Kowack v. United States Forest Service et al

Filing 38

OPINION and ORDER. IT IS ORDERED that the Forest Service provide a less redacted version of the relevant documents to Kowack on or before July 8, 2015. IT IS FURTHER ORDERED that each party must file a brief on the question of attorney's fees on or before June 29, 2015. Briefs are not to exceed ten (10) pages. Signed by Judge Donald W. Molloy on 6/16/2015. (NOS, ) (Appendices attached as sealed documents on 6/16/2015 with access given only to Defendants; NEF regenerated: # 1 Witness Statement Appendix, # 2 Administrative Documents Appendix) (NOS, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MARK KOWACK,

FILED
JUN 16 2015
Clerk, U.S District Court
District Of Montana
Missoula

CV 11-95-M-DWM
Plaintiff,
OPINION and ORDER

vs.
UNITED STATES FOREST SERVICE;
THOMAS TIDWELL, Chief of the
United States Forest Service,
Defendants.

The Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, mandates that
federal agencies make their records available to the public upon request, subject to
nine discretionary exemptions. Yonemoto v. Dep 't of Veterans Affairs, 686 F.3d
681, 685 (9th Cir. 2011). This case involves the application ofFOIA Exemption
6, which provides that an agency may withhold "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). Plaintiff Mark Kowack
("Kowack") asked for information from the Forest Service concerning his
allegations that his workplace was hostile and that he was "experiencing threats,
aggression, and workplace hostility from certain of his co-workers." Kowack v.

US. Forest Serv., 766 F.3d 1130, 1131 (9th Cir. 2014). I have reviewed in camera

1

all of the materials submitted by the Forest Service, unredacted, and find that
much of what the Fore st Service believes should be redacted is not in compliance
with the Circuit's decision on appeal in this case. For the reasons set forth below,
I am ordering disclosure of more detailed information. That said, the FOIA
request here may be an instance where one should be careful in what he asks for.
As the Dalai Lama observed, "Remember that not getting what you want is
sometimes a wonderful stroke of luck."
FACTUAL AND PROCEDURAL HISTORY

Kowack is an employee of the Trapper Creek Job Corps Center (the
"Center") in Darby, Montana. Kowack claims that in 2008, he began experiencing
harassment, threats, and aggressive behavior by some of his co-workers. He says
he also feared for the safety of his students. Kowack expressed his concerns to the
Forest Service and claims that little action was taken. He notified both Senator
Baucus and Forest Service Chief Tidwell, and the Forest Service conducted an
investigation. After the investigation was complete, the Forest Service wrote him:
"The Misconduct Investigation has been completed and a Report of Investigation
has been issued and reviewed by our Employee Relations Specialist. The
Investigation did not substantiate the allegations therefore the investigation has
been closed."
Kowack was unhappy with the results of the investigation, believing it to be

2

a "cover up of the Center Director's and management's incompetence and failure
to follow Forest Service policies and procedures." As a result, he submitted a
FOIA request for "any and all statements, interviews, photos, notes and any other
documents that pertain to the 'misconduct investigation."' The Forest Service was
ordered to produce a Vaughn index describing the substance of the documents.
(Doc. 11.) Upon review of that index, summary judgment was granted in favor of
the Forest Service on the grounds that the agency properly withheld portions of the
documents under FOIA Exemptions 5 and 6. (Doc. 21.) Kowack appealed that
decision. See Kowack, 766 F.3d 1130.
The Ninth Circuit remanded the case, holding that the Forest Service's

Vaughn index did not provide an adequate factual basis for concluding that the
disclosure of witness statements or administrative documents fell within the scope
of either FOIA's personal privacy exemption, 5 U.S.C. § 552(b)(6), or FOIA's
inter-agency communication exemption, 5 U.S.C. § 552(b)(5). Kowack, 766 F.3d
at 1133-35. Pursuant to that remand order, on January 5, 2015, this Court ordered
the Forest Service to file a supplemental Vaughn index. (Doc. 27.) On February
4, 2015, the Forest Service complied, filing an affidavit from Sara Sullivan, who is
employed in the Forest Service's FOIA office, containing a Vaughn index
addressing the two classes of documents identified by the Ninth Circuit in its order
of remand: witness statements (approximately 21 pages) and administrative

3

documents (approximately 17 pages). (Doc. 28-1.) This disclosure provided an
insufficient factual basis to determine whether Exemption 6 was properly applied.1
(Doc. 33.) As a result, in camera review of the documents was ordered. (Id.); see
5 U.S.C. § 552(a)(4)(B).
SUMMARY CONCLUSION

Although the Forest Service's supplemental Vaughn index correctly
identified much of the redacted information as highlighting interoffice or
interpersonal issues, in camera review reveals that the privacy interests at stake
can be protected and the public interest better served by fewer redactions than
were used by the agency. Moreover, information in which there is no privacy
interest comprises a significant portion of the currently redacted information and
must be disclosed without consideration of the public interest.
ANALYSIS

I.

Exemption 6

Exemption 6 allows an agency to withhold "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). The purpose ofExemption 6
is "to protect individuals from the injury and embarrassment that can result from
the unnecessary disclosure of personal information." US. Dep 't ofState v. Wash.
The Forest Service has indicated it no longer relies on FOIA Exemptions 5 and
7(C) to withhold information in this case. (Doc. 28-1 at if 21.)

