Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________
)
ADVOCATES FOR HIGHWAY AND )
AUTO SAFETY, )
)
Plaintiff, )
) v. ) Civil Action No. 98-306 (RWR) )
FEDERAL HIGHWAY )
ADMINISTRATION, DEPARTMENT OF )
TRANSPORTATION, )
)
Defendant. )
_____________________________ )
MEMORANDUM OPINION
Plaintiff Advocates for Highway and Auto Safety (“AHAS”), a public interest, safety research, and lobbying organization, challenges the decision of defendant Federal Highway Administration (“FHWA”), a modal administration of the United States Department of Transportation (“DOT”), to withhold access to videotapes requested under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The parties have filed cross-motions for summary judgment. Because the factual record is insufficient to find that either side is entitled to judgment as a matter of law, both motions will be denied.
BACKGROUND
In 1989, FHWA initiated “The Commercial Motor Vehicle Driver Fatigue and Alertness Study” (“the study”) to observe and measure the development of fatigue by Commercial Motor Vehicle (“CMV”) drivers under authentic road conditions. (Def.’s Mem. of P. & A. Supp. Mot. Summ. J. (“Def.’s Mem.”) at 2.) The purposes of the study were to research CMV driver fatigue and to inform a review of FHWA’s regulations on hours of service for CMV drivers. (Def.’s Mem. at 2; Def.’s Reply Mem. Supp. Summ. J. (“Def.’s Reply”) at 3.)
As a part of the study, video cameras were mounted in the trucks of certain qualified CMV drivers. (Def.’s Mot. Summ. J. (“Def.’s Mot.”), Decl. of Paul L. Brennan (“Brennan Decl.”) ¶ 5.) These cameras simultaneously recorded the driver’s face and the road extending out before him, with the results captured on videotape in a split-screen format. (Id.) The study collected over 4,000 hours of such “driver face” information. (Id. ¶ 8.) Several of the videotapes revealed drowsy drivers, some of whom appeared to be drifting off the road. (Id. ¶ 14.) However, no accidents occurred during the study. (Id.)
The subjects of the study were eighty male CMV drivers employed by three motor carriers. (Id. ¶ 3.) Every subject signed a form which read:
Each driver’s results will be used only for the scientific goals of this research. Your name will not be used. Your results will be identified in the data base [sic] by a code number to maintain your privacy.
(Id.) The tapes contain no information personally identifying the drivers other than the images of their faces. (Id. ¶ 8.) It is impossible, for purposes of AHAS’s FOIA request, to redact the identifying features of the subject drivers because the informational value of the videotapes lies in the appearance of these features. (Id. ¶ 14.)
The study ran from 1989 to 1996. (Pl.’s Mot. Summ. J. (“Pl.’s Mot.”), Pl.’s Statement of Facts (“Pl.’s Facts”) ¶ 1; Def.’s Opp. to Pl.’s Mot. Summ. J., Def.’s Resp. to Pl.’s Statement of Facts (“Def.’s Resp. Facts”) ¶ 1.) The Essex Corporation of Goleta, California collected the videotape data in 1993 under a contract with FHWA. (Id.) The study cost an estimated $4.5 million. (Pl.’s Mem. of P. & A. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 5; Def.’s Mem. at 2.)
AHAS filed a FOIA request for access to 199 hours of driver face videotapes. (Pl.’s Facts ¶ 10; Def.’s Mot., Def.’s Statement of Facts (“Def.’s Facts”) ¶ 1.) FHWA denied the request, citing FOIA Exemption 6 and stating that release of the information would constitute an invasion of the privacy of the drivers who participated in the study. (Pl.’s Facts ¶ 10; Def.’s Facts ¶ 2.) AHAS appealed FHWA’s decision through the appropriate DOT administrative procedures. [1] (Def.’s Facts ¶ 3). FHWA denied AHAS’s administrative appeal. (Def.’s Facts ¶ 7.) AHAS filed this action, and both sides have moved for summary judgment.
