PRUDENTIAL LOCATIONS LLC, a Hawaii limited liability company, Plaintiff-Appellant,
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee.
Argued and Submitted Feb. 15, 2011.
Reargued and Resubmitted March 9, 2012.
[Copyrighted Material Omitted]
Jason H. Kim (argued), Schneider Wallace Cottrell Brayton Konecky, LLP, San Francisco, CA; Paul Alston, Alston Hunt Floyd & Ing, Honolulu, HI, for Plaintiff-Appellant.
Steve Frank (argued), United States Department of Justice, Civil Division, Washington, D.C., for Defendant-Appellee.
Appeal from the United States District Court for the District of Hawai'i, Susan Oki Mollway, Chief District Judge, Presiding. D.C. No. 1:09-cv-00128-SOM-KSC.
Before: A. WALLACE TASHIMA, WILLIAM A. FLETCHER, and MARSHA S. BERZON, Circuit Judges.
The question in this case is whether the identity of a person complaining to a federal agency about a violation of law is protected from disclosure under Exemption 6 of the Freedom of Information Act (" FOIA" ). Plaintiff Prudential Locations (" Prudential" ) filed a FOIA request with the U.S. Department of Housing and Urban Development (" HUD" ), asking it to disclose the names of the individuals who had complained to HUD that Prudential had violated the Real Estate Settlement Procedures Act (" RESPA" ). (For convenience, we will use the plural even though it is possible that the two complaints were written by the same person.) HUD invoked Exemption 6 to justify redacting the documents to conceal the authors' identities. Exemption 6 covers " personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The district court held that Exemption 6 justifies the agency's decision to redact identifying information. Prudential Locations LLC v. U.S. Dep't of Housing & Urban Dev., 646 F.Supp.2d 1221 (D.Hawai'i 2009). We affirm.
HUD is the agency responsible for administering and enforcing RESPA, 12 U.S.C. §§ 2601-2617. RESPA prohibits referral fees for real estate settlement services: " No person shall give and no person shall accept any fee, kickback, or thing of value [for referring] business incident to or a part of a real estate settlement service involving a federally related mortgage loan." Id. § 2607(a). HUD initiated two investigations of Prudential when it received communications, sent five years apart, alleging that Prudential gave referral awards in violation of RESPA.
In the first communication, the author wrote a one-page letter dated July 7, 2003, (the " 2003 Letter" ) alleging that " Prudential Locations Real Estate Salespersons get monetary kickbacks ($ $,$ $ $) for the amount of business that is referred to Wells Fargo." The author explained that " Wells Fargo" was shorthand for Wells Fargo Home Mortgage of Hawaii, a joint venture formed by Wells Fargo Bank and Prudential Locations. The author attached an article published on January 26, 2003, in the Honolulu Star-Bulletin, quoting it as saying that " agents from firms ... throughout Hawaii ... were eligible to win [a] Mercedes by referring at least $1 million in loans to Wells Fargo in 2002." The author asked, " Is it a violation of RESPA for real estate agents to receive compensation for steering business to a specific Lender?" The author stated that he or she anticipated that HUD would provide a written reply. The author neither asked for anonymity nor authorized HUD to reveal his or her identity.
In response to the letter, HUD opened an investigation. HUD discovered, consistent with the letter's allegations, that Prudential rewarded agents with " prizes" in return for referring over $1 million of business to Wells Fargo. The prizes included a Mercedes-Benz lease and vacation packages to Thailand and Las Vegas. HUD closed the investigation in 2005 after entering into a settlement agreement under which Prudential agreed to stop violating RESPA and to pay a penalty of $48,000.
In the second communication, the author wrote HUD an email dated January 19, 2008 (the " 2008 Email" ). The author, who was aware of the $48,000 penalty imposed under the 2005 settlement agreement, wrote that Prudential was " blatantly violating RESPA laws again." The author alleged that Prudential was " charging an extra fee for an in house transaction coordinator EVERY TIME to agents that do not use ($75 extra fee) Wells Fargo (affiliated company of Prudential Locations LLC) and ($50 extra fee) Island Title (affiliated company of Prudential Locations LLC)." The author wrote that an agent from Prudential gave the author this information and " expressed concern that his company was violating RESPA laws again." The author of the 2008 Email asked HUD to keep his or her name anonymous.
In response to the 2008 Email, HUD opened a second investigation. In March 2009, it concluded that the evidence did not substantiate the email's allegations and closed the investigation.
