Kearns v. Fed. Aviation Admin.
312 F. Supp. 3d 97
D.C. Cir.2018Background
- Kevin Kearns (FAA employee) sought records about internal complaints against him via FOIA and the Privacy Act in July and November 2015 and again in 2016; FAA released Accountability Board case report and Reports of Investigation (ROIs) but redacted and withheld portions under FOIA Exemptions 5, 6, and 7(C).
- FAA treated the July 2015 request under FOIA, produced a redacted case report; Kearns appealed and then submitted a November 2015 FOIA/Privacy Act request complaining FAA had not processed the July request under the Privacy Act; he did not administratively appeal the FAA’s December 2015 denial of the November request.
- In September 2016 Kearns requested two internal security-investigation files (FOIA 2016-009336); FAA released ROIs with extensive redactions and withheld pages, citing Exemptions 5, 6, and 7(C); Kearns appealed and then sued after exhausting some, but not all, administrative remedies.
- After suit, FAA released additional material and produced all disputed documents for in camera review; parties cross-moved for summary judgment.
- The court reviewed agency declarations, Vaughn indices, and in camera documents and decided: (1) the Privacy Act did not apply because the records were retrieved by case number (not by Kearns’s name/identifier); (2) FAA properly invoked FOIA Exemptions 5 and 6; and (3) reasonably segregable non-exempt material was disclosed or was inextricably intertwined with exempt material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA should have processed July 2015 Accountability Board request under the Privacy Act | Kearns: DOT regs require first-party FOIA requests be processed under Privacy Act if records are in a system of records | FAA: Records were retrieved by case number, not by name; thus not in a Privacy Act system of records | Held: Privacy Act inapplicable — records were retrieved by case number, not by personal identifier; FAA need not process under Privacy Act |
| Exhaustion: whether Kearns may litigate November 2015 FOIA/Privacy Act claims | Kearns: appeals of July request suffice; he constructively exhausted November request | FAA: Kearns did not administratively appeal December 2015 denial; exhaustion is required | Held: November 2015 claims barred for failure to exhaust administrative remedies (both FOIA and Privacy Act) |
| Whether ROIs/attachments are protected by FOIA Exemption 5 (deliberative process/privilege) | Kearns: generally contends Exemption 5 should not apply and relies on Privacy Act for disclosure | FAA: Withheld attorney advice and deliberative materials under Exemption 5 | Held: Exemption 5 properly applied to attorney-client and deliberative materials; summary judgment for FAA on Exemption 5 |
| Whether redactions/withholdings under Exemption 6/7(C) were proper and whether non-exempt material was segregable | Kearns: FAA over-redacted; Privacy Act requires greater disclosure of material pertaining to him | FAA: Withheld names/identifiers and sensitive third-party info; public interest in disclosure is minimal; also asserts Exemption 7(C) | Held: Exemption 6 applies — privacy interests in third-party identities outweigh negligible public interest; Exemption 7(C) need not be decided; agency met segregability obligations (non-exempt material is inextricably intertwined or already disclosed) |
Key Cases Cited
- Dep't of Air Force v. Rose, 425 U.S. 352 (1976) (FOIA’s purpose is public access to government records and agency conduct)
- Reporters Comm. for Freedom of Press v. U.S. Dep't of Justice, 489 U.S. 749 (1989) (public interest under FOIA must shed light on agency performance)
- Henke v. United States Dep't of Commerce, 83 F.3d 1453 (D.C. Cir. 1996) (Privacy Act system-of-records inquiry depends on how records are retrieved)
- Tobey v. NLRB, 40 F.3d 469 (D.C. Cir. 1994) (record must be "about" an individual for Privacy Act to apply)
- McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006) (emphasizing the retrieval-by-identifier limitation in the Privacy Act definition of system of records)
- National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (deliberative process privilege described for Exemption 5)