Sensor Systems Support, Inc. v. Federal Aviation Administration

Filing 29

///ORDER granting in part and denying in part 21 Motion to Dismiss; denying 24 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna) Modified on 2/9/2012 to add: ///(mxm).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sensor Systems Support, Inc.
Case No. 10-cv-262-PB
Opinion No. 2012 DNH 037

v.
Federal Aviation Administration

MEMORANDUM AND ORDER
Sensor Systems Support, Inc. (“Sensor Systems”) filed an
amended complaint on October 3, 2011, seeking to compel the
Federal Aviation Administration (“FAA”) to produce records in
response to its request under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552.

The FAA filed a motion to dismiss for

lack of subject matter jurisdiction or in the alternative for
summary judgment.

Sensor Systems responded with a combined

filing that is both a cross-motion for summary judgment and an
objection to the FAA’s motion.1

1

For the reasons provided below,

Sensor Systems’ combined filing does not comply with Local Rule
7.1(a)(1). Under that rule, “[o]bjections to pending motions
and affirmative motions for relief shall not be combined in one
filing.” Nonetheless, I will consider both parts of the filing
because the FAA has responded to both.

I deny Sensor Systems’ motion and grant in part and deny in part
the FAA’s motion.

I.

BACKGROUND

Sensor Systems sent a FOIA request to the FAA on June 26,
2009.

It sought all correspondence from Michael Hawthorne, FAA

Program Manager, from July 1, 2008 to the time of the request
that pertained to Sensor Systems or Daniel J. Oberlander.
Hawthorne searched his computer files and found a total of 467
pages of responsive documents.

On August 17, 2009, the FAA sent

Sensor Systems 171 pages of correspondence and withheld 296
pages based on a determination that the withheld pages were
exempt from disclosure.
On September 10, 2009, Sensor Systems submitted a timely
appeal of the FAA’s initial determination.

Between October 2009

and May 2010, Sensor Systems sent four letters to the FAA
Director of Administration informing him that the FAA had failed
to timely respond to its appeal.
On July 6, 2010, in response to the FAA’s continuing
failure to respond to its appeal, Sensor Systems filed this
action.

On July 20, the FAA informed Sensor Systems that it was
2

granting the appeal in part and released 261 of the 296 withheld
pages, albeit with redactions on approximately 70 pages.2

On

October 27, the FAA released all 296 pages of the previously
withheld documents.

This final round of production included 67

pages with partial redactions claimed to be exempt from
disclosure.

II.
A.

STANDARDS OF REVIEW

Summary Judgment Standard
The FAA seeks dismissal of this action on the ground that

the court lacks subject matter jurisdiction because the FAA has
not unlawfully withheld records.

In the alternative, the FAA

moves for summary judgment.
Ordinarily, a motion to dismiss for lack of subject matter
jurisdiction is analyzed under Rule 12(b)(1).

A court, however,

must treat a motion challenging subject matter jurisdiction as a
motion for summary judgment “where jurisdictional issues cannot
be separated from the merits of the case.”

Gonzales v. United

States, 284 F.3d 281, 287 (1st Cir. 2002); see Valentin v. Hosp.
2

The FAA represents that the 261 pages that were released
actually were all of the withheld pages because 35 pages were
duplicates.
3

Bella Vista, 254 F.3d 358, 363 & n.3 (1st Cir. 2001).

“A

jurisdictional issue is intertwined with the merits where the
court’s subject matter jurisdiction depends upon the statute
that governs the substantive claims in the case.”

Gonzales, 284

F.3d at 287.
To invoke subject matter jurisdiction under the FOIA, the
plaintiff must allege that the agency “(1) ‘improperly’ (2)
‘withheld’ (3) ‘agency records.’”

Kissinger v. Reporters Comm.

for Freedom of the Press, 445 U.S. 136, 150 (1980); see 5 U.S.C.
§ 552(a)(4)(B).

If the elements of jurisdiction are properly

alleged, the burden shifts to the agency to show that the
records sought by the plaintiff are not agency records or were
not improperly withheld.

U.S. Dep’t of Justice v. Tax Analysts,

492 U.S. 136, 142 n.3 (1989).

“[B]ecause FOIA serves as the

source of both this court’s subject matter jurisdiction and the
plaintiff[’s] cause of action, the jurisdictional inquiry is
intertwined with the merits of [its] claim.”

Wilkinson v. Chao,

292 F. Supp. 2d 288, 291 (D.N.H. 2003); see United States ex
rel. Fine v. MK–Ferguson Co., 99 F.3d 1538, 1543 (10th Cir.
1996).