In June 2008, while the second investigation was underway, Prudential made a FOIA request for HUD's records of the two investigations. Prudential specifically
asked HUD to produce information " to show the identity of all parties who provided information to HUD relating to the initiation" of both HUD investigations. In March 2009, HUD produced roughly four-hundred pages of responsive documents.
HUD produced the 2003 Letter and the 2008 Email in response to the FOIA request, but it redacted information in both documents in order to conceal the authors' identities. HUD redacted the letterhead and the signature line of the 2003 Letter. HUD produced a redacted version of the 2008 Email as part of its initial response, and it turned over a less redacted version of the email during the course of this litigation. In the less redacted version, HUD redacted the " From" field in the email header, the first sentence, and the author's contact information. HUD also redacted language after the phrase " but I would like to remain anonymous." The length of this redaction suggests that it contained ten or eleven average-length words. Its location in the email suggested that the redacted language explained why the author desired anonymity.
In a letter to Prudential's attorney, HUD justified the redactions under Exemption 6. HUD explained that " [r]elease of this information would constitute an unwarranted invasion of personal privacy" outweighing any " interest of the general public in reviewing these portions of government documents."
Shortly thereafter, Prudential brought suit in federal district court specifically seeking disclosure of the identities of the authors of the two communications. Prudential moved for summary judgment. HUD filed a cross-motion for summary judgment that included an affidavit from Ivy Jackson, HUD's Director of the Office of RESPA and Interstate Land Sales. Jackson described HUD's general policy of concealing the identity of any complainant " whether or not the complainant affirmatively authorized the release [of his or her name]." However, it appears that HUD may release the complainant's name under certain circumstances if the " person has specifically authorized release of his or her name." She explained that HUD relies on " industry competitors and insiders" as sources of information to detect RESPA violations. She feared that industry insiders would be " vulnerable to retaliation, i.e. loss of employment, loss of business and legal action," if HUD were forced to disclose their identities. Jackson stated that when she speaks before industry groups, she reminds industry insiders of HUD's policy of confidentiality.
The district court entered summary judgment in favor of HUD, holding that the redacted information was protected from disclosure under Exemption 6. Prudential Locations, 646 F.Supp.2d at 1228. The court balanced the privacy interest of the individuals whose names were redacted against the public's interest in disclosure. Id. at 1226. On the privacy-interest side, the court found that complainants reporting RESPA violations could be subject to retaliation. Id. at 1226-27. On the public-interest side, the court found that disclosure of the complainants' identities would not reveal significant and otherwise unavailable information about HUD's activities. Id. at 1227. The court also found that Prudential provided no evidence indicating that the identity of complainants would reveal any misconduct or bias on the part of HUD. Id.
After initial argument in this case, we reversed the district court, holding that HUD could not redact identifying information under Exemption 6, absent an additional showing concerning the identity of the complainants and the privacy interests that were likely to be infringed.
Prudential Locations LLC v. U.S. Dep't of Housing & Urban Dev., 648 F.3d 768 (9th Cir.2011). On the government's petition for panel rehearing, we ordered the case reargued. We now affirm.
B. Standard of Review
" [A] two-step standard of review applies to summary judgment in FOIA cases. The court first determines under a de novo standard whether an adequate factual basis exists to support the district court's decisions. If an adequate factual basis exists, then the district court's conclusions of fact are reviewed for clear error, while legal rulings, including its decision that a particular exemption applies, are reviewed de novo. " Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir.2008) (internal citations omitted).
FOIA grants access to government archives for public dissemination of " ‘ official information long shielded unnecessarily from public view.’ " Milner v. Dep't of Navy,
__ U.S. __, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). Under FOIA, an agency must make government records available to the public upon a properly made request. 5 U.S.C. § 552(a)(3)(A). However, the agency need not disclose documents or information falling within any of nine statutory exemptions. Id. § 552(b)(1)-(9). The agency bears the burden of justifying the withholding of information under an exemption. Id. § 552(a)(4)(B).
Exemption 6 allows an agency to withhold " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). We ask two questions in deciding whether an agency has properly withheld records or information under Exemption 6. First, we ask whether the document qualifies under the heading of " personnel and medical files and similar files." Id. Second, we ask whether production of the document, or information contained therein, " would constitute a clearly unwarranted invasion of personal privacy." Id.; see, e.g., Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 639 F.3d 876, 886 (9th Cir.2010); Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1024 (9th Cir.2008).
