Milbrand v. U.S. Department of Labor et al

Filing 33

OPINION AND ORDER denying 8 plaintiff's Motion for Summary Judgment; denying 19 plaintiff's Motion to Amend; granting 22 defendant's Motion for Summary Judgment; finding as moot 29 30 Motions to Compel. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JON K. MILBRAND,
Plaintiff,
Case No. 17-CV-13237
v.
HON. GEORGE CARAM STEEH
UNITED STATES DEPARTMENT
OF LABOR,
Defendant.
____________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DOC. 22), DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DOC. 8),
AND DENYING PLAINTIFF’S MOTION TO AMEND (DOC. 19)
Plaintiff, Jon K. Milbrand, alleges that the United States Department
of Labor violated the Freedom of Information Act (“FOIA”) by withholding
certain records in response to his request. The parties have filed crossmotions for summary judgment. Plaintiff has also filed a motion to amend
his complaint. Upon review, the court finds that disposition of this matter
would not be aided by oral argument. For the reasons explained below,
Defendant’s motion for summary judgment is granted and Plaintiff’s
motions are denied.

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BACKGROUND FACTS
On February 9, 2015, Plaintiff submitted a FOIA request to Defendant
seeking information regarding Compliance Safety and Health Officers
(“CSHOs”) employed by the Occupational Safety and Health Administration
(“OSHA”). Plaintiff also seeks information regarding state CSHOs.
Specifically, Plaintiff requested the “number of state plan CSHOs” for 2015
and the previous nine years, the business email addresses of state
CSHOs, and the business email addresses of federal CSHOs. Compl. at ¶
24. CSHOs are responsible for inspecting worksites, investigating
workplace health and safety complaints, and issuing citations to employers
who fail to meet OSHA standards. CSHOs may be either direct federal
employees of OSHA or employees of an OSHA-approved plan
administered by a state.
Plaintiff’s FOIA request was assigned number 769356. Defendant
conducted a search and found one responsive record, a list of the number
of state plan CSHOs from 1977 to 2015. As Defendant provided this
record to Plaintiff, this portion of Plaintiff’s request is not at issue here.
Defendant declined to provide business email addresses for either state or
federal CSHOs, relying on Exemption 6 of the FOIA.

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Plaintiff appealed Defendant’s decision not to release the email
addresses. The appeals unit remanded Plaintiff’s request to OSHA
because it did not initially “identify the material it reviewed . . . or provide
any estimation of the volume of material withheld.” Def.’s Ex. B, attachment
B.
On May 23, 2016, OSHA issued a supplemental response to
Plaintiff’s request, indicating that a “reasonable search for records by
OSHA did not reveal any documents responsive to your request” for the
business email addresses of the state CSHOs. OSHA further stated that
the business email addresses of the 817 federal CSHOs were located in
the department’s email software program. OSHA withheld those records in
their entirety under FOIA Exemptions 2 and 6.
Plaintiff appealed OSHA’s decision to withhold the business email
addresses of the federal CSHOs to the Office of the Solicitor, Department
of Labor. After review, it was determined that “OSHA properly withheld all
of the email addresses of the CSHO’s pursuant to exemption 6.” Def.’s Ex.
B, attachment D. The appellate decision is a final agency action for
purposes of judicial review. Id. Plaintiff filed this action pursuant to 5
U.S.C. § 552(a)(4)(B), which provides for judicial review of the denial of his
FOIA request.
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LAW AND ANALYSIS
Pursuant to 5 U.S.C. § 552(a)(4)(B), the court has the authority to
“enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the
complainant.” Id. The court reviews an agency’s denial of a FOIA request
de novo. Id. An agency may only withhold records if one of the exemptions
set forth in the statute applies. Rimmer v. Holder, 700 F.3d 246, 255 (6th
Cir. 2012). FOIA exemptions are to be “construed narrowly,” and the
agency bears the burden of establishing that any claimed exemption
applies. Long v. Office of Personnel Management, 692 F.3d 185, 190 (2d
Cir. 2012).
“As most challenges to an agency’s use of a FOIA exemption involve
purely legal questions, district courts typically resolve these cases on
summary judgment.” Rimmer, 700 F.3d at 255. To prevail on a motion for
summary judgment in a FOIA case, the agency must show it made a “good
faith effort to conduct a search for the requested records using methods
reasonably expected to produce the requested information and that any
withholding of materials was authorized within a statutory exemption.” Id.
(citation omitted). See also Fed. R. Civ. P. 56.