Accordingly, I must analyze the FAA’s motion under Rule

56.
4

Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,
drawing all reasonable inferences in its favor.

See Navarro v.

Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for it; if that party cannot produce such evidence, the
motion must be granted.”

Ayala-Gerena v. Bristol Myers-Squibb

Co., 95 F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at
323.
B.

The FOIA Standard
The FOIA requires government agencies to make their records

available to the public upon request, unless at least one of
several enumerated exemptions applies.
552(a)(3),(b).

5 U.S.C. §§

An agency seeking to withhold materials
5

requested under the FOIA has the burden of proving that those
materials are exempt from disclosure.

Orion Research Inc. v.

EPA, 615 F.2d 551, 553 (1st Cir. 1980) (citing 5 U.S.C. §
552(a)(4)(B)).

The court conducts a de novo review as to the

validity of the asserted exemptions.

Church of Scientology

Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir.
1994).

Although the FOIA authorizes courts to conduct in camera

review of challenged documents, “[t]he legislative history
indicates that, before in camera inspection is ordered, an
agency should be given the opportunity to demonstrate by
affidavit or testimony that the documents are clearly exempt
from disclosure, and that the court is expected to accord
‘substantial weight’ to the agency’s affidavit.”

Bell v. United

States, 563 F.2d 484, 487 (1st Cir. 1977); see Hayden v. NSA,
608 F.2d 1381, 1387 (D.C. Cir. 1979) (“When the agency meets its
burden by means of affidavits, [i]n camera review is neither
necessary nor appropriate.”).
To satisfy its burden under the FOIA without submitting
undisclosed records for in camera inspection, “the agency must
furnish a detailed description of the contents of the withheld
material and of the reasons for nondisclosure, correlating
6

specific FOIA exemptions with relevant portions of the withheld
material.”

Orion Research, 615 F.2d at 553; see Church of

Scientology, 30 F.3d at 231 (“[The agency] must supply a
relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply.” (internal quotation marks and emphasis
omitted)).

The agency’s justification for the withholding must

be sufficient to give “‘the FOIA requester a meaningful
opportunity to contest, and the district court an adequate
foundation to review, the soundness of the withholding.’”
Church of Scientology, 30 F.3d at 231 (quoting Wiener v. FBI,
943 F.2d 972, 977-78 (9th Cir. 1991)).

If the agency’s

justification for the withholding is sufficient, the court
“‘need not go further to test the expertise of the agency, or to
question its veracity when nothing appears to raise the issue of
good faith.’”

Bell, 563 F.2d at 487 (quoting Weissman v. CIA,

565 F.2d 692, 697 (D.C. Cir. 1977)).

7

III.

ANALYSIS

The FAA moves for summary judgment on the ground that the
redacted parts of the requested documents are exempt from
disclosure under the FOIA.

It relies on an affidavit from

Hawthorne and what is commonly referred to as a Vaughn index.3
The index provides a brief description of each redacted document
and identifies the exemptions claimed to justify nondisclosure.
Sensor Systems objects to the FAA’s motion, arguing that the
FAA’s affidavit and Vaughn index are too vague and conclusory to
allow the court to meaningfully evaluate the claimed exemptions.
Consequently, Sensor Systems contends, the court should order
the agency to produce the records for in camera review.4

3

The term “Vaughn index” refers to Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973). It is an index prepared by an agency that
provides “a general description of each document sought by the
FOIA requester and explains the agency’s justification for
nondisclosure of each individual document or portion of a
document.” Church of Scientology, 30 F.3d at 228.
4

In the same filing, Sensor Systems seeks summary judgment on
the ground that the FAA failed to timely respond to its FOIA
appeal. As I thoroughly explained in my September 16, 2011
Memorandum and Order, the FOIA does not authorize a court to
review an agency’s failure to act on an appeal. Doc. No. 18.
To the extent Sensor Systems is again arguing that the FAA’s
delay in responding to the FOIA appeal entitles it to judgment
as a matter of law, it does so without offering any new
8

The FAA defends its redactions by invoking three of the
FOIA’s enumerated exceptions.

First, it relies on Exception 5

in claiming that certain redactions are authorized either
because the redacted information is protected by the
deliberative process privilege or the attorney-client privilege.
Second, it argues that other redactions are authorized by
Exception 6 because the redacted information qualifies as exempt
personal information.