1. "Personnel and Medical Files and Similar Files"
Exemption 6 was " ‘ intended to cover detailed Government records on an individual which can be identified as applying to that individual.’ " U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982) (quoting H.R.Rep. No. 89-1497, at 11, reprinted in 1966 U.S.C.C.A.N. 2418, 2428). " Information unrelated to any particular person presumably would not satisfy the threshold test." Id. at 602 n. 4, 102 S.Ct. 1957. The Supreme Court has concluded that the phrase " similar files" in Exemption 6 has a " broad, rather than a narrow, meaning." Id. at 600, 102 S.Ct. 1957. " Similar files" include files containing citizenship information on specific individuals, id. at 602, 102 S.Ct. 1957; reports on interviews with Haitian nationals involuntarily returned to Haiti, U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); a report analyzing an agency's response to a wildfire, Forest Serv. Emps., 524 F.3d at 1024; and an " Excelsior list" of names and addresses of employees eligible to vote in a union representation election, Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1273 (9th Cir.1984).
The district court in this case held that the 2003 Letter and the 2008 Email are " similar files" within the meaning of Exemption 6. Prudential Locations, 646 F.Supp.2d at 1226. We are skeptical that a communication sent by an individual to a federal enforcement agency complaining about illegal business activity is sufficiently " similar" to a " personnel or medical ... file" of that individual for the communication to qualify under Exemption 6. We recognize that the district court's holding has out-of-circuit support. See, e.g., Lakin Law Firm, P.C. v. Fed. Trade Comm'n, 352 F.3d 1122 (7th Cir.2003) (upholding redaction under Exemption 6 of identities of individuals who complained to the FTC about illegal business activity); Strout v. U.S. Parole Comm'n, 40 F.3d 136 (6th Cir.1994) (upholding redaction under Exemption 6 of identity of individuals who wrote to the Parole Commission opposing Strout's parole). Indeed, our own circuit's decision in Forest Service Employees, upholding redaction of employees' names from a report on a forest fire prepared by the Forest Service, provides some support for the district court's holding. See 524 F.3d at 1024.
Prudential has not contested on appeal the holding that the 2003 Letter and 2008 Email are " similar files" under Exemption 6. We therefore assume without deciding that the 2003 Letter and 2008 Email are " similar files" within the meaning of Exemption 6. See Elec. Frontier Found., 639 F.3d at 886 (analyzing under Exemption 6 redaction of identities of lobbyists from communications sent by the lobbyists to federal agencies in attempts to influence legislation; noting that " this may be a closer question than the government describes" ; and assuming without deciding that the communications were " similar files" in the absence of objection by the requesting party).
2. "Clearly Unwarranted Invasion of Personal Privacy"
The second requirement under Exemption 6 is that disclosure of the information " would constitute a clearly unwarranted invasion of personal privacy." § 552(b)(6). To answer this question, " we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure." Elec. Frontier Found., 639 F.3d at 886; see also Ray, 502 U.S. at 175, 112 S.Ct. 541.
(i) Cognizable Personal Privacy Interest
To withhold information under Exemption 6, an agency must show that " some nontrivial privacy interest" is at stake. U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 501, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). If only a trivial privacy interest is implicated, then Exemption 6 cannot apply. But if there is a " nontrivial privacy interest," then the agency must balance the individual's interest in personal privacy against the public's interest in disclosure. See Forest Serv. Emps., 524 F.3d at 1027 (" ‘ [S]ome nontrivial privacy interest’ is sufficient to justify the withholding of information under Exemption 6 unless the public interest in disclosure is sufficient to outweigh it." (emphasis omitted)); Multi Ag Media LLC v. Dep't of Agric., 515 F.3d 1224, 1229-30 (D.C.Cir.2008) (once a court finds " anything greater than a de minimis privacy interest," it must then address " whether the public interest in disclosure outweighs the individual privacy concerns" (internal quotation marks omitted)).
A broad range of personal privacy interests are cognizable under FOIA, including under Exemption 6. The Court has emphatically rejected a " cramped notion of personal privacy."
U.S. Dept. of Justice v. Reporters Comm. for Freedom of Press,
489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Individuals not only have an obvious privacy interest in being free from retaliation, harassment, embarrassment, or stigma. Ray, 502 U.S. at 176-77, 112 S.Ct. 541; Forest Serv. Emps., 524 F.3d at 1026. They also have a privacy interest in simply " keeping personal facts away from the public eye." Reporters Comm., 489 U.S. at 769, 109 S.Ct. 1468. " ...