80-84. By providing SSI application dates for FOIA II but not FOIA I, zip codes for FOIA I
but not FOIA II, and unearned income for FOIA I but not MBA/MBP for FOIA V, SSA
maintains that it has prevented an interested party from attempting such matching. See Supp.
Gregory Decl. ¶¶ 70-75.
Havemann suggests that SSA’s piecemeal release of data shows the arbitrary nature of its
decision to withhold. I am not persuaded that such “inconsistencies” in disclosure are arbitrary
or otherwise undermine SSA’s justifications for withholding data. See Opposition at 22-24. It is
also worth noting that failing to calibrate each data release would not only enable the use of
functionally unique data for cross-database identification, see, e.g., Reply Exh. 5E-5H, but would
also make it more difficult for SSA to respond to future FOIA requests, because of the variety of
information previously released. This, in turn, would impinge on SSA’s ability to respond
consistently to disclosure requests without jeopardizing individual privacy. See Reply at 24.
And, as SSA further illustrates, matching between the requested data fields will yield a
“superset” that can subsequently be linked to publicly available databases. See Gregory Decl. ¶¶
44-69 (matching birth dates and zip codes); id. at ¶¶ 70-81 (matching SSI application dates); id.
at ¶¶ 82-94 (matching zip codes); id. at ¶¶ 95-113 (matching MBA and MBP); id. at ¶¶ 114-23
(matching county codes); id. at ¶¶ 124-25 (matching SSN of deceased individuals). By pairing
the FOIA releases with information that is publicly available, through the DMF or online
resources such as the Social Security Death Index, LexisNexis, www.intelius.com, and various
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other search engines, private information in the FOIA records can be connected to a wealth of
publicly available identifying information. Id. at ¶ 17. In sum, SSA contends that the inclusion
of any of the additional fields would allow an interested party to connect the released income,
benefits and other financial information to a particular individual.
The Supreme Court has made clear that “the identity of the requesting party has no
bearing on the merits of his or her FOIA request,” Reporters Comm., 489 U.S. at 771, and
because FOIA requires disclosure of non-exempt material to “any person,” Horner, 897 F.3d at
875 (quoting 5 U.S.C. § 552(a)(3)), the likelihood of a privacy invasion must be evaluated
without regard to the identity of the requester and as if disclosure is to be made to the public.
See id. Furthermore, the data matching procedures described by SSA require only “basic to
intermediate ACCESS skills.” Gregory Decl. ¶ 19. In light of SSA’s detailed demonstrations,
the likelihood of an invasion of privacy should such data be disclosed is “more palpable than
mere possibility.” Compare Rose, 425 U.S. at 378, 380 n.19.
We live in an age where threats to privacy are a very real danger, enabled by extensive
publicly available data on individuals. See, e.g., Social Security and Death Information: Hearing
Before the H. Comm. on Ways and Means and Subcomm. on Social Security, 112th Cong., Feb.
2, 2012 (statement of Michael J. Astrue, Comm’r, Social Security Admin.), Reply Exh. 5 (ECF
42-5) (“Identity theft is a spreading plague on our Nation. . . . Unfortunately, public access to
the DMF has created opportunities for criminals. The media has reported incidents involving the
use of death data to commit tax fraud.”); see also Greidinger v. Davis, 988 F.2d 1344, 1352-54
(4th Cir. 1993) (discussing threats to privacy associated with disclosure of SSNs and private
information more generally). Data “linking,” as demonstrated by SSA, presents a concrete risk
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of a serious invasion of privacy. The addition of unique or functionally unique identifiers to the
FOIA release could expose the identity associated with a record, along with highly private
information, through the manipulation of both the FOIA releases and publicly available data.
I recognize that in Dayton Newspapers, Inc. v. Department of Veteran Affairs, 257 F.
Supp. 2d 988, 1001-02 (S.D. Ohio 2003), the court said that “the sophistication of online search
engines should not be cited by the Government as a justification to withhold information, where
no bona fide privacy concern would exist under Exemption 6 were it not for such sophistication.”
Much has changed since that decision was issued in 2003. In my view, the practical reality of
modern and ever changing technology requires the consideration of the sophisticated ways in
which publicly available data may be used in conjunction with a FOIA release to invade personal
privacy. Cf. Senior Execs. Assoc. v. United States, No. 8:12-cv-02297-AW, 2012 WL 4039814,
at *7 (D. Md. Sept. 13, 2012) (“The right to informational privacy assumes added importance in
the realm of cyberspace due to the gathering and almost instantaneous transmission of vast
amounts of information. For better or worse, the Information Age has drastically increased the
availability and transferability of compromising information; it behooves courts to consider this
phenomenon in response to requests to shield sensitive data.”). Consequently, I find that there is
a tangible privacy interest in withholding the remaining information in response to FOIA
Requests I, II and V.
b. Public Interest in Disclosure
Having gauged the privacy interest at stake, the next step of the inquiry is to evaluate the
extent of the public interest in disclosure. See Reporters Comm., 489 U.S. at 771. Just as the
privacy interests implicated by disclosure must be evaluated for each field of data, so too must
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the public interest. See 5 U.S.C. § 552(b) (requiring disclosure of reasonably segregable data);
Favish, 541 U.S. at 172 (“First, the citizen must show that the public interest sought to be
advanced is a significant one, an interest more specific than having the information for its own
sake.