Finally, it argues that its remaining

redactions are authorized by Exemption 7(C) because the redacted
information was compiled for law enforcement purposes and its
disclosure would result in an unauthorized invasion of personal
privacy.
A.

I consider each of the FAA’s arguments in turn.

Exemption 5
The FOIA exempts from disclosure “inter-agency or intra-

agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the
agency.”

5 U.S.C. § 552(b)(5).

This provision, commonly

referred to as “exemption 5,” is designed to protect the
agency’s decision-making processes.

See NLRB v. Sears, Roebuck

arguments warranting reconsideration of my prior ruling.
Therefore, I deny its motion for summary judgment.
9

& Co., 421 U.S. 132, 149–150 (1975).

The exemption applies to

documents that are privileged in the civil discovery context,
including those protected by the attorney-client, attorney work
product, and deliberative process privileges.

Id.; Providence

Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st Cir.
1992).

The FAA asserts both the deliberative process privilege

and the attorney-client privilege.
1.

Deliberative Process Privilege

The FAA claims the deliberative process privilege with
respect to 50 of the 67 redacted pages.

The purpose of the

privilege is to “encourage[] frank and open discussions of
ideas, and, hence, improve[] the decisionmaking process.”

Nat’l

Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117 (9th
Cir. 1988).

The privilege performs this safeguarding function

in at least three ways:
[I]t serves to assure that subordinates within an
agency will feel free to provide the decisionmaker
with their uninhibited opinions and recommendations
without fear of later being subject to public ridicule
or criticism; to protect against premature disclosure
of proposed policies before they have been finally
formulated or adopted; and to protect against
confusing the issues and misleading the public by
dissemination of documents suggesting reasons and
rationales for a course of action which were not in
fact the ultimate reasons for the agency’s action.
10

Providence Journal, 981 F.2d at 557 (quoting Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).
“The exemption thus covers recommendations, draft documents,
proposals, suggestions, and other subjective documents which
reflect the personal opinions of the writer rather than the
policy of the agency.”

Coastal States, 617 F.2d at 866.

The First Circuit has held that a document must be both
“predecisional” and “deliberative” to qualify for the
deliberative process privilege.
557.

Providence Journal, 981 F.2d at

A document is “predecisional” if the agency can (1)

“pinpoint the specific agency decision to which the document
correlates;” (2) “establish that its author prepared the
document for the purpose of assisting the agency official
charged with making the agency decision;” and (3) “verify that
the document precedes, in temporal sequence, the decision to
which it relates.”
omitted).

Id. (internal quotation marks and citations

A document is “deliberative” if it: (1) “formed an

essential link in a specified consultative process;” (2)
“reflects the personal opinions of the writer rather than the
policy of the agency;” and (3) “if released, would inaccurately
11

reflect or prematurely disclose the views of the agency.”

Id.

at 559 (internal quotation marks and alterations omitted).
The FAA asserts the deliberative process privilege for two
categories of redacted documents: draft responses to a
congressional inquiry from Senator Judd Gregg and intra-agency
email exchanges regarding the FAA’s Bermuda project.
a.

Draft Responses to the Congressional Inquiry

The FAA asserts the deliberative process privilege with
respect to 21 redacted documents involving drafts of its
response to the congressional inquiry from Senator Gregg
regarding Sensor Systems’ work in Bermuda.5

The FAA withheld

portions of its drafts that did not appear in the final agency
response to the inquiry.

Hawthorne Aff. ¶ 16, Doc. No. 21-2.

Other redactions involve email messages that contain proposed
revisions to the draft responses or that reveal FAA employees’
thoughts and deliberations regarding how to address allegations
raised in the inquiry.

Id.

The FAA’s draft responses to the congressional inquiry and
discussions regarding those responses are predecisional, as they

5

Vaughn Doc. Nos. 18, 20-21, 25, 27, 29-30, 37, 41, 43, 130,
134-5, 136, 140-1, 142, 144, 145, 275-6. See Doc. No. 21-3.
12

predated the agency’s final response and were prepared to assist
the agency official charged with responding to the inquiry.
Providence Journal, 981 F.2d at 557; Hawthorne Aff. ¶ 16.

See
The

disputed issue is whether the draft responses and agency
employees’ comments on those drafts are deliberative.
Courts that have considered FOIA requests for agencies’
draft responses to congressional inquiries have held that such
documents are deliberative.

