United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
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,
MOTION FOR RECONSIDERATION
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.)
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),
DISCLOSURE UNDER FOIA OF THE NAMES OF EMPLOYEES ACCUSED OF
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 . . . .
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).
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
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 ...