DISCUSSION
Summary judgment is appropriate where the record shows that
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A party seeking summary judgment must provide the
district court with a factual record sufficient to demonstrate
the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett,
AHAS originally asserted that this second request was at issue in this case. Both parties now agree that there is no dispute regarding any non-videotape material. (Pl.’s Reply to Def.’s Mem. P. & A. Opp’n Pl.’s Mot. Summ. J. and in Further Supp. Pl.’s Mot. Summ. J. at 8.) Accordingly, this opinion is limited to the 199 hours of videotape which constitute AHAS’s initial request.
FOIA facilitates open access to federal government documents
by members of the public. Dep’t of Air Force v. Rose, 425 U.S.
352, 360-61 (1976); see also U.S. Dep’t of Defense v. Fed. Labor
Relations Bd.,
Congress recognized, however, that not all government
information should be made available for disclosure under FOIA.
Alliance for the Wild Rockies,
Specifically, FOIA Exemption 6 permits a government agency, such
as FHWA, to withhold “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 primary purpose of Exemption 6 is “to protect individuals
from the injury and embarrassment that can result from the
unnecessary disclosure of personal information.” United States
Dep’t of State v. Washington Post Co.,
Both parties agree that the videos at issue are “similar
files” within the meaning of Exemption 6. Consequently, the
issue is whether release of the videos would “constitute a
clearly unwarranted invasion of personal privacy.” Such a
determination is made by “weigh[ing] the privacy interest in non-
disclosure against the public interest in the release of the
records in order to determine whether, on balance, the disclosure
would work a clearly unwarranted invasion of personal privacy.”
Lepelletier v. FDIC,
I. PUBLIC INTEREST
“The only relevant public interest in the FOIA balancing
analysis is the extent to which disclosure of the information
sought would she[d] light on an agency’s performance of its
statutory duties or otherwise let citizens know what their
government is up to.” Lepelletier,
AHAS’s public interest analysis remains viable despite the passage of some time since the conclusion of the study and the initiation of the instant action. The study retains importance in the field and has informed successive DOT rulemakings on hours of service of drivers. See Final Rule, Hours of Service of Drivers, 73 Fed. Reg. 69567-02, 69575 (November 19, 2008) (stating “the Driver Fatigue and Alertness Study (DFAS) (Wylie et al., 1996) was the first to identify the impact of circadian rhythm on CMV driver alertness, and almost every fatigue study after the DFAS has used those results or found similar results, to the point that the impact of circadian rhythm on driver performance is now a generally accepted principle”). DFAS was “a landmark study of driver fatigue” and “was particularly important in changing the methodology by which commercial driver research would be conducted in the future, introducing the use of instrumented vehicles and technology for collecting data in a field setting.” Id.; see also Notice of proposed rulemaking, 75 Fed. Reg. 82170-01, 82173 (December 29, 2010) (reviewing history of CMV hours of service regulations and noting study’s completion as part of turn to new “science-based” rules).
Releasing the videotapes will reveal information about the
conduct of FHWA, a government agency. When an agency relies on
information in formulating a rule, there is a strong public
interest in disclosing the underlying information, even if it
relates to particular individuals. Alliance for the Wild
Rockies,
Releasing the videos will cast light on FHWA’s rulemaking process.
Moreover, releasing the videotapes will reveal information
as to government expenditures on a project of substantial scale
and expense. When information sheds light on the inner workings
of a government agency, there is a public interest in its
release. Washington Post Co. v. United States Dep’t of Agric.,
Finally, some controversy arose as to the methodology FHWA
used in processing the data contained on the driver videotapes.
Allegations of distortion and misrepresentation of data by
government agencies heighten the public’s interest in release of
that data. Lurie v. Dep’t of the Army,
Responsibility v. United States Secret Serv.,
In Lurie,
AHAS also submits evidence that determining whether a particular driver appears “drowsy” is an inherently subjective task, subject to potential bias and inconsistencies, and that FHWA did not take appropriate measures to ensure objectivity in its results. FHWA argues that the methods by which those who observed the videotapes were trained has been disclosed and that there is no reason to believe their observations were inaccurate. While the allegations of misrepresentation here are by no means as serious as were those in Lurie, AHAS raises a legitimate question as to the manner in which relevant data were extracted from the videos. The public has an interest in the accuracy of this method.