4

Post Co., 456 U.S. 595, 599 (1982). Determining whether an agency has properly

withheld records or information pursuant to Exemption 6 is a two-step process.
Prudential Locations LLC v. US. Dep't ofHousing & Urban Dev., 739 F.3d 424,

429 (9th Cir. 2013). The first inquiry is whether the documents qualify under the
heading of "personnel and medical files and similar files." Id. The second inquiry
is "whether production of the document, or information contained therein, would
constitute a clearly unwarranted invasion of personal privacy." Id. (internal
quotation marks omitted). In answering the second question, courts "must balance
the privacy interest protected by the exemption[] against the public interest in
government openness that would be served by disclosure." Id. at 430 (internal
quotation marks omitted).
Here, the Ninth Circuit has already determined that the 38 pages in question
fall within the category of "personnel and medical files and similar files."
Kowack, 766 F.3d at 1133. However, it concluded the Forest Service provided

insufficient information in its initial Vaughn index to assess either the privacy
interest or the public interest at issue. Id. at 1134. In doing so, the Ninth Circuit
provided a framework for addressing the privacy interests on remand. It held that
the primary individuals involved-the department employees and the center
director-"have no privacy interests in preventing the public from knowing about
their involvement with the investigation." Id. at 1133-34. It further found that

5

witnesses do not have a privacy interest in those statements that "could be
disclosed without revealing who made them," but "witnesses may have a privacy
interest in ensuring that their names aren't associated with specific incidents
reported to the investigator." Id. at 1134 (emphasis in original). Having examined
the record in camera, although it is not possible to disclose the entire substance of
the witness statements without revealing who made them or implicating other
cognizable privacy interests, the Forest Service improperly withheld more of the
witness statements and administrative documents than proper under Exemption 6.

A.

Cognizable Privacy Interest

Because Exemption 6 requires the invasion of privacy to be "clearly
unwarranted," this exemption "tilt[ s] the balance (of disclosure interests against
privacy interests) in favor of disclosure," and creates a "heavy burden" for
invoking Exemption 6. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1128
(D.C. Cir. 2007). The agency bears the burden of establishing that the balance
tips in favor of privacy. 5 U.S.C. § 552(a)(4)(B). "To withhold information under
Exemption 6, an agency must show that 'some nontrivial privacy interest is at
stake."' Prudential Locations LLC, 739 F.3d at 430 (quoting US. Dep't ofDef v.

Fed. Labor Relations Auth., 510 U.S. 487, 501 (1994)) (emphasis in original). "If
only a trivial privacy interest is implicated, then Exemption 6 cannot apply." Id.
The Forest Service argues that the privacy interests of the witnesses and the

6

subjects of their statements are implicated in this case because the witness
statements include very candid and somewhat inflammatory comments about coworkers and managers. Due to the perceived offensive nature of these comments,
the Forest Service alleges these employees could face retaliation from their
colleagues if the redacted information is released and the witnesses' colleagues
would be embarrassed by their portrayals in these statements. (Supp. Vaughn
Index, Doc. 28-1 at 11-12.)
As recognized by the Ninth Circuit, individuals have a privacy interest in
being "free from retaliation, harassment, embarrassment, or stigma" and in
"keeping personal facts away from the public eye." Prudential Locations LLC,
739 F .3d at 431 (internal quotation marks omitted). This includes references to
employment history and job performance evaluations. Dep 't of the Air Force v.

Rose, 425 U.S. 352, 376-77 (1976). Nevertheless, this privacy interest is limited
to those instances where the embarrassing, shameful, or inciting information is
linked to a particular, identifiable individual. Forest Serv. Emps. for Envtl. Ethics

v. US. Forest Serv., 524 F.3d 1021, 1026 (9th Cir. 2008) [hereinafter Forest Serv.
Emps.]; see US. Dep't of State v. Ray, 502 U.S. 164, 175-76 (1991) (holding that
disclosure of "highly personal information"-there, "marital and employment
status, children, living conditions and attempts to enter the United
States"-" constitute[ d] only a de minimis invasion of privacy" if not "linked

7

publicly with particular, named individuals"); Yonemoto, 686 F.3d at 697
(remanding for a determination of whether disclosure would reveal the
individual's identity). What constitutes identifying information is weighed both
from the public viewpoint and from the vantage point of those familiar with the
mentioned individuals. Rose, 425 U.S. at 380. Such information can be in
reference to either the "author" or the "subject" of a document, as both can possess
cognizable privacy interests. N. Y. Times Co. v. Nat 'l Aeronautics & Space

Admin., 920 F.2d 1002, 1007-08 (D.C. Cir. 1990) (en bane). The Forest Service's
supplemental Vaughn index and this Court's in camera review reveal that the
responsive documents contain some information that would be embarrassing or
shameful and/or could potentially lead to retaliation if linked to a particular,
identifiable individual. Such privacy interests are cognizable under Exemption 6.
That said, much of the redacted information does not implicate a privacy
interest, but merely casts a negative light on the operation of the Center or
includes comments and opinions that are not identifying in nature. As there is no
privacy interest in such information, it must be disclosed without any
consideration of whether there is a countervailing public interest. Yonemoto, 686
F .3d at 694 ("If, at step one, the agency fails to establish that disclosing the
contested information would lead to the invasion of a non-trivial personal privacy
interest protected by Exemption 6, the FOIA demands disclosure, without regard

8

to any showing of public interest.").
Additionally, there is no cognizable privacy interest in information that
references or describes Kowack alone. Exemption 6 cannot be invoked to
withhold from a requester information pertaining only to him or herself. See U.S.

Dep't ofJustice v. Reporters Comm. For Freedom ofPress, 489 U.S. 749, 771
(1989) [hereinafter Reporters Comm.] (citing Dep 't ofJustice v. Julian, 486 U.S.
1, 13-14 (1988)); Dean v. Fed. Deposit Ins. Corp., 389 F. Supp. 2d 780, 794 (E.D.
Ky. 2005) ("When the person identified in the document is the person requesting
the document, the Court is unable to determine how any potential or realized
'invasion of personal privacy' could possibly be considered 'unwarranted' in this
circumstance."). Therefore, there is no cognizable privacy interest in those
portions of the documents that reference only Kowack and do not identify others.
This information must also be disclosed without any showing of public interest.