See, e.g., Sussman v. U.S. Dep’t of

Justice, No. 03 Civ. 3618(DRH)(ETB), 2008 WL 2946006, at *2-4
(E.D.N.Y. July 29, 2008); Sierra Club v. U.S. Dep’t of Interior,
384 F. Supp. 2d 1, 19-20 (D.D.C. 2004); Mittleman v. King, No.
Civ.A. 93–1869 SSH, 1997 WL 911801, at *8 (D.D.C. Nov. 4, 1997);
Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C.
1995).

Draft documents in general are deemed deliberative

“because comparing them to final documents can disclose
editorial judgments that reflect the agency decisionmaking
process.”

Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of Health &

Human Servs., 63 F. Supp. 2d 104, 108 (D. Mass. 1999); see Mobil
Oil Corp. v. EPA, 879 F.2d 698, 703 (9th Cir. 1989); Nat’l
Wildlife, 861 F.2d at 1121-22; Dudman Comms. Corp. v. Dep’t of
the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987); Russell v.
13

Dep’t of the Air Force, 682 F.2d 1045, 1048-49 (D.C. Cir. 1982).
Similarly, opinions and recommendations of agency employees
regarding issues addressed in draft documents “are themselves
the essence of the deliberative process” because they represent
“the mental processes of the agency in considering alternative
courses of action prior to settling on a final plan.”
Wildlife, 861 F.2d at 1121-22.

Nat’l

Release of those materials would

discourage candid discussion within the agency regarding issues
that factor into the decision-making calculus.

Id.; see United

States v. Nixon, 418 U.S. 683, 705 (1974).
Both the FAA’s draft responses to the congressional inquiry
and the agency employees’ comments on those drafts meet the
First Circuit’s “deliberative document” test.
Journal, 981 F.2d at 559-560.

See Prudential

First, they “formed an essential

link in a specified consultative process” because the documents
were prepared to facilitate the agency’s final response to the
inquiry and were not “merely cumulative or peripheral.”
id.; Hawthorne Aff. ¶ 16.

See

Second, the documents reflect

opinions of individual employees as opposed to the official
position of the agency, which is contained in the final version
of the response.

See Prudential Journal, 981 F.2d at 559-560.
14

Lastly, release of the redacted information would inaccurately
reflect the views of the agency, as it includes advice,
recommendations, and conclusions not incorporated into the
agency’s final response.

See id.

Therefore, the FAA properly

withheld portions of the draft responses as material protected
under the deliberative process privilege.
Sensor Systems’ argument that the deliberative process
privilege does not attach to the draft responses because
responding to a congressional inquiry involves neither the
agency’s decisional nor its policymaking function is
unpersuasive.

The First Circuit has clarified that the

deliberative process privilege is not limited to consultations
over official agency policy.
at 559-560.

See Prudential Journal, 981 F.2d

“Rather, the appropriate judicial inquiry is

whether the agency document was prepared to facilitate and
inform a final decision or deliberative function entrusted to
the agency.”

Id. at 560.

directed at the FAA.

Here, the congressional inquiry was

The FAA had to respond to allegations

Sensor Systems’ raised against the agency in the inquiry.
Therefore, the agency’s response to that inquiry plainly
involved a deliberative function entrusted to the agency.
15

The

fact that the response is not a formal act of agency
policymaking is irrelevant.
Because the FAA’s Vaughn index and Hawthorne’s affidavit
are sufficiently detailed to enable me to determine that the
redacted portions of the draft responses to the congressional
inquiry and the related email exchanges are entitled to
nondisclosure under Exemption 5, I need not conduct in camera
review.

See Church of Scientology, 30 F.3d at 231; Bell, 563

F.2d at 487.

The FAA is entitled to summary judgment with

respect to those 21 documents.
b.

Email Exchanges Regarding the Bermuda Project

The FAA also asserts the deliberative process privilege
with respect to redactions in 29 email exchanges6 regarding
implementation of the agency’s December 2007 agreement with the
Government of Bermuda.

The agreement was concluded to support

an upgrade to the radar system at the Wade International Airport
in Bermuda.
project.

The FAA agreed to loan its equipment for the

The Government of Bermuda contracted with Sensor

Systems to manage the acquisition and installation of the loaned
6

Vaughn Doc. Nos. 9, 10, 23, 65, 71, 72, 76-77, 81, 99, 100-101,
103, 104-5, 107, 107-109, 112, 120, 121, 148, 150-7, 157, 179,
184, 203, 267, 269, 272, 277. See Doc. No. 21-3.
16

FAA equipment.

