Prudential Locations LLC v. U.S. Department of Housing & Urban Development
2013 U.S. App. LEXIS 20542
| 9th Cir. | 2013Background
- HUD investigated two complaints alleging RESPA violations by Prudential: a 2003 letter accusing kickbacks and a 2008 email alleging RESPA violations; HUD settled the first investigation in 2005 with a $48,000 penalty.
- Prudential FOIAed HUD for the identities of the complainants, and HUD redacted the authors’ identities under Exemption 6, highlighting privacy concerns.
- The district court held the redactions were permissible under Exemption 6 after balancing privacy against public interest.
- The Ninth Circuit previously reversed, requiring additional showing of privacy interests and public interests before redacting identities; on rehearing, the panel again affirmedredaction.
- Prudential filed suit seeking disclosure; HUD submitted an affidavit describing a confidentiality policy for complainants.
- The panel ultimately held that the complainants’ identities were protected by Exemption 6 and affirmed substantial withholding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2003 Letter and 2008 Email are Exemption 6 “similar files.” | Prudential argues similar-files test does not apply to private-complainant identities. | HUD treated the materials as similar files under Exemption 6 to protect privacy. | Yes; assumed they are similar files for Exemption 6 purposes. |
| Whether the authors’ identities implicate a cognizable privacy interest under Exemption 6. | Authors have no nontrivial privacy interest; disclosure would not invade privacy. | Authors have a nontrivial privacy interest due to retaliation, embarrassment, and stigma, given their insider knowledge. | Authors have cognizable privacy interests under Exemption 6. |
| Whether the privacy interests balance against the public interest in disclosure. | Disclosure would illuminate HUD’s handling of RESPA investigations and reliability of sources. | Public interest is limited to government performance; disclosure here would not shed light on HUD’s statutory duties. | Revealing identities would constitute a clearly unwarranted invasion of privacy; public interest does not outweigh privacy. |
| Whether Exemption 7(D) would govern informants and affect the outcome. | Exemption 6 would be redundant if Exemption 7(D) applied; informants should be protected. | If records fall under Exemption 7(D), confidentiality is provided; Exemption 6 analysis not controlling here. | HUD relied on Exemption 6; Exemption 7(D) not invoked, but Exemption 7(D) supports stronger protection of informants; court did not need to determine if 7(D) would apply here. |
Key Cases Cited
- U.S. Dept. of State v. Wash. Post Co., 456 U.S. 595 (1982) (broad Exemption 6 scope; ‘similar files’ interpretation)
- Ray v. United States Department of Justice, 502 U.S. 164 (1991) (cognizable privacy interests; retaliation risk; confidentiality matters)
- Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021 (9th Cir. 2008) (privacy interests in incident reports; potential harassment and stigma)
- Lahr v. Nat’l Transportation Safety Bd., 569 F.3d 964 (9th Cir. 2009) (privacy interest in eyewitness/investigator identities)
- Reporters Comm. for Freedom of the Press v. Department of Justice, 489 U.S. 749 (1989) (public interest standard in FOIA balancing; disclosure of government operations)
- Electronic Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 639 F.3d 876 (9th Cir. 2010) (privacy vs. public interest; informant identities in FOIA)
- Landano v. United States Dept. of Justice, 508 U.S. 165 (1993) (confidential-source requirements under Exemption 7(D))
- Milner v. Department of the Navy, 131 S. Ct. 1259 (2011) (narrow construction of FOIA exemptions; burden on government)