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With respect to the adequacy of the search, Defendant has submitted
an affidavit from Thomas Galassi, Director of the Directorate of
Enforcement Programs within OSHA, who is the FOIA coordinator. Galassi
stated that the Directorate of Cooperative and State Programs (“DCSP”)
and the Directorate of Enforcement Programs (“DEP”) within OSHA
conducted the search for the records requested by Plaintiff. After a
supplemental response was ordered, a second search was conducted by
DCSP, DEP, and the Directorate of Administrative Programs. Although
records of email addresses for federal CSHOs were found, Galassi asserts
that “OSHA does not maintain a list of email addresses for State Plan
CSHOs.” Plaintiff argues that the search was inadequate because he
believes that OSHA should have the email addresses for state plan
CSHOs. Plaintiff’s speculation that records should exist is not sufficient to
rebut Defendant’s showing that it conducted a reasonable search. See
CaretoLive v. Food & Drug Admin., 631 F.3d 336, 341 (6th Cir. 2011).
Defendant’s search yielded 817 email addresses for the federal
CSHOs, which were withheld pursuant to Exemption 6. This exemption
allows an agency to withhold the disclosure 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). To
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determine whether a federal agency may withhold information pursuant to
Exemption 6, the court must first determine whether the information is kept
in personnel, medical, or “similar” files. See Long v. OPM, 692 F.3d at 190.
“If so, we balance the public’s need for the information against the
individual’s privacy interest to determine whether the disclosure . . . would
constitute a ‘clearly unwarranted invasion of personal privacy.’” Id.(citation
omitted).
Exemption 6 is “designed to protect personal information in public
records, even if it is not embarrassing or of an intimate nature.” National
Assn. of Retired Federal Employees v. Horner, 879 F.2d 873, 875 (D.C.
Cir. 1989) (citing Department of State v. Washington Post Co., 456 U.S.
595, 600 (1982)). Protection under Exemption 6 is not limited to “a narrow
class of files,” but “cover[s] detailed Government records on an individual
which can be identified as applying to that individual.” Washington Post,
456 U.S. at 602. “The names and contact information of federal employees
are the type of information that is eligible for withholding under Exemption
6.”1 Long v. Immigration & Customs Enforcement, 279 F. Supp.3d 226, 243
(D.D.C. 2017). See also Henderson v. U.S. Dept. of Justice, 157 F.

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Although Plaintiff has not specifically requested the names of the
CSHOs, the court notes that government email addresses typically consist
of employees’ first and last names.
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Supp.3d 42, 50 (D.D.C. 2016) (names and contact information of
government employees qualify as “similar files” under Exemption 6);
Waterman v. IRS, 288 F. Supp.3d 206, 211 (D.D.C. 2018) (phone numbers
and email addresses of IRS employees withheld under Exemption 6). The
court finds that the business email addresses of the federal CSHOs are
included in personnel or “similar” files under Exemption 6.2
Next, the court balances “the public’s need for the information
against the individual’s privacy interest to determine whether the disclosure
. . . would constitute a ‘clearly unwarranted invasion of personal privacy.’”
Long v. OPM, 692 F.3d at 190. Courts have held that federal employees
have a privacy interest in their names and contact information. See Long v.
ICE, 279 F. Supp.3d at 243-44; U.S. Dept. of Navy v. Federal Labor
Relations Authority, 975 F.2d 348, 352 (7th Cir. 1992) (“As other circuits
have reasoned, the privacy interest implicated here is in the release of an
individual’s name in association with his employment position in the federal
government.”). This is particularly true when federal employees work in
sensitive positions such as in law enforcement or in an investigatory
Plaintiff relies upon Leadership Conference on Civil Rights v. Gonzales, 404 F.
Supp.2d 246 (D.D.C. 2005), which held that Justice Department paralegals’ names and
work telephone numbers were not protected under Exemption 6 and that they had no
privacy interest in this information, which was “already publicly available.” Id. at 257.
Gonzales is distinguishable from this case in that the emails sought here are not
publicly available. Moreover, the court’s analysis in Gonzales is against the great
weight of authority, as discussed throughout this opinion and order.
2

