Cook v. National Archives & Records Administration
MEMORANDUM & ORDER granting 7 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. The Plaintiff's Motion for Summary Judgment is DENIED, and Defendant's Motion for Summary Judgment is GRANTED. The Clerk the Court is directed to terminate motions number 7 and 17 on the ECF docket, and to close the case. (Signed by Judge Kevin Thomas Duffy on 1/30/2013) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MEMORANDUM & ORDER
NATIONAL ARCHIVES AND RECORDS
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KEVIN T. DUFFY
UNITED STATES DISTRICT JUDGE
Plaintiff John Cook, a political reporter for Gawker Media,
requested documents from the National Archives and Records
Administration ("NARA" or "the government") pursuant to the
Freedom of Information Act ("FOIA") relating to research
requests made on behalf of former President George W. Bush and
former Vice President Dick Cheney.
NARA denied Mr. Cook's
request in part, citing the Presidential Records Act and FOIA
Exemption 6 as its reasons for withholding certain information.
Mr. Cook initiated this lawsuit to challenge NARA's
determination and the parties have cross moved for summary
For the reasons discussed below, Plaintiff's motion
is DENIED and the government's motion is GRANTED.
Records Act ("PRA"), 44 U.S.C.
(2012), was passed in 1978 in the wake of Watergate to establish
"the public ownership of records created by future presidents
and their staffs in the course of discharging their official
and "procedures governing the preservation and public
availability of these records at the end of a Presidential
H.R. Rep. No. 95-1487, at 2 (1978).
the Nixon Administration, Presidential records were generally
viewed as the President's personal property.
Turley, Presidential Papers and Popular Government: The
Convergence of Constitutional and Property Theory in Claims of
Ownership and Control of Presidential Records, 88 Cornell L.
Rev. 651, 657-67 (2003)
(discussing the history of access to
The PRA makes public "Presidential records," which are
defined as "any documentary materials relating to the political
activities of the President or members of his staff, but only if
such activities relate to or have a direct effect upon the
carrying out of constitutional, statutory, or other official or
ceremonial duties of the President."
The PRA explicitly does not encompass a President's
See 44 U.S.C.
term 'Presidential records'
2201 (2) (B) (iii)
. does not include any
documentary materials that are .
(ii) personal records
It tasks NARA's chief officer, the Archivist of the
United States, with "responsibility for the custody, control,
and preservation of, and access to, the Presidential records .
2203 (f) (l)
The PRA places two restrictions on public access to
(i) a five-year time period during which
an administration's files are made available only for archival
purposes, see 44 U.S.C.
2204 (b) (2) (A)
(2012), and (ii) a
period of up to 12 years during which access is restricted for
documents in six enumerated categories designated by the
President before he leaves office.
See 44 U.S.C.
Former officials of the relevant Administration are
permitted to access the documents during the restricted periods,
and they may designate representatives to access the documents
on their behalf.
President, the judiciary, and Members of Congress are also
permitted early access to the restricted documents for
these documents, officials or their designees must make a
request to NARA.
See Robinson Decl.
refers to these requests made by or on behalf of current and
former officials as "special access requests."
special access requests "reveal the identity of the requester
and the substance of what the requester seeks."
1 More specifically,
" [s]pecial access requests generally may include,
research on behalf of the former President, former Vice President, and former
First Lady for their memoirs; research for specific documents, including for
Law in Supp. Mot. Summ. J. at 5.
NARA maintains records of
special access requests.
On October 21, 2010, Plaintiff John Cook submitted a ForA
request to NARA requesting the agency's documentation of:
"all requests for access to records received by the George
W. Bush Presidential Library since February 1, 2009";
• "all requests for access to the records of former Vice
President Dick Cheney received by NARA staff since February
1, 2009"; and
all correspondence regarding those requests.
Compl. Ex. 1.
NARA responded on December 1, 2010, indicating that it
would disclose ForA requests for access to Presidential records
made by the general public, but that it was categorically
withholding the special access requests.
See Compl. Ex. 2.
NARA indicated that it treats special access requests as
"researcher reference requests," which, in its view, are
nondisclosable under ForA Exemption 6, 5 U.S.C.
Exemption 6 protects the disclosure of
information that would "constitute a clearly unwarranted
invasion of personal privacy."
NARA also explained that
"ForA requesters are not subject to the same right to privacy as
Compl. Ex. 2.
scholarly publications; requests for copies of textual and audiovisual
materials to be sent to the permanent facility's museum design firm; as well
as requests from individuals requesting copies of their photographs taken
with the former President or Vice President." Robinson Decl. , 15.
