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American Civil Liberties Union of Arizona v. United States Department of Homeland Security Office For Civil Rights and Civil Liberties

United States District Court, D. Arizona

March 22, 2018

American Liberties Union of Arizona, et al., Plaintiffs,
v.
United States Department of Homeland Security Office for Civil Rights and Civil Liberties, et al., Defendants.

          ORDER

          Honorable John J. Tuchi United States District Judge

         At issue is Defendants' Motion for Reconsideration (Doc. 77, Mot.) of this Court's August 14, 2017 Order (Doc. 76, Order). The Court permitted Plaintiffs to respond (Doc. 83, Resp.), and Defendants filed a Notice of Supplemental Authority (Doc. 82). In the Motion, Defendants ask the Court to reconsider one aspect of its ruling on Defendants' Motion for Summary Judgment (Doc. 56, Defs.' MSJ) and Plaintiffs' Cross-Motion for Summary Judgment (Doc. 62, Pls.' MSJ).

         I. MOTION FOR RECONSIDERATION

         Motions for reconsideration should be granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F.Supp. 1342, 1351 (D. Ariz. 1995). A motion for reconsideration is appropriate where the district court “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Here, Defendants contend that the Court clearly erred by suggesting disclosure of the names of certain employees of the Department of Homeland Security (“DHS”) under a protective order in response to Plaintiffs' Freedom of Information Act (“FOIA”) request. (Mot. at 2.)

         Among their requests for information under FOIA in this case, Plaintiffs seek the names of DHS employees accused of mistreating unaccompanied children (“UAC”) in DHS custody. The Court agrees that it erred (see Order at 26) when it stated that a protective order would be appropriate under FOIA to keep disclosure of the employees' personal information private. See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (“There is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination.”). Now, with the benefit of the evidence and more extensive briefing submitted by the parties in conjunction with Defendants' Motion, the Court will more fully examine whether the employee names are exempt from disclosure under Exemptions 6 and/or 7(C) of FOIA. See 5 U.S.C. §§ 552(b)(6), (b)(7)(C).

         II. DISCLOSURE UNDER FOIA OF THE NAMES OF EMPLOYEES ACCUSED OF MISCONDUCT

         FOIA requires that federal agencies make public records promptly available to citizens when they request them, in order “to ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act provides for nine specific exemptions under which the government may refuse disclosure. See 5 U.S.C. § 552(b). Here, Defendants rely on Exemptions 6 and 7(C) to withhold the requested names. Those Exemptions provide that the following may be held from disclosure:

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy . . . .

Id.

         When evaluating whether a government agency can properly invoke Exemptions 6 and/or 7(C), the Court uses a three-step test for balancing the privacy rights of the individuals against the public interest in disclosure. Tuffly v. U.S. Dep't of Homeland Sec., 870 F.3d 1086, 1093 (9th Cir. 2017). First, the Court evaluates the personal privacy interest to determine whether the “disclosure implicates a personal privacy interest that is nontrivial or . . . more than [] de minimis.” Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 693 (9th Cir. 2012), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016). Second, if a nontrivial privacy interest is at stake, the requester has the burden to show “that the public interest sought to be advanced is a significant one . . . and that the information is likely to advance that interest.” Favish, 541 U.S. at 172. If the requester fails to show a significant public interest, then a nontrivial invasion of privacy is unwarranted and the information is properly withheld under the exemption. Id. Finally, if both a nontrivial privacy interest and a significant public interest are present, the Court must balance the two. Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009).

         Defendants bear the burden of establishing that the balance tips in favor of privacy, thereby justifying the withholding of requested information under the asserted exemptions. 5 U.S.C. § 551(a)(4)(B). The balancing required for Exemptions 6 and 7(C) mirror one another. The “only distinction between the balancing tests applied in the two exemptions is the ‘magnitude of the public interest' required” to overcome the privacy interests at stake. Tuffly, 870 F.3d at 1092 n.5 (internal quotations omitted) (quoting Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 n.2 (9th Cir. 2008)). Exemption 7(C) is “more protective of privacy” than Exemption 6, because Exemption 7(C) only requires that an invasion of privacy “could reasonably be expected, ” while Exemption 6 requires that the invasion of privacy be “clearly unwarranted.” 5 U.S.C. §§ 552(b)(6), (b)(7)(C); U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 n.6 (1994). Cases that apply either Exemptions 6 or 7(C) are relevant to the balancing analysis “insofar as they identify cognizable public and private interests.” Forest Serv. Emps., 524 F.3d at 1025 n.2. Because resolution of Defendants' Motion does not turn on whether Exemption 6 or 7(C) is applied-indeed, the parties do not argue which Exemption should apply in the present Motion and Response-the Court will analyze them together except where indicated.

         A. Privacy Interest

         The privacy interests at stake must be “some nontrivial privacy interest in nondisclosure.” Cameranesi v. U.S. Dep't of Def., 856 F.3d 626, 637 (9th Cir. 2017) (quoting Dep't of Def., 510 U.S. at 501). It is enough to demonstrate that the interest is more than de minimus. Tuffly, 870 F.3d at 1092. The interest is not a “cramped notion, ” Yonemoto, 686 F.3d at 693, but rather, is broad and encompasses a range of “concerns relating to an ‘individual's control of information concerning his or her person.'” Lahr, 569 F.3d at 974 (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989)). A nontrivial privacy interest is implicated when the disclosure opens the person to possible embarrassment, harassment, or risk of mistreatment. Cameranesi, 856 F.3d at 638. Public officials “do not waive all privacy interests in information relating to them simply by taking an oath of public office, ” but public officials' privacy interests are “somewhat reduced.” Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223 (9th Circ. 2001). Further, officers “retain an interest in ...


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