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capacity. Long v. OPM, 692 F. 3d at 192 & n.4 (finding federal employees
in “sensitive” agencies and occupations – including general inspection and
compliance inspection – “have a cognizable privacy interest in keeping their
names from being disclosed wholesale”); Waterman, 288 F. Supp.3d at
211 (IRS employees had privacy interest in disclosure of phone numbers
and email addresses, which could subject them to “embarrassment and
harassment in the conduct of their official duties”); Walston v. U.S.
Department of Defense, 238 F. Supp.3d 57, 67 (D.D.C. 2017) (DOD
investigative employees had privacy interest in their names and business
contact information).
Here, the federal CSHOs are responsible for inspecting work sites,
investigating complaints about workplace health and safety, and issuing
citations to employers who fail to meet OSHA standards. In light of their
work in an investigative capacity, the release of their business email
addresses exposes them to the risk of harassment and implicates a
substantial privacy interest. See Long v. OPM, 692 F3d at 192; O'Keefe v.
U.S. Dept. of Defense, 463 F. Supp. 2d 317, 326 (E.D.N.Y. 2006) (finding
that “investigative personnel have significant privacy interests as they may
be subject to harassment or embarrassment if their identities are
disclosed”).
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The court next weighs the federal CSHOs’ privacy interest against the
public interest in disclosure. “The only public interest cognizable under
FOIA is the public ‘understanding of the operations or activities of the
government.’” Long v. OPM, 692 F.3d at 193 (quoting U.S. Dept. of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 775 (1989)).
Plaintiff seeks the business emails of the 817 federal CSHOs so that he
may send them a survey about an OSHA safety standard, which he intends
to use in his attempt to challenge the standard. A list of business email
addresses does not, however, reveal to the public “what their government
is up to,” which is the only relevant public interest under FOIA. Id. (“In
many contexts, federal courts have observed that disclosure of individual
employee names tells nothing about ‘what the government is up to.’”);
Horner, 879 F.2d at 878-79 (no public interest in disclosure of names and
addresses to assist organization in lobbying activities); U.S. Dept. of Navy,
975 F.2d at 355 (no public interest in release of names and addresses of
federal employees). Indeed, there is no public interest under FOIA “in
identifying a federal employee by name in order to make contact or conduct
interviews,” as Plaintiff intends to do here. Long v. OPM, 692 F.3d at 194.
“Such a use . . . actually facilitates the invasion of the employee’s personal
privacy.” Id.
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Under the circumstances, the CSHOs’ privacy interest clearly
outweighs the public interest in disclosure, because Plaintiff has not
articulated a cognizable public interest under FOIA. See id.; Horner, 879
F.2d at 879 (“[S]omething, even a modest privacy interest, outweighs
nothing every time.”). Accordingly, the court finds that Defendant properly
withheld the business email addresses of the federal CSHOs under
Exemption 6 of the FOIA.
Plaintiff also seeks to amend his complaint and conduct discovery.
Plaintiff’s proposed amendments request (1) “an order enjoining the agency
from relying on an invalid regulation or practice in all future FOIA
undertakings”; (2) “an order declaring the agency’s actions to be violation of
FOIA”; (3) an award of attorney’s fees and costs; and (4) that the court
make a finding that the agency’s actions were “arbitrary and capricious”
and refer the matter to the Merit System Protection Board for investigation.
Doc. 19 at 1. Plaintiff’s proposed amendments rest on the premise that
Defendant has violated the FOIA. As discussed above, the court finds that
Defendant has sustained its burden of demonstrating that it properly
withheld the requested information pursuant to Exemption 6. Accordingly,
Plaintiff’s proposed amendments are futile. See Miller v. Calhoun Cty., 408
F.3d 803, 817 (6th Cir. 2005) (“Amendment of a complaint is futile when the
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proposed amendment would not permit the complaint to survive a motion to
dismiss.”).
As for Plaintiff’s discovery request, “[i]n FOIA cases, discovery is both
rare and disfavored.” Freedom Watch v. Bureau of Land Mgmt., 220 F.
Supp. 3d 65, 68 (D.D.C. 2016). A court may grant discovery in a FOIA
case where the plaintiff has made a “sufficient showing that the agency
acted in bad faith.” Id. (citations omitted). Plaintiff has not made such a
showing here, when the agency properly withheld the requested
information pursuant to Exemption 6.
CONCLUSION
IT IS HEREBY ORDERED that Defendant’s motion for summary
judgment is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment and motion to amend complaint are DENIED.
Dated: August 9, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 9, 2018, by electronic and/or ordinary mail and also on
Jon K. Milbrand, 5722 Brookside Lane, Washington, MI 48094.
s/Barbara Radke
Deputy Clerk

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