B.

Public Interest

In considering the information in which a cognizable privacy interest exists,
"the only relevant public interest under Exemption 6 is the extent to which the
information sought would shed light on an agency's performance of its statutory
duties or otherwise let citizens know what their government is up to." Forest

Serv. Emps., 524 F.3d at 1027 (internal quotation marks and alteration omitted).
Information "that reveals little or nothing about an agency's own conduct,"

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however, is not subject to the same interest. Reporters Comm., 489 U.S. at 773.
The question is whether the disclosure would "contribut[e] significantly to public
understanding of the operations or activities of the government." U.S. Dep't of

Def, 510 U.S. at 495 (internal quotation marks and emphasis omitted).
Kowack insists that the disclosure of the identities of the department
employees and managers involved in the investigation and the substance of the
witness statements would serve the public interest by shedding light on several
varieties of potential agency misconduct in management and issues concerning a
negative work environment. In camera review shows that much of the content of
the witness statements and administrative documents provides insight into the
operations and management of the Center. This kind of information sheds light on
the Fore st Service's performance of its statutory duties and lets the citizens know
what their government is up to. U.S. Dep 't ofDef, 510 U.S. at 497. Disclosure of
such information appreciably furthers the public's interest in monitoring the
agency's operations and activities in an area where little information has been
publicized. Cf Forest Serv. Emps., 524 F.3d at 1027-28 (concluding that the
substantial information already available in the public domain meant the release of
the withheld information would not appreciably further the public interest).
However, Kowack has not shown that references to past disciplinary or
grievance actions or knowing the identity of the witnesses would contribute

10

significantly to the substantive information in the statements and administrative
documents concerning the manner in which the Forest Service has performed its
statutory duties. Prudential Locations, LLC, 739 F.3d at 433. To the contrary,
release of this information would not appreciably further the public's
understanding of the manner in which the Forest Service operates. Reporter

Comm., 489 U.S. at 773-74 (distinguishing information that speaks to conduct of
individuals from that which speaks to the conduct of the agency). Therefore, there
is no public interest in the release of that information and it may be redacted under
Exemption 6. Similarly, disclosing a witness's relatively petty comments that do
not speak to the workplace environment as a whole reveals nothing about the inner
workings of the agency and would likely cause significant embarrassment to both
the witnesses and the subjects. Yonemoto, 686 F.3d at 698. Such information may
be properly redacted pursuant to Exemption 6.
C.

Balancing the Interests

To determine whether releasing certain information "would constitute a
clearly unwarranted invasion of personal privacy," the privacy interest in
preventing the disclosure of information that would be embarrassing or shameful
when connected to particular, identifiable individuals must be balanced against the
public interest in understanding the manner in which the Forest Service performed
its statutory duties. The challenge in this case is providing a complete and

11

accurate record of whether the Forest Service, as an agency, acted appropriately
under the circumstances. See Stern v. Fed. Bureau ofInvestigation, 737 F.2d 84,
92 (D.C. Cir. 1984) (noting "the public may have an interest in knowing that a
government investigation itself is comprehensive, that the report of an
investigation released publicly is accurate, that any disciplinary measures imposed
are adequate, and that those who are accountable are dealt with in an appropriate
manner"). That challenge is even greater because the substantive content of the
witness statements and summaries has never been disclosed. Cf Hertzberg v.

Veneman, 273 F. Supp. 2d 67, 87 (D.D.C. 2003) (concluding no public interest in
the disclosure of the requested information-i.e. the names, addresses, and
telephone numbers of the witnesses-when the substantive content of the witness
statements had already been disclosed to the plaintiff).
Here, the disclosure of certain personal information is necessary to provide
an accurate picture of the agency's conduct. To the extent the information may be
disclosed without identifying the witness, revealing references to past disciplinary
or grievance actions, or exposing petty interoffice commentary, the public interest
in its disclosure outweighs the countervailing privacy interest because it does, as
the Ninth Circuit so suggests, speak directly to the public understanding of the
operations or activities of the agency. See Kowack, 766 F.3d at 1134 ("For all we
know, the witness statements reveal that the Trapper Creek Center is run by

12

dangerous bullies who shouldn't be allowed anywhere near disadvantaged
youth."). Under these circumstances, the invasion of the individuals' personal
privacy is not "clearly unwarranted." The public interest in disclosing most of the
substantive content of the witness statements and the summaries is only
strengthened by the divergent conclusions one could draw from reviewing the
redacted and unredacted documents. Accordingly, the reasonably segregable
portions of the record must be disclosed. 5 U.S.C. § 552(b); see Rose, 452 U.S. at
381 (noting that "redaction cannot eliminate all risks of identifiability, as any
human approximation risks some degree of imperfection").
II.

Application

The Court's in camera review is limited to the 38 responsive pages
discussed in the order of remand; this includes 21 pages of witness statements and
17 pages of administrative documents.2 Attached to this Order is an appendix for
the Forest Service, which highlights what information may be properly redacted
consistent with the reasoning discussed here. In reaching this conclusion, the
content of the witness statements and administrative documents was considered in
the context of three categories: (1) information in which there is no privacy
interest (must be disclosed); (2) information in which there is a privacy interest,
but no public interest (may be redacted); and (3) information in which the privacy
2

This does not include the Transmittal Email, which is discussed in Section
II(B)(2) below.

13

interest and the public interest must be balanced (sometimes subject to redaction,
sometimes not). Although the information in the third category may appear paltry
or of little public significance when considered independently, it nevertheless
plays an important role in providing a balanced and more complete picture of the
operation of the Center and the propriety of the agency's actions in this case.
A.

Witness Statements
1.