In sum, there is a public interest in releasing the videotapes. The public has interests in examining the information upon which government rules are based, in seeing how and why public funds are spent, and in examining the methods by which the government produces data, especially when there are questions about the validity or reliability of that methodology. II. PRIVACY INTEREST
This case presents the novel question of whether a FOIA
Exemption 6 privacy interest exists in the unidentified
videotaped image of an individual’s face. Privacy encompasses
the ability of the individual to control information concerning
his or her person. Reporters Comm.,
The D.C. Circuit has observed that the information recorded through the capture of a person’s voice is distinct and cumulative to the information contained in the words themselves. New York Times Co. v. Nat’l Aeronautics and Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990). In making this observation, the court contrasted silently reading a Verdi opera with hearing the opera performed. Id. Similarly, the coding associated with the videotaped images of drivers’ faces cannot convey all of the information contained in the videos. FHWA extracted from the videos its own determination whether a driver was awake, asleep or in a stage of drowsiness while driving. However, no driver, within or without this study, is drowsy in exactly the same way. The videos may contain indicia of alertness that FHWA did not deem relevant. In addition, the videos may reveal facial expressions and cues bearing on other mental and physical states while driving. These sorts of personal details, captured up close and over a prolonged period of time, are not generally available in the ordinary course of daily life. To that extent, the drivers have a privacy interest in their videotaped images from the study.
In general, disclosing a videotaped image would be a de minimis invasion of privacy if the subject’s identity were unknown or not readily ascertainable. However, the severity of the potential invasion also turns upon the unique facts of a case. FHWA argues that the invasion of privacy occasioned by release of the videotapes would be severe because (1) the drivers were promised confidentiality; (2) public shame could result to those drivers who appear to be drowsy at the wheel; (3) the drivers could be subject to further harassment; and (4) releasing such data would chill the availability of drivers for future studies. AHAS responds that (1) promises of confidentiality do not automatically trump disclosure; (2) there is no public shame in appearing drowsy at the wheel; (3) there is no serious threat of future harassment to any driver; and (4) any chill on future studies is of no weight in determining whether to release important public information.
The invasion of privacy resulting from releasing the videotapes would be more than de minimis . However, it is not obvious that, as a matter of law, this invasion would be so significant as to outweigh the legitimate public interest in disclosure. The drivers’ privacy interest is bolstered by the privacy guarantee contained in the form each driver signed. Assurances of confidentiality are to be accorded some weight in assessing privacy interests under FOIA Exemption 6, but such promises do not necessarily prohibit disclosure. Ray, 502 U.S. at 177. In this case, each driver was promised that his “name will not be used” and that the results of the study would be identified only “by code number to maintain your privacy.” The promise in this case that the driver’s “name will not be used” is not highly relevant, because both parties agree that the names of the drivers are not directly identifiable from the videotapes. However, the promise that the results of the study will be identified “by code number to maintain your privacy” presents a closer question.
Under a narrow view, the purpose of this phrase was to prevent any person from determining which items of data in the study correspond to any particular driver. Releasing the videotapes along with corresponding code numbers could violate the privacy pledge under this view, but mere release of the videotapes, with all code number information redacted, might not. This latter method of release would not reveal which drivers were considered awake or drowsy for purposes of the study. Under a broad view, the purpose of this phrase was to prevent any person from viewing the videotapes other than those persons necessary to extract the relevant information and record it in a coded, anonymous manner. Releasing the videotapes could directly violate the privacy pledge under this view by subjecting the drivers’ images to public view.
The privacy protected by the form lies between the two extremes. The form states that a coded number will be used to protect the privacy of each driver. Because the coded numbers are used to disassociate study data from particular drivers, such a dissociation appears to have been the primary purpose of the privacy guarantee. However, because the vague phrase “your privacy” might well be interpreted by a lay study subject to cover disclosure of his videotaped image in any manner, the form’s promise of privacy enhances the privacy interest of the drivers. The evidence does not show that this interest is so overwhelming as to settle the matter in FHWA’s favor as a matter of law.