Second, the citizen must show the information is likely to advance that interest.

Otherwise, the invasion of privacy is unwarranted.”).
Generally speaking, Havemann’s purpose of acquiring information serves the goals of
FOIA, to “shed[] light on an agency’s performance of its statutory duties,” FLRA, 510 U.S. at
496 (quoting Reporters Comm., 489 U.S. at 773), because he intends to use the data to
investigate the effectiveness of SSA’s administration of its various statutory obligations. See
Cooley Decl. ¶¶ 20a-c. But, the general purpose of Havemann’s work is not dispositive. The
public interest to be evaluated is not the interest in Havemann’s project as broadly defined, but
rather the public interest, on the margin, in disclosure of the remaining records. See Favish, 541
U.S. at 172.
SSA’s disclosures have provided Havemann with records for more than 140 million
individuals. The records include extensive data concerning income levels and sources, decisions
on benefits eligibility, the reasons underlying those decisions, health status and insurance
information, benefits paid to auxiliaries, and even social security numbers. As is evident from
the FOIA release tables, supra, Havemann has more than adequate data to ascertain whether SSA
is overpaying or underpaying benefits, whether certain categories of beneficiaries have been “left
behind,” and whether SSA appears to be cooperating with the VA. Moreover, as discussed
below, he does not adequately explain why the data currently provided does not fully satisfy the
goals envisioned by FOIA.
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Havemann asserts that he and his consultant, Cooley, would like to work with data that
“pertains to individuals,” in order to show that SSA could identify underpaid individuals.
Opposition at 11.

This ignores the fact that the records he already possesses “pertain to

individuals,” because each record represents a single person. In his Surreply, plaintiff suggests
that “huge public benefits” will accrue to underpaid social security recipients and taxpayers as a
result of his work, in the form of “large sums of money.” Surreply at 4-5. I am not persuaded.
Not every “public benefit,” however noble or altruistic, is within the “public interest” to be
considered in evaluating a FOIA exemption, i.e., whether the information would shed light on
SSA’s performance of its statutory duties. See FLRA, 510 U.S. at 497-98. FLRA is instructive.
In that case, labor unions sought disclosure of federal employees’ addresses to facilitate
communications. See id. at 500. As the Court explained “[t]rue, unions have a special interest in
identifying and communicating with persons in the bargaining unit, an interest initially
accommodated by [the Labor Statute]. The bargaining process facilitation interest is ultimately
unavailing, however, because ‘it falls outside the ambit of the public interest that the FOIA was
enacted to serve’ . . . .” Id. Ultimately, the question is whether the information reflects the
agency’s conduct, not whether it could lead to a public benefit.
Whereas underpayment and overpayment visibly reflect on SSAs statutory obligations,
the identification of a specific zip code to “say something definitive about the income of [a]
communit[y],” Surreply at 6; Supp. Cooley Decl. ¶ 44, ultimately “reveals little or nothing about
[the] agency’s own conduct.” FLRA, 510 U.S. at 496 (emphasis added) (quoting Reporters
Comm., 489 U.S. at 773); see Wiggins Decl. ¶ 69. This is equally so for county codes. Supp.
Cooley Dec. ¶ 45 (“People want to know how the losses of government funds suffered by

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individuals are affecting their regions.”). Although it is certainly enlightening for the casual
reader or policy analyst to see how different communities are affected by social security benefits,
SSA does not, so far as this Court is aware, treat beneficiaries differently based on their zip code
or county of residence, and Havemann has not indicated otherwise.