Witness Statement No. 1 (5 responsive pages)

The supplemental Vaughn index states that this is a witness statement from
a low-level Forest Service employee, and that the redacted portion includes names
of other employees, witnesses, and students and "contain[s] the witness' [s]
unfavorable, detailed opinions of management and colleagues." (Doc. 28-1 at 8.)
In camera review shows that the Forest Service redacted more information than

may be properly withheld pursuant to Exemption 6.
a.

Page 1

As a preliminary matter, the witness statements each contain a disclaimer at
the beginning that they were given with the knowledge that they are "not
confidential." Although this arguably dissipates the witnesses' privacy interest in
not being identified with their statements, cf Ray, 502 U.S. at 177 (finding the fact
the interviews were conducted pursuant to assurances of confidentiality significant
in consideration of privacy interest); Prudential Locations LLC, 739 F.3d at 432-

14

33 (same), the existence of a non-trivial privacy interest, however minimal,
outweighs a non-existent public interest, Kowack, 766 F.3d at 1136; U.S. Dep 't of

Def, 510 U.S. at 501. Therefore, the inclusion of this language at the beginning of
each witness statement does not foreclose the existence of a cognizable privacy
interest and a potentially justified redaction.
The following information on the first page was properly redacted because
there is an identifiable, non-trivial privacy interest and no public interest in its
disclosure: witness's name/initials3 (ilil 1, 2), witness's job description (il 2), and
students' names (il 4). On the other hand, the following information must be
disclosed with no consideration of the public interest because there is no privacy
interest in preventing its disclosure: reference to assignment to the Center (il 2)
and general comments about the students and the work environment4

(ilil 2, 3).

Yonemoto, 686 F.3d at 694.
There it both a cognizable privacy interest and a public interest in the
remaining information on the first page. In paragraph 4, the witness recounts
3

Due to their identifying nature, witnesses' initials were properly redacted from all
the witness statements.
4

The Forest Service's redaction method is particularly concerning where it relies
on Exemption 6 to redact solely negative information, even if there is no privacy interest in the
information. For example, the Forest Service left unredacted: "I do not believe that I work in an
environment that is violent, or threatening," but redacted: "but, it is a work place that is
uncomfortable at times and does exhibit some negative overtones." Similar redactions occur
throughout the witness statements and the administrative documents. The Forest Service may
not rely on Exemption 6 to protect from disclosure information that does not implicate a privacy
interest, even if the information casts a negative light on the agency.

15

knowledge and observations regarding student interactions with Kowack.
Portions of this commentary implicate the witness's privacy interest because there
is the potential that the context of the incidents may by identifying. This slight
interest in preventing indirect identification must be balanced against the
countervailing public interest in knowing how staff behaved around students and
the agency's knowledge of such behavior. This public interest can be served by
disclosing those portions of the paragraph that are least likely to allow for
identification of the witness yet adequately describe the interactions. The Forest
Service must limit its redactions accordingly.
b.

Page 2

The following information was properly redacted because there is an
identifiable, non-trivial privacy interest in preventing its disclosure and no
countervailing public interest: petty commentary about co-workers that would be
embarrassing if disclosed (ifif 1, 2) and a reference to disciplinary action (if 1).

Yonemoto, 686 F.3d at 698; Rose, 425 U.S. at 376-77. On the other hand, the
following information must be disclosed with no consideration of the public
interest because there is no privacy interest in preventing its disclosure:
commentary about Kowack that does not specifically identify or reference anyone
else (if 1) and general commentary about how the Center is managed (if 2).

Reporters Comm., 489 U.S. at 771; Yonemoto, 686 F.3d at 694.

16

The public and privacy interests must be balanced to determine the
disclosure of the remaining information on this page. Much of the first paragraph
discusses management and its approach to dealing with human resources issues.
To the extent there is a privacy interest in the information, i.e., that it is either
embarrassing or shameful, that privacy interest is outweighed by the public
interest in knowing how the agency has addressed, or potentially mishandled,
supervisory issues and concerns regarding a hostile and negative work
environment. Moreover, the management employees discussed by the witness,
Linda Guzik, the Center Director, and Prentis Wofford, the supervisor of the
Education Department, potentially have lesser personal privacy interests than
lower-level employees. Cf Forest Serv. Emps., 524 F.3d at 1025 (noting that
lower-level employees have a stronger privacy interest than "senior officials").
In her role as Center Director, Guzik oversees approximately 70 staff
members and 224 students. Guzik has supervisory authority and special
responsibilities, traits consistent with those of employees designated as higherlevel employees by courts in FOIA actions. See Dobronski v. Fed. Commc 'n
Comm 'n, 17 F .3d 275, 280 n.4 (9th Cir. 1994) (concluding an assistant bureau

chief for the Federal Communications Commission's Private Radio Bureau was a
high-level employee because he "holds a position of relative influence"); Chang v.
Dep 't ofNavy, 314 F. Supp. 2d 35, 44-45 (D.D.C. 2004) (holding that the

17

commander of a ship was a high-level employee). As a higher-level employee,
Guzik's privacy interests are dissipated to a greater degree than her lower-ranking
colleagues. In light of this fact, when balancing the public interest against Guzik' s
privacy interest in statements made about her in her capacity as a manager, the
scale is tipped more in favor of disclosure.
Wofford, on the other hand, is the supervisor for the Education Department
and oversees approximately 8 people. Although this likely places Wofford in a
higher-level role than a firefighter, Forest Serv. Emps., 524 F.3d at 1025-26, or a
line agent, Hunt v. Fed. Bureau ofInvestigation, 972 F .2d 286, 289-90 (9th Cir.
1992) (noting that line agents had "no supervisory authority" and "no special
responsibilities), he does not appear to have "final decision making authority" and
may be more accurately described as "simply [an] administrative lackey[],"

Covington & Burling v. Food & Nutrition Serv. of US. Dep't ofAgric., 744 F.
Supp. 314, 323 (D.D.C. 1990). Therefore, Wofford's privacy interests, unlike
Guzik' s, are not appreciably diminished. This does not mean, however, that the
public interest in knowing about the operations of the Center, especially its
managerial aspects, does not outweigh his privacy interest in many instances. As a
result, statements referring to Wofford and Guzik in their supervisory and
managerial capacities must largely be disclosed throughout the witness statements
and administrative documents.