Redactions in the intra-agency email exchanges

regarding the Bermuda project contain “employees’ opinions and
recommendations concerning the installation [of the loaned FAA
equipment], technical difficulties in that installation, and
government-to-government policy.”

Hawthorne Aff. ¶ 15.

Sensor Systems argues that all of the documents in this
category are outside the scope of the deliberative process
privilege because they post-date the agency’s December 2007
agreement with the Government of Bermuda.

As such, Sensor

Systems contends, the documents cannot qualify as predecisional,
as they are “merely reflective of those policies and decisions
already enunciated” in the agreement.

Doc. No. 24-1 at 14-15.

In response, the FAA maintains that signing the agreement did
not signal the final agency decision that would ever be made
regarding the Bermuda project; rather, it “was merely the first
step in the relationship between all of the relevant parties.”
Doc. No. 28 at 5.
I agree with the FAA that the emails should not necessarily
be deemed to be post decisional merely because they were
prepared after the FAA’s agreement with the government of
Bermuda.

The agency clearly had to make subsequent decisions
17

regarding implementation of the agreement and Sensor Systems has
failed to explain why emails that predate such decisions cannot
be considered predecisional under any circumstances.
The FAA, however, cannot meet its burden of establishing
that the email exchanges at issue are predecisional simply by
stating that they involved the continuing process of agency
decision-making regarding the Bermuda project.

If the FAA’s

conclusory position were sufficient to invoke the privilege, the
exemption would effectively swallow the FOIA’s rule of broad
disclosure.

See Church of Scientology, 30 F.3d at 228-29.

The

controlling authority that the FAA cites does not hold to the
contrary.

See NLRB, 421 U.S. at 151 n.18; Providence Journal,

981 F.2d at 559.

Although not all intra-agency deliberations

“ripen into agency decisions,” the FAA must at the very least
identify the decision contemplated in those deliberations.
NLRB, 421 U.S. at 151 & n.18.

See

Otherwise, the predecisional

prong of the deliberative process privilege test would be
inconsequential.

Providence Journal, 981 F.2d at 557.

The following are but a few examples of patently inadequate
descriptions of the redacted email exchanges regarding the
Bermuda project:
18

•

Vaughn Doc. No. 148: “E-mail of 6/8/09 from Michael
Hawthorne to Maria DiPasquantonio concerning issues
regarding radar installation. Deliberative.” Doc. No. 213 at 8.

•

Vaughn Doc. No. 23: “E-mail dated 9/23/09 from Michael
Hawthorne to Maria DiPasquantonio concerning Bermuda’s
sharing of government-to-government information with
[Sensor Systems]. Redacted portion of e-mail that reveals
FAA employee’s thoughts on what Bermuda was sharing with
[Sensor Systems]. Deliberative.” Id. at 3.

In neither instance has the FAA provided sufficient information
to enable me to determine whether the email exchange predated
any sort of contemplated agency decision or action regarding the
project.

See Providence Journal, 981 F.2d at 557.

Nor do those

descriptions explain with sufficient detail the deliberative
nature of the redacted portions of those emails.

Id. at 559.

The remaining index entries with respect to documents in this
category suffer from a similar infirmity.
Because neither the Hawthorne affidavit nor the Vaughn
index provides sufficiently detailed information to enable me to
determine whether the deliberative process privilege applies, I
deny the FAA’s motion for summary judgment with respect to email
exchanges regarding the Bermuda project.

The FAA must provide a

supplemental Vaughn index and/or supporting affidavits to
satisfy its burden of proving that Exemption 5 permits
19

nondisclosure of those documents.

Alternatively, the FAA must

produce the documents for in camera review.
2.

Attorney-Client Privilege

The FAA asserts the attorney-client privilege applies to
eight pages of redacted email exchanges between Hawthorne and
FAA legal counsel.7

The agency, however, has neglected to supply

the court with sufficient facts, either in its index or in the
Hawthorne affidavit, to permit a conclusion that the attorneyclient privilege applies.
The attorney-client privilege “protects confidential
communications made by a client to his attorney.”

Maine v. U.S.

Dep’t of the Interior, 298 F.3d 60, 70 (1st Cir. 2002).