Mr. Cook appealed, see Compl. Ex. 3, and upon
reconsideration NARA retracted its decision to withhold the
requests made by the incumbent President, the judiciary, and
Members of Congress on the basis that those officials do not
have a personal privacy interest in the information sought as
required by Exemption 6, since they are only permitted access to
the records for government business.
(2012) i compl. Ex. 4.
See 44 U.S.C.
NARA maintained its position, however,
that former President Bush and Vice President Cheney's requests
for records from their own Administration are protected by
See Compl. Ex. 4.
Mr. Cook filed this lawsuit on November 29, 2011.
Cook, who is a political reporter for Gawker Media, has offered
two public interest justifications for seeking this information:
gain insight into the way in which the former
President and Vice President have chosen to shape the public's
perception of their time in office, and to provide this insight
to the public through online news stories," Compl.
to "shed light on how NARA is administering the PRA."
5, and (ii)
Memo. Law in Supp. Mot. Summ. J. at 1.
The parties have agreed by stipulation that the issues in
this case are narrowed to the FOIA requests for (1) special
access requests to NARA by former President Bush, former Vice
President Cheney, and their designated representatives, and (2)
See Dkt. NO.6.
The parties have cross-
moved for summary judgment.
Standard of Review
FOIA cases are generally!
on summary judgment.
See Bloomberg L.P.
and most appropriately,
Board of Governors
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law."
Ci v .
56 (a) .
"In ruling on a motion for summary judgment! a court must
resolve all ambiguities and draw all factual inferences in favor
of the nonmoving party."
(2d Cir. 2006)
McClellan v. Smith, 439 F.3d 137, 144
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). "Inferences and burdens of proof on cross
motions for summary judgment are the same as those for a
unilateral summary judgment motion."
Ferrigno v. U.S. Dep't of
Homeland Sec., No. 09 Civ. 5878, 2011 WL 1345168, at *3
(S.D.N.Y. Mar. 29, 2011)
(citing Straube v. Florida Union Free
Sch. Dist., 801 F. Supp. 1164, 1174 (S.D.N.Y. 1992).
cross-movant must present sufficient evidence to satisfy its
burden of proof on all material facts." U.S. Underwriters Ins.
Co. v. Roka LLC, No. 99 Civ. 10136, 2000 WL 1473607, at *3
(S.D.N.Y. Sept. 29, 2000).
The agency asserting the exemption - here, NARA - bears the
burden of justifying nondisclosure.
Wilner v. Nat'l Sec.
592 F.3d 60, 69 (2d Cir. 2009).
"The agency's decision
that the information is exempt from disclosure receives no
deferencei accordingly, the district court decides de novo
whether the agency has sustained its burden."
v. Board of Governors of the Fed. Reserve Sys., 601 F.3d 143,
147 (2d Cir. 2010).
FOIA Exemption 6
FOIA requires federal agencies to make certain information
available to the public and sets forth the methods by which the
public can request the information.
See generally 5 U.S.C.
FOIA was enacted to "open agency action to the
light of public scrutiny." U.S. Dep't of Justice v. Reporter's
Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989)
of Air Force v. Rose, 425 U.S. 352, 372 (1976)).
are, however, nine categories of information that are exempt
from disclosure under FOIA.
See 5 U.S.C.
Exemption 6 of FOIA - the exemption the government is
permits an agency to withhold "personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy."
552 (b) (6)
"Exemption 6 is intended to
'protect individuals from the injury and embarrassment that can
result from the unnecessary disclosure of personal
Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005)
Dep't of State v. Washington Post Co., 456 U.S.
To determine whether information is protected from
disclosure under Exemption 6, courts undertake a two-part
See Wood, 432 F.3d at 86.
First, the Court must
"determine whether the personal information is contained in a
file similar to a medical or personnel file.
Court must "balance the public's need for the information
against the individual's privacy interest to determine whether
the disclosure of the names would constitute a clearly
unwarranted invasion of personal privacy."
(internal citations omitted).
Wood, 432 F.3d at 86
If the information sought is not
a personnel, medical, or similar file, the Court need not engage
in the balancing inquiry.
Families for Freedom v.
U.S. Customs and Border Prot., 837 F. Supp. 2d 287, 301
A. The Special Access Requests are 'Similar Files.'
Since the special access requests are not medical or
personnel files, they are only exempt from disclosure under
Exemption 6 if they constitute 'similar files.'
See 5 U.S.C.