18

Finally, the first paragraph relays an incident between Kowack and a coworker. Although Kowack does not have a privacy interest to be protected, the
co-worker retains his or her privacy interest in that disclosure of the information
would be potentially embarrassing. Additionally, including certain information
would have the indirect effect of identifying the witness. Nevertheless, there are
reasonably segregable portions of this paragraph that would not inadvertently
identify the witness; these portions of the statement were improperly redacted.
c.

Page 3

The information that was properly redacted from this page includes content
in which there is a cognizable privacy interest, but no public interest, such as petty
commentary about a fellow employee that is embarrassing but has no implications
for the work environment or the operation of the agency as a whole (~ 1), specific
incidents and opinions that would identify the witness(~~ 1, 2), the personal
family information of a fellow employee (~ 1), and references to a past grievance
and disciplinary action (~~ 1, 3).
The remaining information on this page must be disclosed. This includes
information in which there is no privacy interest, which is limited to commentary
about Kowack and the Center that does not identify any other individuals(~~ 2, 3).
This also includes references to management and the relationship between
management and the work environment (~ 1). The public interest in this

19

information outweighs the privacy interests of the management personnel
described in the statement despite the fact some of the information is potentially
embarrassing or casts a negative light on their actions.

d.

Page 4

The only information that was properly redacted is a reference to specific
disciplinary action cir 1), descriptions of events and interactions that would
identify the witness but do not shed light on the conduct of the agency cir 1), and
an identifying statement about employment Cir 3). A majority of the fourth page
implicates no privacy interest and must be disclosed with no consideration of the
public interest. Yonemoto, 686 F.3d at 694. The content that falls into the this
category describes Kowack without identifying the witness or anyone else

Cirir 1, 2,

3) or generally describes the work environment at the Center Ciril 2, 3).

e.

Page 5

The only information on the last page that has been properly redacted on
personal privacy grounds are a co-worker's name, the date, and the witness's
signature. The remaining information on this page either does not implicate a
privacy interest or to the extent the information is embarrassing to others, it speaks
directly to the public interest in understanding and monitoring the agency's
actions. It must be disclosed.

2.

Witness Statement No. 2

20

C3 responsive pages)

According to the supplemental Vaughn index, this statement is also
provided by a low-level employee and the redacted information includes names of
witnesses, employees, and managers, the "witness' [s] opinions criticizing the coworker and management," a discussion regarding arguments with co-workers, and
references to disciplinary procedures. (Doc. 28-1 at 8-9.) The information
provided in, and redacted from, Witness Statement No. 2 is very similar to that
discussed in the context of Witness Statement No. 1.

a.

Page 1

On the first page of the statement, the witness's name Cirir 1, 2),job
description cir 2), and reference to past disciplinary action were properly redacted

Cir 5).

On the other hand, the witness's general observations about Kowack and

the Center must be disclosed as there is no privacy interest at stake Cirir 4, 5). In
weighing the public interest in disclosure against the privacy interest at stake in
the remaining information, a few phrases that would identify the witness and in
which there is little to no public interest may be properly redacted Cir 4). In
paragraph 5, the witness's recall of an incident must be partially disclosed insofar
as that disclosure does not identify the witness.

b.

Page 2

The second page of this witness statement continues the description of a
specific incident and may be partially redacted to protect the identity of the

21

witness(~

1). Additionally, the description of another incident may be redacted

from paragraph 1 for the same reason. The following information may also be
redacted from this page: references to disciplinary/grievance

actions(~~

1, 4) and

statements that would identify the witness if revealed and in which there is little
public interest (~ 1). The remaining information must be disclosed because there
is either no privacy interest to be protected (~~ 1, 2, 5) or the public interest in
understanding the operation of the Center outweighs any potential privacy
interests held by those being described(~~ 3, 4). That information speaks directly
to the work environment of the Center, management's actions, and a training
provided at the Center to address workplace issues.
c.

Page 3

On the final page, the witness's signature and the date were properly
redacted, as well as a description of who attended the training. The remaining
information must be disclosed because it only references Kowack and does not
identify the witness.
3.

Witness Statement No. 3 (3 responsive pages)

The supplemental Vaughn index describes the third witness as a low-level
employee. It also describes the redaction of names, detailed passages describing
"verbal altercations and arguments among employees," "passages containing the
witness'[s] unfavorable opinions about a particular employee and that employee's

22

responses to arguments in the workplace," and "passages that describe this
particular witness'[s] attitude about the workplace." (Doc. 28-1 at 9.) As in the
situations above, in camera review reveals that much of the information does not
give rise to a privacy interest. To the extent it does, the witness's opinions
generally have bearing on the issues of workplace violence and a negative
workplace culture, outweighing all privacy interests except those that identify the
witness or specific disciplinary action.
a.

Page 1

On the first page, the witness's name(~~ 1, 2),job description(~ 2), dates of
employment (~ 4), description of organizational relationship with other employees
(~

4), reference to disciplinary action (~ 4), and recount of a specific incident that

would identify the witness(~ 4) were properly redacted pursuant to Exemption 6.
The remaining information on the first page generally describes the work
environment and, to the extent it provides specific information about a fellow
employee, that information speaks directly to the issue of a negative work
environment, so it must be disclosed(~ 4). Additionally, the incident described
and the identities of the individuals involved have already been disclosed in other
portions of the record, dissipating any privacy interest in non-disclosure. Cf Am.

