648 F.3d 768
9th Cir.2011Background
- FOIA case involving HUD's redactions of two informants' identifying information in documents related to RESPA investigations against Prudential Locations LLC.
- Two documents at issue: a 2003 letter alleging kickbacks and a 2008 email alleging ongoing violations, both from informants who sought anonymity or not specified.
- HUD withheld names under Exemption 6, arguing disclosure would invade privacy; Prudential challenged redactions.
- District court granted summary judgment for HUD; Prudential appealed seeking unredacted copies.
- Court granted summary judgment vacating and remanding to develop an adequate factual basis for Exemption 6 balancing; addressed potential use of other exemptions.
- Court acknowledged FOIA's strong presumption of disclosure and discussed privacy interests, risks of retaliation, and public-privacy balancing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 6 applies given privacy interests. | Prudential argues redactions insufficient evidence of nontrivial privacy interests. | HUD asserts privacy interests exist and outweigh public disclosure needs. | Remanded to develop adequate factual basis; not enough to weigh privacy interests. |
| Whether the district court had adequate factual basis for Exemption 6 ruling. | District court lacked sufficient facts to assess privacy invasion likelihood. | HUD provided declarations; sufficient to grant summary judgment. | Remand required for district court to obtain admissible facts. |
| What standard governs the privacy-invasion likelihood under Exemption 6. | Standard should support disclosure given FOIA presumptions. | Need substantial probability of invasion before withholding. | Adopts substantial probability standard; remand to develop facts. |
| Should the court consider alternative exemptions or tools to protect informants? | Exemption 6 adequate; no need for other exemptions. | Other exemptions (7(C), 7(D)) could apply; avoid chilling effects. | Court notes potential use of Exemptions 7(C) or 7(D) and remand for adequate basis. |
Key Cases Cited
- Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009) (exemption balancing and privacy considerations in FOIA)
- Ray, U.S. Dept. of State v. Ray, 502 U.S. 164 (Supreme Court 1991) (privacy interests and public interest in FOIA Exemption 6)
- Forest Serv. Emps. for Environmental Ethics v. U.S. Forest Serv., 524 F.3d 1021 (9th Cir. 2008) (privacy interests in Exemption 6/7(C) balancing)
- Milner v. Dep't of Navy, 131 S. Ct. 1259 (Supreme Court 2011) (presumption of disclosure and narrow interpretation of exemptions)
- Favish, Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (Supreme Court 2004) (high threshold for invasion of privacy in Exemption 7(C) context)