The Supreme Court has interpreted the term
'similar files' broadly to include any
records on an individual which can be identified as applying to
Washington Post, 456 U.S. at 602 (protecting
from disclosure under FOIA Exemption 6 documents indicating
whether two Iranian nationals
ld valid United States
see Wood 432 F.3d at 86
ask whether the
records at issue are likely to contain the type of personal
ormation that would be in a medical or personnel file.").
the Supreme Court has observed,
House and Senate Reports,
although not defining the phrase 'similar files,'
Congress' primary purpose in enacting Exemption 6 was to protect
individuals from the injury and embarrassment that can result
from the unnecessary disclosure of personal information."
Washington Post, 456 U.S. at 599.
Courts have considered records that contain information
such as "place of birth, date of birth, date of marriage,
employment history, and comparable data" as 'similar files' for
the first step of the Exemption 6 analys
456 U.S. at 600.
Documents containing marital status and names
of personnel's spouses are also 'similar files.'
Vance, 648 F.2d 10, 17 (D.C. Cir. 1980)
See Simpson v.
(marital status and
names of spouses of foreign-service personnel were properly
withheld under Exemption 6), abrogated on other grounds
Washington Post, 456 U.S. 595.
Likewise, an agency's
investigative files that likely contain identifying information
about (i) the sUbject of an investigation or (ii) third parties
such as witnesses constitute 'similar files.'
See Wood, 432
F.3d at 87 ("highly detailed" records containing "personal
information about the sUbjects of the investigation" - FBI
agents accused of filing false affidavits for arrest warrants
and "private information about other individuals, particularly
witnesses" were 'similar files'
for Exemption 6 analysis)
Perlman v. U.S.
312 F.3d 100, 106 (2d Cir.
(report of investigation involving improper conduct by
agency official was a 'similar file' because it was a "detailed
Government record" containing identifying information about the
subject of the investigation), aff'd on rehearing, 380 F.3d 110
(2d Cir. 2004).
In contrast, inter-agency emails - even ones that included
the sender's name, position, department, and phone number - are
not 'similar files' entitled to protection under Exemption 6.
See Families for Freedom, 837 F. Supp. 2d at 301.
interoffice communications that do not contain any detailed
personal information .
can in no way be construed as similar
to personnel or medical files."
see also VoteHemp, . Inc. v.
DEA, 567 F. Supp. 2d I, 15 (D.D.C. 2004)
(redacted names of DEA
employees who authored or received documents are not 'similar
files,' but names and addresses of third parties contained in
documents constitute 'similar files').
Courts determining whether a file is 'similar' to a medical
or personnel file have thus drawn a line between documents that
contain, on the one hand, personal information about (i) third
parties who are not agency personnel or (ii) agency personnel
who are subjects of an investigation, and, on the other hand,
(iii) information pertaining to agency personnel who are going
about their normal work duties.
The former two are 'similar
files' while the latter is not.
This application is consistent
with FOIA's dual objectives of permitting citizens to know "what
their government is up to," Dep't of Justice v. Reporter's Comm.
for Freedom of Press, 489 U.S. 749, 773
same time protecting the privacy of citizens whose personal
information unwittingly turns up in agency documents.
Here, NARA has identified approximately 1,000 responsive
'special access requests,' see Robinson Decl.
19, that "reveal
the identity of the requester and the subject of what the
Def.'s Mem. Law in Supp. Mot. Summ. J. at 5i
see also Robinson Decl. ~ 15.
However, the government has not
provided specific details on the contents of any particular
Regardless, the description the government has
Typically in ForA cases the government is required to provide a Vaughn index
to support its assertion of a ForA exemption, which should "describe with
reasonable specificity the nature of the documents at issue and the
provided is sufficient for the Court to conclude that the
records at issue here are 'similar fi
since they are
s' under Exemption 6
Government records on an individual
which can be identified as applying to that individual."
Post, 456 U.S. at 602.
Because the research requests
contain the names and potentially the contact information of the
researchers who have been designated by the former President and
Vice President, the records that Mr. Cook requests can be
identified as applying to those researchers, who are not NARA
Cf. Families for Freedom, 837 F. Supp. 2d at
In addition, because the researchers are acting on former
President George W. Bush and former Vice President Dick Cheney's
behalf, the records that Mr. Cook requests can be identified as
applying to the former President and Vice President.
records are detailed in the sense that they comprise
approximately 1,000 pages of research requests made pertaining
to the former President and former Vice President's time in
Ultimately, given the Supreme Court's broad
interpretation of the term, the records at issue here are
justification for nondisclosure." See Halpern v. Fed. Bureau of
181 F.3d 279, 290 (2d Cir. 1999); ~aughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973). The government has not done so here, but does not need
to since it is asserting a blanket exemption for all special access requests.