Civil Liberties Union v. Fed. Bureau ofInvestigation, 429 F. Supp. 2d 179, 193
(D.D.C. 2006) (noting that the FBI's failure to redact an individual's name from

23

other portions of the record disclosed dissipated his privacy interest in preventing
disclosure of his name elsewhere).

b.

Page 2

The only information on the second page that was properly withheld is the
witness's description of a past grievance (~ 2), a specific statement the witness
overheard(~

2), and the entirety of paragraph 3 because it is identifying in nature.

The remaining information must be disclosed as it speaks to the work environment
as a whole, the negative relationships between co-workers that has contributed to
this environment, and the workplace training.
Although some of the phrases reference a colleague by name and that
colleague has a privacy interest in not being embarrassed or shamed in those
statements made about him or her, that interest is outweighed in this instance by
the public interest in understanding the factors that contributed to the workplace
environment that lead to the investigation. There is little to no public interest in
knowing the actual identity of the person merely for the purpose of knowing who
he or she is. However, the individual's identity is relevant, and arguably
necessary, to provide a more balanced and complete picture of the work
environment because it highlights the non-systemic nature of the issues faced at
the Center. That picture, just as much as negative information about the Center,
informs the public about what their government is up to.

24

c.

Page 3

This page contains only the signature block of the investigator, which has
already been disclosed.

4.

Witness Statement No. 4 (4 responsive pages)

According to the supplemental Vaughn index, the information redacted from
the fourth witness statement included names, "the witness' [s] detailed accounts of
the verbal conflicts among [] employees," references to disciplinary actions, and
"the witness' [s] personal opinions of employees involved in these arguments,
some of which are unflattering." (Doc. 28-1 at 10.) The Forest Service redacted
more information than was proper under Exemption 6.

a.

Page 1

The following information on the first page was properly redacted because a
privacy interest exists in preventing its disclosure and there is no countervailing
public interest: witness's name (ifif 1, 2), job description (if 2), and two references
to past disciplinary action (if~ 5, 6). On the other hand, the witness's general
observations about the Center (ifif 2, 4) must be disclosed because there is no
privacy interest at stake. The witness's privacy interest in not being identified
with the statement and the privacy interest of those individuals mentioned by name
in paragraph 4 outweigh the minimal public interest in the information conveyed
in much of that paragraph. That information may be redacted. However, the

25

witness's rendition of an incident that occurred between other employees in
paragraph 5 must be disclosed because it does not implicate the identity of the
witness and, to the extent it identifies others, it does so only to the extent such
information has already been disclosed elsewhere in the record (i.e., the summary
ofKowack's statement). See Am. Civil Liberties Union, 429 F. Supp. 2d at 193.
The final sentences of paragraph 5 may be redacted, however, as their content
identifies the witness, outweighing the minimal public interest in the information.
b.

Page 2

The second page includes a description of a specific incident where the
identities of those involved have already been disclosed by the Forest Service in
other portions of the record. While this information must be disclosed, the
portions of paragraphs 1 and 2 that describe past disciplinary or grievance actions
·and two phrases in paragraph 1 that are petty commentary about a co-worker
would add very little to the public's understanding of the agency's conduct so
were properly redacted. Additionally, portions of paragraphs 3 and 4 may be
redacted because they either indirectly identify the witness or implicate another
employee who retains a privacy interest in the information. The public interest in
that information is minimal and is outweighed by these privacy interests.
That said, a portion of paragraph 3 and one sentence in paragraph 2 that
discuss a co-worker do so in the context of the workplace environment and the

26

potential allegations of workplace hostility, in which there is a greater public
interest. Although the employee may be embarrassed by the information
contained in this portion of the statement, that privacy interest is outweighed by
the public interest in understanding the context of the investigation. That
information, to the extent it is reasonably segregable, must be disclosed. Much of
the information in paragraph 4 must be disclosed because it merely identifies
parties in a context they have already been identified in other parts of the record;
any privacy interest in that information has dissipated.

c.

Page 3

Paragraph 1 on the third page must be disclosed in its entirety because no
privacy interests are implicated in this paragraph. To the extent the paragraph
identifies non-Education Department employees, it does so only to the extent they
have been identified elsewhere in the record. Because no further information
about them is provided, revealing their identity in this context does not amount to
an unwarranted invasion of their personal privacy. Much of the information in
paragraph 2 implicates both a privacy interest and a public interest as it regards
another person's opinions and commentary about Kowack that are potentially
identifying in nature. To the extent those opinions or commentary would identify
either the witness or the other person, they may be redacted. However, much of
the remaining information speaks directly to the workplace environment and

27

potential threats Kowack may pose to others. The public interest in this
information is high, and it must be disclosed.
The general information and commentary regarding Kowack must be
disclosed(~~

3, 4, 6), redacting only those portions of the summary that names

non-Education Department employees or employees that have not been previously
identified in conjunction with the

investigation(~

3) or where the context of the

statement would identify the witness (~~ 4, 6). Paragraph 5 must be disclosed in
its entirety because there is no cognizable privacy interest in preventing the public
from knowing how the Center performed relative to other centers.
d.

Page 4

Most of the information on this page must be disclosed, as the information
does not implicate the privacy interests of any other individuals, but redacting only
the fourth and fifth sentences because they would identify the witness.
5.

Witness Statement No. 5 (3 responsive pages)

The supplemental Vaughn index describes the fifth statement as a low-level
Forest Service employee. The redacted information includes names, "the
witness' [s] opinions about the verbal conflicts among this small group of
employees," and unfavorable opinions about a specific employee. (Doc. 28-1 at
10.) Having reviewed this statement in camera, some of this information has been
improperly withheld under Exemption 6.