In addition, a driver’s privacy interest is enhanced only by
a minimal degree based on the possibility that he may appear
drowsy at the wheel. The record reflects that while no crashes
or accidents occurred during the study, some drivers appeared
drowsy at the wheel. The record does not reflect that any
conduct recorded on the videotapes could provide the basis for
civil liability or professional penalties. Further, even the
“mere threat of media attention does not suffice to draw the
protective cloak of Exemption 6 over information that happens to
be newsworthy.” Washington Post Co.,
FHWA alleges that drivers who are shown to be drowsy or drifting at the wheel might face difficulty in obtaining future employment. While this point is intuitively convincing, it does not deserve great weight in this analysis. FHWA has not presented any evidence that the drivers’ current or future employment would be at risk. Consequently, the only remaining risk to the drivers is that they may experience shame or embarrassment from appearing sleepy at the wheel. This risk is minimal for three reasons: (1) these data were collected in 1993, and while present embarrassment might certainly result from disclosure of past drowsiness, the great passage of time could serve to dissipate the risk of such shame; (2) fatigue by CMV drivers is a common occurrence, as the purpose of the study indicates; and (3) the released videotapes would not be accompanied by coded data that showed when the government considered the driver to be drowsy, and therefore any judgment as to the driver’s condition would be a subjective evaluation made by the viewer. Accordingly, the risk of embarrassment only slightly enhances the drivers’ privacy interests.
Moreover, there is no evidence of a serious threat of
harassment to any participant driver. The threat that disclosure
would pose to individual privacy interests must be real, not
speculative. Carter v. United States Dep’t of Commerce, 830
F.2d 388, 391 (D.C. Cir. 1987); Rose,
The degree to which disclosure will cause an interference
with personal privacy is determined by the likelihood that the
effect will ever come to pass, not by the number of links in the
causal chain. Horner,
Finally, FHWA has failed to provide evidence that releasing
the videotapes will chill future studies. The belief that
disclosure might impair the government’s ability to acquire
similar information in the future carries no weight under FOIA
Exemption 6, which focuses on individual privacy interests.
Washington Post Co.,
In sum, the drivers’ privacy interests in the videotapes are more than de minimis and sufficient to withstand summary judgment for AHAS, but insufficient to warrant summary judgment for FHWA. These interests are decidedly enhanced by the promise of confidentiality made to the subject drivers and somewhat enhanced by the risk of public shame at appearing drowsy at the wheel. There is no evidence that these interests are enhanced by speculative claims of future harassment or by the chill on future government studies.
CONCLUSION
Both parties’ motions for summary judgment will be denied. FHWA’s decision to withhold, under FOIA Exemption 6, the videotapes requested by AHAS, is assessed by weighing the public interest in disclosure against the subject drivers’ privacy interests in non-disclosure. A public interest exists in releasing the requested videotapes because it will reveal information about (1) FHWA’s rulemaking process; (2) FHWA’s expenditure of public funds; and (3) FHWA’s methodology, where legitimate questions exist as to its validity and reliability. The subject drivers have a privacy interest in non-disclosure, because (1) releasing the videotapes may violate confidentiality promised to the drivers upon their participation in the study; and (2) subject drivers shown to be drowsy could be subject to potential shame and difficulty in obtaining future employment. The drivers’ privacy interest is not enhanced by merely speculative risks of future harassment or legally irrelevant concerns about the chill to future studies. However, the drivers’ privacy interests neither clearly outweigh nor are clearly outweighed by, the public’s interests in releasing the videotapes. Thus, neither motion for summary judgment is supported by sufficient facts in the record so far to entitle the movant to judgment as a matter of law, and both motions will be denied without prejudice to refiling them with specific additional evidence reflecting the weight of the public interest, particularly the present relevance of the study’s methodology, and the weight of the privacy interest, particularly the scope of the confidentiality promised and the likelihood of threats of harassment or liability to the drivers who took part in the study.
SIGNED this 13 th day of October, 2011. __________/s/_______________ RICHARD W. ROBERTS United States District Judge
Notes
[1] AHAS filed a second FOIA request, this time seeking access to the entire database collected for the study. (Pl.’s Facts ¶ 10; Def.’s Facts ¶ 4.) FHWA responded by making copies of all