B. Disclosure of Certain Portions of the Requested Documents
Would Constitute a "Clearly Unwarranted Invasion of
Since the Court has determined that the requested records
it must next "balance the public's need for
the information against the individual's privacy interest,"
Wood, 432 F.3d at 86, to determine whether disclosure would
constitute a "clearly unwarranted invasion of personal privacy."
To make this determination, courts
balance the public's interest in disclosure against the
individuals' privacy interests.
Rose, 425 U.S. at 372; Hopkins
v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 86 87 (2d Cir.
The privacy side of the balancing test is broad.
929 at 87.
"It encompasses all interests involving the
individual's control of information concerning his or her
Wood, 432 F.3d at 88 (internal citations omitted).
the burden of demonstrating the existence
of a substantial privacy interest.
Sims v. Central Intelligence
642 F.2d 562, 573 (D.C. Cir. 1980).
On the other side, the "relevant public interest in the
FOIA balancing analysis" is "the extent to which disclosure of
the information sought would 'shed light on an agency's
s statutory duties' or otherwise let citizens
know 'what their government is up to. "'
Dep't of Defense v.
FLRA, 510 U.S. 487, 497 (1994)
(quoting Reporter's Comm. for
Freedom of Press, 489 U.S. at 773).
"That purpose, however, is
not fostered by disclosure of information about private citizens
that is accumulated in various governmental files but that
reveals little or nothing about an agency's own conduct./I
Reporter's Comm. for Freedom of Press, 489 U.S. at 773.
Balancing the public's need
the requested information
against the former official's and their designees' privacy
interests, the Court finds that disclosure here would constitute
a clearly unwarranted invasion of personal privacy.
First, the former President and Vice President's research
designees have an obvious privacy interest their names and
contact information, which evidently appear on the special
Like the documents protected in Washington
Post, 456 U.S. at 600, __~___ , 648 F.2d at 17, and Wood, 432
F.3d at 87 - all of which contained personal identifying
information that was unrelated to agency personnel going about
their work duties -
the documents here fit squarely within
Exemption 6's purview to the extent they contain personal
identifying information about the designees.
Second, the government has presented a number of compelling
arguments demonstrating that former President George W. Bush and
Vice President Cheney have a substantial privacy interest in the
Given that the privacy side of the
balancing test encompasses "all interests involving the
individual's control of information concerning his or her
person," Wood, 432 F.3d at 88 (internal citations omitted), the
Court agrees with the government that President Bush and Vice
President Cheney have a great privacy interest in "not having
the subject about which they think and gather information being
involuntarily broadcast to the general public."
in Supp. Mot. Summ. J. at 12.
Def.'s Mem. Law
It is evident that researchers
have an expectation of confidentiality when they conduct
research at NARA facilities,
Def.'s Mem. Law in Supp.
Mot. Summ. J. at 14-17, and making NARA research requests
accessible through FOIA will inevitably have a chilling effect
on academic research.
And since the PRA is in part designed to
give former Presidents and Vice Presidents a time-limited
monopoly on certain information to encourage the preparation of
their memoirs, their research in particular has important
privacy interests at stake.
The public interest justifications for disclosing the
research requests do not outweigh these privacy interests. 3
Mr . Cook offered the following two public interest justifications for his
FOIA request: (i) "[T]o gain insight into the way in which the former
President and Vice President have chosen to shape the public's perception of
their time in office, and to provide this insight to the public through
online news stories," Compl. ~ 5, and (ii) to "shed light on how NARA is
administering the PRA." Pl.'s Memo. Law in Supp. Mot. Summ. J. at 1. The
latter justification was not pleaded in the Complaint, and, frankly, appears
to be an after-the-fact attempt to shoehorn Plaintiff's request to fit within
the existing legal framework in which "lolfficial information that sheds
light on an agency's performance of its statutory duties falls squarely
American public stands to gain little from knowing what the
former officials are researching during the time period
protected by the PRA.
In contrast, the invasion of privacy on
the former officials and their designees is great.
The government has thus fulfilled its burden of showing a
clearly unwarranted invasion of personal privacy, and the public
interests that Mr. Cook articulates do not outweigh any privacy
interest that the former President and Vice President, and their
designees, have in the requested documents.
For the reasons discussed above, the Plaintiff's Motion for
Summary Judgment is DENIED, and Defendant's Motion for Summary
Judgment is GRANTED.
the Court is directed to
terminate motions number 7 and 17 on the ECF docket, and to
close the case.
UNITED STATES D
New York, New York
January 30, 2013
within [FOIA's] statutory purpose." Dep't of Defense, 510 U.S. at 495 96.
This argument could apply in each and every case - for every decision by NARA
gives insight into "how NARA is administering the PRA." PI.'s Memo. Law in
Supp. Mot. Summ. J. at 1.
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