28

a.

Page 1

On the first page, the witness's name(~ 1, 2),job description(~ 2), and
references to a co-worker who is not in the Education Department(~~ 2, 4, 5, 6)
were properly withheld. The Forest Service properly disclosed all the remaining
information on this page.

b.

Page 2

On the second page, the witness's description of Kowack must be disclosed
because there is no privacy interest at stake(~~ 2, 4). Only the information that
identifies the witness, such as specific conversations the witness had and
descriptions of the witness's actions, was properly redacted (~~ 2, 4).

c.

Page 3

On the final page, the witness's signature and the date were properly
redacted and the remainder of the information on that page, the investigator's
signature block, properly disclosed.

6.

Witness Statement No. 6 (3 responsive pages)

According to the supplemental Vaughn index, the final witness statement is
by a low-level Forest Service employee, and the redacted information includes
names, "the witness' [s] opinions about verbal conflicts among this small group of
employees," and unfavorable opinions about a specific employee. (Doc. 28-1 at
11.) In camera review reveals that the Forest Service redacted more information

29

from this statement than was proper under Exemption 6.

a.

Page 1

On the first page, the witness's name(~~ 1, 2),job description(~ 2), and
references to a co-worker who is not in the Education Department(~~ 3, 5, 6, 7)
were properly withheld. The remaining information must be disclosed. This
includes a majority of paragraph 7, which references Kowack alone.

b.

Page 2

On the second page, references to a co-worker who is not in the Education
Department(~~

2, 4) were properly withheld. The remaining information on this

page must be disclosed. The witness recounts an interaction between Kowack and
another employee that has been disclosed elsewhere in the record and would not
identify the witness if disclosed in this

context(~

1). Finally, the content of

paragraph 2 references what management was told about potential work
environment issues and employee concerns. There is a public interest in this
information because it reflects on the agency's conduct in this situation. To the
extent the witness identifies management or other employees, their privacy interest
in not being identified is outweighed.

c.

Page 3

The only information on the page, the investigator's signature block, has
already been disclosed.

30

B.

Administrative Documents
1.

Assessment Report (2 and 13 responsive pages)

As is the case with the witness statements, the Forest Service has redacted
more information from the Assessment Report than may be properly withheld
pursuant to Exemption 6. The Report summarizes the witness statements, and
therefore, the analysis above applies equally to the analysis below.
a.

Page 1

In reference to the individuals that were interviewed, the Ninth Circuit held
on remand that the department employees and the Center Director do not have a
privacy interest in preventing the public from knowing about their involvement in
the investigation. Kowack, 766 F.3d at 1133-34. Therefore, only the last two
names under "Individuals Interviewed" may be redacted and none of the names
included in the paragraph explaining who was interviewed (~ 5) during the
investigation may be withheld. (Doc. 35 at 24.)
b.

Page 2

On the second page, the name of the individual giving the statement may be
properly redacted from paragraphs 1 through 8, but general information about the
workplace environment and other employees must be disclosed. (Id. at 25.) Most
of paragraphs 6 and 8 must be disclosed because with the witness's name redacted,
there is no privacy interest in the remaining information in all of paragraph 6 and

31

most of paragraph 8. The portions of paragraph 8 that implicate privacy interests
of individuals described therein may be properly redacted to prevent identification
of the witness, but the rest of the information must be disclosed. Paragraphs 9, 10,
and 11 were already properly disclosed as they summarize Kowack' s statements
(this includes the first paragraph on page 3 as well).

c.

Page 3

On the third page, the names of the witnesses whose statements are being
summarized were properly redacted from paragraphs 2, 3, and 5-11. (Jd. at 26.)
The only other information that was properly withheld describes a specific
interaction between two individuals that would identify the witness(~ 3). The rest
of the page, including three sentences in paragraph 3, must be disclosed.

d.

Page 4

On the fourth page, the names of the witnesses whose statements are being
summarized were properly redacted from paragraphs 1, 4, 5, and 7-10. (Id. at 27.)
The Forest Service properly disclosed paragraphs 2 and 3, which summarize
Kowack's statements. Paragraph 5 was properly redacted because it references a
specific conversation that the witness had, which is identifying in nature. In
paragraph 8, the identity of the witness and a student and a specific action taken
by the witness were properly redacted. In paragraph 9, the witness's petty
commentary about a co-worker and the name of the co-worker were properly

32

redacted. This information would be embarrassing and there is no public interest
in its disclosure. However, the Forest Service improperly withheld portions of a
summary that reflect on Kowack's interaction with students and other employees,
highlighting concerns about the workplace. This information speaks directly to
the management and environment of the Center and the impact it may be having
on young adults who go there. This information must be

e.

disclosed(~~

9, 10).

Page 5

On the fifth page, the names of the witness whose statement is being
summarized was properly redacted from every paragraph. (Jd. at 28.) The
portions describing an interaction between employees must be partially disclosed
to the extent it does not identify the witness

(~

1), however, as it has already been

disclosed by the Forest Service elsewhere, the privacy interest the individuals have
in not being associated with that incident have dissipated and there is a public
interest in disclosure. The witness's petty commentary about a co-worker and
reference to specific disciplinary action were properly redacted for lack of public
interest (~ 1). The entire second paragraph was properly redacted as it contains
opinions that identify the witness, as well as the witness's petty commentary about
fellow co-workers. In the third, fifth, and sixth paragraphs, the witness's name
was properly redacted. The entire fourth paragraph was properly redacted as it
describes an interaction that identifies the witness.

33

f.