The

First Circuit has explained that
[t]he privilege also protects from disclosure
documents provided by an attorney if the party
asserting the privilege shows: (1) that he was or
sought to be a client of the attorney; (2) that the
7

Vaughn Doc. Nos. 18, 20-21, 65, 72, 121, 136, and 277. See
Doc. No. 21-3. The FAA also asserts the deliberative process
privilege with respect to all eight pages. Four pages involve
draft responses to the congressional inquiry, which I determined
to be exempt under the deliberative process privilege (Vaughn
Doc. Nos. 18, 20-21, and 136). The remaining four pages involve
email exchanges regarding the Bermuda project, with respect to
which the FAA has not met its burden of proving that the
deliberative process privilege applies.
20

attorney in connection with the document acted as a
lawyer; (3) that the document relates to facts
communicated for the purpose of securing a legal
opinion, legal services or assistance in legal
proceedings; and (4) that the privilege has not been
waived.
Id. at 71 (internal quotation marks and alterations omitted).
The agency asserting the privilege must explain in a nonconclusory fashion “how the documents claimed to be protected
establish that they relate to a confidential client
communication.”

Id.

The agency cannot “assume[] that the

requirement of client communicated confidentiality is satisfied
merely because the documents are communications between a client
and attorney.”

Id.; see Mead Data Cent., Inc. v. U.S. Dep’t of

the Air Force, 566 F.2d 242, 253 (D.C. Cir. 1977) (“The
[attorney-client] privilege does not allow the withholding of
documents simply because they are the product of an attorneyclient relationship . . . .

It must also be demonstrated that

the information is confidential.”).
Descriptions of the eight pages with respect to which the
FAA claims the privilege give no indication as to the
confidentiality of the information on which they are based.
Vaughn Document Number 65 is representative: “E-mail from
21

Michael Hawthorne dated 3/27/09 to FAA attorney Mark Bury on
government-to-government policy.

Redacted portions of e-mail

that reveals policy discussions.

Attorney-client privilege,

deliberative.”

Doc. No. 21-3 at 5.

This index entry provides

no explanation justifying exemption based on the attorney-client
privilege, as it “fails to identify any circumstance expressly
or inferentially supporting confidentiality.”
at 72.

Maine, 298 F.3d

Descriptions of the remaining documents in this category

are similarly insufficient.
I deny the FAA’s motion with respect to documents claimed
to be exempt under the attorney-client privilege.

The FAA must

provide a supplemental Vaughn index and/or supporting affidavit
justifying the exemption or produce the documents for in camera
review.
B.

Exemption 6
The FAA claims FOIA Exemption 6 with respect to four

documents redacted to exclude the name and other identifying
information of an FAA employee.

The employee was investigated

22

by the OIG for possible misconduct in working “on the side” for
Sensor Systems in Bermuda.8

Hawthorne Aff. ¶¶ 6, 17.

Exemption 6 protects from disclosure “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.”
552(b)(6).

5 U.S.C. §

The exemption “protect[s] individuals from the

injury and embarrassment that can result from the unnecessary
disclosure of personal information.”

U.S. Dep’t of State v.

Washington Post Co., 456 U.S. 595, 599 (1982).

To determine

whether information is properly withheld under this exemption, I
must balance the relative privacy and public interests.

Maynard

v. CIA, 986 F.2d 547, 566-67 (1st Cir. 1993).9
Under some circumstances, individuals retain a strong
privacy interest in their identities, and information
8

Vaughn Doc. Nos. 45, 47, 48, and 50. See Doc. No. 21-3. The
FAA cites Exemption 6 in addition to Exemption 7(C) for four
additional documents involving the contact information of an OIG
special agent. Because I conclude that his contact information
is covered by Exemption 7(C), I do not address whether it also
exempt under Exemption 6.
9

Because both Exemptions 6 and 7(C) require a balancing approach
that weighs public and private interests, cases involving
Exemption 7(C) inform my analysis. Exemption 7(C) is similar
to, but more protective of privacy, than Exemption 6. See U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 756 (1989).
23

identifying individuals may be withheld to protect that privacy
interest.

Church of Scientology, 30 F.3d at 237-38; see

Providence Journal, 981 F.2d at 568.

In particular, “[p]ublic

identification of the targets of law enforcement investigations
can subject those identified to embarrassment and potentially
more serious reputational harm.”

Providence Journal, 981 F.2d

at 568 (internal quotation marks and citation omitted).
Although a government employee investigated for performancerelated misconduct “generally possesses a diminished privacy
interest” in comparison to private individuals, “an internal
criminal investigation would not invariably trigger FOIA
disclosure of the identity of the targeted government employee.”
Id.

Public identification of such employees “‘could conceivably

subject them to harassment and annoyance in the conduct of their
official duties and in their private lives.’”