Thus, Havemann has

principally articulated an interest in possessing information on private citizens or communities
that “falls outside the ambit of the public interest that FOIA was intended to serve.” FLRA, 510
U.S. at 500; see also Reporters Comm., 489 U.S. at 766 n.18 (observing that “the identity of the
individuals given public relief or involved in tax matters is irrelevant to the Public’s
understanding of the Government’s operation,” even though “public relief and income tax
assessments . . . are proper subjects of public concern”) (citing S. Rep. No. 89-813, at 7 (1965) &
H.R. Rep. No. 89-1497, at 8 (1966)).
With regard to birth dates, Havemann has adequate data to vindicate the public interest in
evaluating SSA’s performance. As SSA explains, Havemann does not necessarily need a month
or day of birth to determine benefit eligibility. Individuals become eligible for the benefits
Havemann is investigating at either age 50 or age 60. Thus, for any given reference date,
eligibility will only be impossible to determine for two birth years. For instance, in the year
2012, Havemann will only be prevented from precisely determining eligibility status for
individuals born in 1952 and 1962. But even for individuals born in those two years, SSA
explains how Havemann can obtain almost 100% accuracy on eligibility determinations: “On
December 31, 2012, there will be a 99.7% (100 x 36[4]/36[5]) probability that anyone born in
1952 has turned 60 and that anyone born in 1962 has turned 50.” Reply at 22; see Supp. Gregory
Decl. ¶ 82. Even if Havemann would like to ascertain eligibility for a different reference date, a
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full birth date would not enlighten him as to his stated purpose: whether a beneficiary is overpaid
or underpaid.

Moreover, SSI is a needs-based program, for which a beneficiary becomes

“eligible” based on the date the application is filed. See Gregory Decl. ¶ 70. Therefore, birth
date would not indicate whether benefits were timely paid. In my view, Havemann has not
adequately articulated why this additional information will advance the asserted public interest.
Favish, 541 U.S. at 172.
Nor does Havemann require SSNs in response to his FOIA V request to determine
income levels for the potential VA death pension beneficiaries whose records were disclosed in
response to FOIA Request IV. See Cooley Decl. ¶¶ 57-58. As SSA explains, to determine this
eligibility, all that is needed is
a one-column list containing the Social Security benefit received by every
surviving spouse of a service member listed in the FOIA IV release. The number
of entries in the one-column list would tell [Plaintiff] how many surviving
spouses may be implicated and the benefit amount will provide the indication of
whether the income threshold level for a VA death pension has been exceeded.
Reply at 21; Supp. Gregory Decl. ¶ 76.
In sum, notwithstanding Havemann’s personal stake in providing as much detail as
possible in his article, or Cooley’s preference for working at the most granular level of data
possible, that is simply not the goal that Congress envisioned in passing FOIA. Consequently,
the Court finds that the public interest in disclosure is low.
c. Balancing Test
Weighing the substantial privacy interests burdened by disclosure of information that
could associate data on benefits, insurance, and financial status with specific individuals against
the marginal effect of disclosure in furthering FOIA’s goals, I am persuaded that SSA is not
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obligated to fulfill the remainder of Havemann’s requests. A negligible public interest will be
outweighed by even a very slight privacy interest, Horner, 879 F.2d at 873, and FOIA requests
implicating intimate personal data require a particularly weighty public interest, because “where
the subject of documents ‘is a private citizen,’ ‘the privacy interest . . . is at its apex.’” Favish,
541 U.S. at 166 (quoting Reporters Comm., 489 U.S. at 780) (omission in original).
In this case, the disclosure of the additional data fields would jeopardize the privacy
interests that FOIA seeks to protect through Exemption 6. On the other hand, Havemann has
data sufficient to evaluate the performance of SSA with respect to its statutory mandates, and
there is scant evidence that further disclosure of the disputed data will advance that interest. As
SSA suggests, “[e]ven assuming that Plaintiff has the general goal of showing that a category
[of] Social Security beneficiaries exists who could be getting paid more benefits, that does not
provide justification for unnecessarily exposing the private information of those very same
beneficiaries to identification.”

Reply at 2.

Thus, disclosure would constitute “a clearly

unwarranted invasion of personal privacy” under 5 U.S.C. § 552(b)(6), and SSA is justified in
withholding the remaining data.
Conclusion
For the foregoing reasons, the Court will grant summary judgment in favor of SSA.
Therefore, plaintiff’s motion for attorney’s fees and costs is denied. A separate Order follows.

Date: September 24, 2012

/s/
Ellen Lipton Hollander
United States District Judge

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