Page 6

On the sixth page, the witnesses' names (~~ 1-7), descriptions of incidents
involving the witnesses (~~ 1, 7), opinions that identify the witness (~~ 2, 6), and
references to disciplinary action(~ 2) were properly redacted. (Jd. at 29.) The
name of a co-worker was also properly redacted from paragraph 3, because
disclosure of the name would result in embarrassment and there is no public
interest in knowing that individual's identity. The final paragraph on page 6, and
the first paragraphs on page 7, (id. at 30), may be properly redacted in part to
prevent identification of the witness as they recount specific incidents.
g.

Page 7

The majority of this page was properly redacted to prevent identification of
the witness. However, some of the information speaks to the work environment
(~~

3, 4, 5, 7), and the content of paragraph 3 directly relates to potential safety

concerns surrounding students. This information must be disclosed.
h.

Page 8

On the eighth page, the names of the witness whose statement is being
summarized was properly redacted from each paragraph. (Jd. at 31.) The only
other information properly redacted from this page includes statements describing
the relationship between the witness and fellow employees (~ 1), specific
disciplinary or past grievance

action(~~

1, 3), and the witness's recount of

34

conversations he or she had or overheard(~ 3). Paragraph 5 may be properly
redacted in its entirety as the opinions discussed therein identify the witness. The
remaining information on this page must be disclosed.
i.

Page 9

The Forest Service improperly redacted almost the entirety of page 9. (Id. at
32.) The page includes numerous references to general workplace behavior and
commentary about the workplace environment in which there is no privacy interest
(~

1) and where the public interest in disclosure outweighs any existing privacy

interests(~~

4, 5, 6, 7). This page also describes two specific incidents between

two employees that led to workplace hostility. The public interest in disclosure of
this information outweighs the individuals' privacy interest in not being connected
with this incident, which has been dissipated by previous disclosure of their
involvement (~~ 4, 6). The content discussing disciplinary actions was properly
redacted,(~~

4, 5, 6, 7), as were phrases that identify the witness through either

context or content(~~ 3, 4). Certain phrases were also properly redacted due to
the privacy interest of the individual described and the low public interest in the
information provided in those
j.

instances(~~

1, 3, 6).

Page 10

On page 10, those phrases in paragraph 1 that implicate privacy interests of
a staff member but have bearing on the workplace environment must be disclosed.

35

(Id. at 33.) The portions of that paragraph that either identify the witness or have

little to say about the workplace environment or the investigation were properly
redacted. The witness's name was properly redacted from each paragraph. The
witness's description ofKowack that does not identify the witness must be
disclosed as there is little to no privacy interest in that information (ilil 3, 5).
However, the witness's conversations with others may be redacted to prevent
identifying the witness (ilil 4, 5). There is no privacy interest in a general
description of how the Center performed relative to other job corps locations, this
information must be disclosed (il 6). Additionally, the witness's conclusions about
the working environment and the Center must be disclosed as they are not
identifying in nature (il 7).

k.

Pages 11, 12, 13, 14 and 15

The first paragraph on page 11 was properly redacted to prevent
identification of the witness. (Id. at 34.) The remainder of page 11, and pages 12,
13, 14, and most of 15 were properly disclosed as they summarize Kowack's
statement. (Id. at 34-38.) The only content properly redacted from page 15 are
references to the witnesses' names and one reference to a job title. (Id. at 39.) The
remaining information on this page must be disclosed. The additional sentence
redacted by the Forest Service in paragraph 5 must be disclosed as the same
information has been disclosed elsewhere in the record and the public interest in

36

understanding the steps the Forest Service took to address operational issues
outweighs any remaining privacy interest.

I.

Page 16

Most of the first paragraph on page 16 must be disclosed because it
references information in which there is no privacy interest and recounts an
interaction between employees identified elsewhere in the record already
disclosed. (Id. at 39.) The only phrases properly redacted from page 16 are those
referencing the witness by name and a description of a specific conversation that is
identifying in nature (~ 1). The rest of page 16 was must be disclosed.

2.

Transmittal Email Message (1 responsive page)

The transmittal email message was not included in the documents submitted
to the Court for in camera review. However, the supplemental Vaughn index
provides sufficient information on the redactions in this document that review of
the unredacted version is unnecessary. The Forest Service has indicated the only
information redacted from this document was the cell phone numbers of the
Employee Relations Specialists assigned to handle the workplace violence
investigation. (Doc. 28-1 at 14.) Disclosure of these numbers would do nothing
to further educate the public about the operations of the Center. See Forest Serv.

Emps., 524 F.3d at 1028 (holding no public interest in release of identities of
employees involved in investigation where the only way the public could benefit

37

would be ifthe public used the information to contact the employees directly).
This information was properly redacted.

3.

List of Exhibits (1 responsive page)

The final document in question is a list of exhibits. (Doc. 35 at 40.) The
names of the witnesses are properly redacted. Even though many of the witnesses
do not have a privacy interest in preventing their identity from being associated
with the investigation as a whole, disclosing their names in this index identifies
them with their respective statements. Therefore, the witnesses' names may be
redacted from the list. The only other information redacted from the list references
individual disciplinary action, in which there is no public interest.

III.

Attorney's Fees
FOIA provides for reasonable attorney's fees and other litigation costs

"reasonably incurred in any case ... in which the complainant has substantially
prevailed." 5 U.S.C. § 552(a)(4)(E). In light of the this Order, the parties are
required to brief this issue.
CONCLUSION

Accordingly, IT IS ORDERED that the Forest Service provide a lessredacted version of the relevant documents to Kowack on or before July 8, 2015,
consistent with this reasoning.
IT IS FURTHER ORDERED that each party must file a brief on the

38

question of attorney's fees on or before June 29, 2015. Briefs are not to exceed
ten (10) pages.

Of\..
Dated this /// day of June, 2015.

39