Id. (quoting New

Eng. Apple Council v. Donovan, 725 F.2d 139, 142 (1st Cir.
1984)).

Therefore, the FAA employee whose name and identifying

information the agency redacted from certain documents so as not
to identify him as the target of the OIG investigation has a
privacy interest in the nondisclosure of his identity.

24

To determine whether disclosure of the employee’s identity
would constitute a “clearly unwarranted invasion of personal
privacy,” 5 U.S.C. § 552(b)(6), I must weigh the employee’s
privacy interest against any countervailing public interest in
disclosure.

See Maynard, 986 F.2d at 566-67.

“[T]he only

cognizable ‘public interest’ for purposes of FOIA is ‘the
citizens’ right to be informed about ‘what their government is
up to.’’”

Id. at 566 (quoting U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773
(1989)).
The First Circuit has recognized that “[t]he public has a
significant, enduring interest in remaining informed about
actions taken by public officials in the course of their
official duties.”

Donovan, 725 F.2d at 144; see Providence

Journal, 981 F.2d at 568.

In a case like this, where the agency

has disclosed the fact that an unnamed employee was accused of
misconduct, “the relevant interest is ‘only in knowing who the
public servant[] [is] that [was] involved in the governmental
wrongdoing.’”

Trentadue v. Integrity Comm., 501 F.3d 1215,

1233-34 (10th Cir. 2007) (quoting Stern v. FBI, 737 F.2d 84, 92
(D.C. Cir. 1984)).

Therefore, disclosure of the redacted
25

information “would shed little light on the conduct of the
agency; rather, it would simply identify the alleged wrongdoer.”
Id. at 1234.
The rank of the agency official investigated for misconduct
is an important consideration in weighing the public interest in
the disclosure of his or her identity.

See Providence Journal,

981 F.2d at 568 (“The higher the rank of the public official
alleged to have engaged in misconduct, the greater the
legitimate public interest in disclosure is likely to be.”);
Trentadue, 501 F.3d at 1234 (“The public interest in learning of
a government employee’s misconduct increases as one moves up an
agency’s hierarchical ladder.”).

In cases involving low-ranking

officials, courts have generally held that the privacy interest
of that employee outweighs the public interest in the disclosure
of his or her identity.

See Trentadue, 501 F.3d at 1234;

Maynard, 986 F.2d at 566-67; Providence Journal, 981 F.2d at
568-69; Stern, 737 F.2d at 92-93.
Here, the FAA properly withheld the identity of the FAA
employee who was investigated for misconduct because the
disclosure would constitute a clearly unwarranted invasion of
the employee’s privacy.

Sensor System’s argument that it
26

already knows the identity of the employee “in no way undermines
the privacy interests of [that] individual[] in avoiding
harassment and annoyance that could result should the [agency]
confirm [his or her identity].”

Weisberg v. U.S. Dep’t of

Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984); see Thomas v.
U.S. Dep’t of Justice, 531 F. Supp. 2d 102, 109 (D.D.C. 2008)
(“Third parties’ privacy interests are not lost because a
requester knows or can determine from a redacted record their
identities.”).

The individual was a low-level FAA employee and

the disclosure of his or her identity would shed little light on
the operation of the agency.

The FAA is, therefore, entitled to

summary judgment with respect to the documents redacted to
exclude the name and other identifying information of the
investigated employee.
C.

Exemption 7(C)
The last category of withheld material involves four

documents from which the FAA redacted the contact information of
OIG Special Agent Gerard Tucker.10

The contact information

includes his work address, email address, office telephone

10

Vaughn Doc. Nos. 85-86, 182, 282.
27

See Doc. No. 21-3.

number, and cell phone number.

The FAA claims Exemption 7(C)

with respect to those redactions.
Exemption 7(C) protects from disclosure information
compiled for law enforcement purposes that “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.”

5 U.S.C. § 552(b)(7)(C).

The exemption “requires

balancing the privacy interests at issue against any public
interest in disclosure.”

Church of Scientology, 30 F.3d at 237;

see Reporters Comm., 489 U.S. at 762.
The documents at issue here are communications between
Special Agent Tucker and Hawthorne made in the course of an OIG
investigation.

Hawthorne Aff. ¶ 13.

compiled for law enforcement purposes.

As such, they were

143.

See Donovan, 725 F.2d at

The issue is whether disclosure of the redacted parts

would constitute an unwarranted invasion of Special Agent
Tucker’s privacy.

I conclude that it would.

