Tuesday, June 3, 2008
Ninth Circuit Denies Request To Release Names of Forest Services Employees Named in Official Report; Cites Privacy Interests
The Ninth Circuit has declined to order the Forest Service to release the names of agency employees who were involved in fighting a fire that killed members of the Service. The employees named in a report investigating the aftermath of the fire were not suspected of wrong-doing, were "low and mid-level" employees, and the risk of intrusion on their privacy outweighed the public benefit.
On January 12, 2004, the Forest Service Employees for Environmental Ethics (“FSEEE”), a self-described public interest watchdog organization, filed a Freedom of Information Act (“FOIA”) request with the Forest Service seeking the release of the Cramer Fire Report. See 5 U.S.C. § 552. The Forest Service complied with the request, but redacted the names of all twenty-three Forest Service employees identified in the Report. The agency cited FOIA Exemption 6, which enables the government to withhold “personnel and medical and similar files” that implicate personal privacy, as justification for the redactions. See id. § 552(b)(6). The FSEEE filed an administrative appeal, which the Forest Service denied.Some time later, the Forest Service announced that it had decided to discipline six employees involved in the incident, but withheld their identities due to privacy concerns. In addition, the identities of several employees named in the Report become known in various ways. First, Incident Commander Hackett waived any right to confidentiality and the Forest Service released a revised Report with all references to Hackett unredacted. In addition, an unredacted copy of the Cramer Fire Report was leaked to the family of one of the deceased firefighters. The Forest Service discovered the leak and disciplined the Forest Service employees responsible. Finally, the OSHA report identified several Forest Service employees who held positions of responsibility during the incident.The FSEEE filed a complaint in the District Court for the District of Oregon seeking an unredacted copy of the Cramer Fire Report. On cross-motions for summary judgment, the district court concluded that Exemption 6 authorized the Forest Service to withhold the identities of the employees named in the Report in the interests of their personal privacy. The district court found that employees subject to disciplinary sanctions as well as those who merely served as cooperating witnesses had privacy interests in avoiding the “embarrassment, shame, stigma, and harassment” that would arise from their public association with the Cramer Fire and further found that the release of such employees’ identities would not materially contribute to the public's understanding of the event. The FSEEE timely filed this appeal.FOIA was enacted to facilitate public access to government records.... As the Supreme Court has explained, the statute's purpose is “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”...Thus, among other things, FOIA requires every federal entity presented with a request for records under the statute to make such records “promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). However, this requirement does not apply if the requested information falls within one of nine exemptions. Id. § 552(b).One such exemption, Exemption 6, provides that government entities may withhold information from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. § 552(b)(6). The district court concluded that the Cramer Fire Report was a “similar file” subject to this exemption and that the disclosure of the identities of the employees named in the report would constitute a “clearly unwarranted” invasion of their privacy. We consider each conclusion in turn.[Determining that the report fit the exclusion, the Court continued].Having determined that the Cramer Fire Report satisfies this threshold test, we next consider whether the disclosure of the employees’ identities would constitute a “clearly unwarranted” invasion of their personal privacy. 5 U.S.C. § 552(b)(6). In conducting this inquiry, we “ ‘balance the public interest in disclosure against the interest Congress intended the [e]xemption to protect.’ ” ....Two guideposts are critical to our analysis. First, “the only relevant ‘public interest’ ” is the extent to which disclosure would “ ‘contribut[e] significantly to public understanding of the operations or activities of the government.’ ”....Second, the reasons why the FSEEE seeks the identities of the Forest Service employees are irrelevant to our inquiry. “ ‘[W]hether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.’ ”....FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large.... Accordingly, we consider the consequences of disclosure of the employees’ identities to the entire public.We begin with the privacy interests of the Forest Service employees. At the outset, we note that while the privacy interests of public officials are “somewhat reduced” when compared to those of private citizens, “individuals do not waive all privacy interests … simply by taking an oath of public office.”...In the past, we have recognized that a government employee's privacy interests may be diminished in cases where information sought under FOIA would likely disclose “official misconduct.”...In addition, we have placed emphasis on the employee's position in her employer's hierarchical structure as “lower level officials … generally have a stronger interest in personal privacy than do senior officials.”...As the district court explained, the twenty-two employees identified in the Cramer Fire Report were “low and mid-level” employees. In addition, although the Forest Service has disciplined six of these employees, none has been accused of official misconduct and the remaining employees were merely cooperating witnesses. Accordingly, we agree with the district court that neither the employees’ status as civil servants nor the Forest Service's disciplinary decisions strip them of their privacy interests under Exemption 6.Second, we consider the district court's conclusion that the employees possessed privacy interests in avoiding the “embarrassment, shame, stigma, and harassment” that would arise from their public association with the incident. The avoidance of harassment is a cognizable privacy interest under Exemption 6. We have previously construed the exemption to protect against the harassment associated with unwanted commercial solicitations....In this case, the potential for harassment that drew the district court's attention was that which would be presented by the media, curious neighbors, and the FSEEE itself. By its own admission, the FSEEE plans to contact the Forest Service employees named in the Report if their identities are disclosed. Moreover, in light of the significant public attention the Cramer Fire received, it is likely that the media and others would join the FSEEE in such pursuit. The fact that the record does not indicate that any of the employees have spoken out in the five years since the incident occurred leads us to conclude that such contacts would be unwanted....Satisfied that privacy interests are at stake here, we turn to the public interests asserted by the FSEEE. We emphasize that “the only relevant public interest” under Exemption 6 is the extent to which the information sought would “ ‘she[d] light on an agency's performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ ” Id. at 497 (quoting Reporters Comm., 489 U.S. at 773). Thus, to compel the disclosure of the Forest Service employees’ identities, such information must “appreciably further” the public's right to monitor the agency's action....The FSEEE contends that disclosure of the employees’ identities will advance several public objectives. First, it argues that disclosure will allow the public to determine whether the Forest Service reassigned employees identified in the Cramer Fire Report to non-firefighter positions as a result of the incident. Second, the FSEEE suggests that disclosure will allow the public to ascertain whether such employees were adequately trained. Finally, the FSEEE contends that the revelation of the employees’ identities will allow the public to “determine whether the Forest Service accurately recounted the incident in the Cramer Fire Report,” to “reconcile inconsistencies,” and to “shed additional light on what happened and how it can be prevented in the future” by, among other things, conducting “interviews with the participants.” To the extent that the FSEEE seeks to conduct its own investigation of the Cramer Fire, we note that four federal agencies have investigated the incident and produced three publicly-available reports. As such, the FSEEE “already ha[s] a substantial amount of the information they seek,” and we will not require the disclosure of the employees’ identities unless the “marginal additional usefulness” of such information is sufficient to overcome the privacy interests at stake. Painting Indus., 26 F.3d at 1486....The public benefit the FSEEE asserts and the privacy interests of the Forest Service employees are equally inseparable. Under the FSEEE's theory, the only way the release of the identities of the Forest Service employees can benefit the public is if the public uses such information to contact the employees directly. As we held in Painting Industry, such use cannot justify the release of the information the FSEEE seeks.