Law enforcement personnel have significant privacy
interests in keeping their names or other identifying
information from being generally disclosed.
at 566; Donovan, 725 F.2d at 142.

Maynard, 986 F.2d

That privacy interest

“‘encompass[es] the individual’s control of information
28

concerning his or her person,’” including address and other
contact information.

U.S. Dep’t of Defense v. Fed. Labor

Relations Auth., 510 U.S. 487, 500 (1994) (quoting Reporters
Comm., 489 U.S. at 763)).

Hence, Special Agent Tucker’s privacy

interest in keeping his contact information undisclosed is,
substantial.

See id.

As the First Circuit has noted,

Even though OIG investigations into white collar
criminal activity . . . might not invite the type of
animosity and motivation for reprisal activated by FBI
searches and arrests pursuant to violent crimes, the
individual officer’s interest in retaining the
capability to perform his tasks effectively by
avoiding untoward annoyance or harassment is no less
significant. The potential for this annoyance or
harassment need not rise to the level of physical
endangerment before the protection of 7(C) may be
invoked.
Donovan, 725 F.2d at 143.
“Where the privacy concerns addressed by Exemption 7(C) are
present, the exemption requires the person requesting the
information to establish a sufficient reason for the
disclosure.”

Nat’l Archives & Records Admin. v. Favish, 541

U.S. 157, 172 (2004).

To be sufficient, the reason for the

disclosure must pertain to “‘the citizens’ right to be informed
about ‘what their government is up to.’’”

Maynard, 986 F.2d at

566 (quoting Reporters Comm., 489 U.S. at 773)).
29

Here, Sensor Systems has failed to demonstrate how the
disclosure of Special Agent Tucker’s contact information would
reveal “what the government is up to.”

See id.

It merely

argues that the redacted information is already in the public
forum because the subpoena the OIG issued to Sensor Systems
included the agent’s contact information.
inapposite.

That argument is

“An individual’s interest in controlling the

dissemination of information regarding personal matters [such
one’s home address] does not dissolve simply because that
information may be available to the public in some form.”

Fed.

Labor Relations Auth., 510 U.S. at 500.
Given that Sensor Systems has not established a FOIArelated public interest in the disclosure, I need not dwell upon
the balance between private and public interests.

See id.

(“Because a very slight privacy interest would suffice to
outweigh the [virtually nonexistent] public interest, we need
not be exact in our quantification of the privacy interest.”).
As the First Circuit remarked in a similar case, “something
outweighs nothing every time.”

Maynard, 986 F.2d at 566

(internal quotation marks and ellipses omitted).

Therefore, the

FAA is entitled to summary judgment with respect to redactions
30

involving Special Agent Tucker’s contact information because it
has met its burden of proving that the information is protected
from disclosure under Exemption 7(C).
D.

Attorneys’ Fees
Sensor Systems requests that it be awarded attorneys’ fees

at this stage in the litigation.

The FOIA allows the court, in

its discretion, to award attorneys’ fees to a requesting party
who substantially prevails in a FOIA request.
552(a)(4)(E).

5 U.S.C. §

An attorneys’ fee award depends upon a two-step

process: substantial success and the balance of four equitable
factors.

See Maynard, 986 F.2d at 568.

Although an interim

award of fees may be appropriate in some cases, Sensor Systems
has made an insufficient showing in support of its request.
See, e.g., Allen v. FBI, 716 F. Supp. 667, 672 (D.D.C. 1988).
Accordingly, I decline to exercise my discretion to award
attorneys’ fees at this stage.

IV.

CONCLUSION

For the aforementioned reasons, I deny Sensor Systems’
motion for summary judgment (Doc. No. 24).

I grant the FAA’s

motion for summary judgment (Doc. No. 21) with respect to the
31

redacted documents involving: (1) draft responses to the
congressional inquiry; (2) name and identifying information of
FAA employee investigated for misconduct; and (3) contact
information for Special Agent Tucker.

I deny the FAA’s motion

with respect to the remaining documents.

I direct the agency

either to produce a supplemental Vaughn index and/or supporting
affidavit to enable me to determine whether redactions in those
documents are exempt from disclosure, or to submit the documents
for in camera review.

The FAA must produce the requested

information and resubmit its motion for summary judgment within
14 days from the date of this Memorandum and Order.

Sensor

Systems shall have 14 days from the date of the FAA’s submission
to object to the motion.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

February 9, 2012
cc:

G. Shepard Bingham, Esq.
Matthew A. Caffrey, Esq.
Michael T. McCormack, Esq.
32