Opinion
This petition for writ of mandamus presents two issues, both arising under the California Public Records Act (Gov. Code, § 6250 et seq.)
FACTS AND PROCEEDINGS BELOW
California executes condemned inmates pursuant to a three-drug lethal injection protocol (Cal. Code Regs., tit. 15, § 3349 et seq.), which replaced a similar protocol previously found flawed by federal and state courts under the
Shortly before the effective date of the new protocol, September 29, 2010, a death row inmate scheduled to be executed on that date intervened in a federal proceeding challenging the new protocol and sought a stay of execution. The district court issued a conditional stay order directing the inmate to make an election whether to be executed by the three-drug protocol or by injection of sodium thiopental only. The inmate declined to make the election and instead filed a motion in the Ninth Circuit to stay execution. (Morales v. Cate (9th Cir. 2010)
On October 7, 2010, after petitioner learned that CDCR had obtained a new supply of sodium thiopental, it sent the department a PRA request for documents and other materials pertaining to its acquisition and use of the drug, including documents indicating “how much the state paid for the newly acquired sodium thiopental, how payment was made and from what account,” from whom the department most recently acquired the drug, “[a]ll communications, internal or external, regarding efforts by CDCR to obtain sodium thiopental between August 1, 2010, and today,” and “[a]ll documents relating to attempts by the CDCR to acquire sodium thiopental, successful or unsuccessful,” during that period.
CDCR responded that the PRA request would be “partially denied,” explaining that some of the requested materials were “protected by the attorney-client privilege, attorney work product, or were specifically prepared for CDCR’s use in pending litigation” and therefore exempt from disclosure pursuant to specified provisions of the PRA and other statutes, or “would impose an unwarranted invasion of personal privacy, personnel records, or records deemed ‘protected information’ ” by a federal protective order. Citing Times Mirror Co. v. Superior Court (1991)
Though CDCR’s statement that the PRA request would be “partially denied” implied some disclosure would be made, the letter provided no documents or other materials nor indicated whether and when any would be provided. Petitioner therefore commenced a writ proceeding in the San Francisco Superior Court on November 17, 2010. On November 30, after a hearing, the trial court directed CDCR to produce all records requested by petitioner “other than those records [the CDCR] in good faith believes may lawfully be withheld under the PRA.” CDCR was also directed to provide petitioner with a list of all withheld documents and an explanation why it believed such documents exempt from disclosure.
On December 10, 2010, in response to the order to produce, CDCR sent petitioner’s counsel a “PRA Log” listing 1,121 documents, many of which had been withheld or redacted, and indicating which of nine possible reasons explained why a particular document had been withheld or redacted. (See discussion, post, at pp. 83-84.) CDCR disclosed approximately 980 pages of documents. Roughly 200 of these pages consisted solely of documents published by the federal government, including three copies of the Drug Enforcement Administrations Practitioner’s Manual and blank forms relating to federal drug laws. Of the 780 remaining pages, all but 115 pages were redacted, some quite heavily. CDCR withheld approximately 120 documents, which fell into one or more of five categories: “confidential attorney-client communications or attorney work product, and records relating to pending litigation”; “communications with [the] Governor or his staff”; “other documents reflecting [a] deliberative process”; “employee names, [e-mail] addresses and titles”; and “records identifying pharmaceutical companies, other potential sources of sodium thiopental, and their employees.”
On February 1, 2011, the court issued an order authorizing CDCR to withhold three categories of information: (1) “the names of pharmaceutical companies and other businesses and individuals, and the names of these companies’ employees, the CDCR contacted in connection with its efforts to obtain sodium thiopental”; (2) “the names of CDCR and other California state employees who were not decisionmakers in CDCR’s efforts to obtain sodium thiopental”; and (3) “the names of the members of the execution team, including the physician(s) on this team.” The only one of the three
The order did not allow CDCR to withhold internal governmental communications under section 6254, subdivision (7), the Governor’s correspondence exception to disclosure, because, as stated in California First Amendment Coalition v. Superior Court (1998)
The order also declared that “[w]hether CDCR may lawfully redact particular documents as ‘non-responsive’ will depend on a review of those documents to determine whether they are responsive to the [petitioner’s] PRA request. The court will conduct an in camera review of documents or excerpts of documents that CDCR has withheld on the basis that they are non-responsive to the [petitioner’s] PRA request.”
After conducting in camera review, the court determined which of the information CDCR had redacted from documents could be withheld and which had to be produced. Two of the challenged redactions approved by the court deleted information from e-mails between CDCR employees solely on the ground that the deleted information was “not responsive” to petitioner’s PRA request.
Finally, the order addressed the fact that CDCR had inadvertently failed to redact one disclosure of the name of a British pharmaceutical broker it had contacted to arrange for the acquisition of sodium thiopental. Petitioner claimed that although CDCR provided the information unintentionally, petitioner obtained it lawfully and therefore had a right to publish it under the First Amendment. Because it suspected CDCR’s omission was unintentional, and “out of an abundance of caution,” petitioner itself redacted this information from the documents it posted on its Web site pending judicial resolution of its claim. The trial court rejected petitioner’s argument, stating in its order that “CDCR may ‘take back’ information about the identity of the pharmaceutical
The petition before us seeks an order directing respondent superior court to enter an order requiring CDCR to produce (1) information concerning actual or potential sources of sodium thiopental, and (2) unredacted versions of documents that were produced but redacted on the grounds that the deleted information was “not responsive” to petitioner’s PRA request, and directing respondent court to vacate its order that CDCR may “take back” information about the identity of the pharmaceutical distributor that CDCR inadvertently provided in December 2010.
STANDARD OF REVIEW
Our review of a trial court’s rulings on questions arising under the PRA or the First Amendment is de novo; the trial court’s factual determinations will be upheld if supported by substantial evidence. (Times Mirror, supra,
In analyzing the availability of any exemption from disclosure available under the PRA, “we accept the trial court’s express and implied factual determinations if supported by the record, but we undertake the weighing process anew. (Connell v. Superior Court [(1997)] 56 Cal.App.4th [601,] 612 [
Endorsing the proposition “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state” (§ 6250), the Legislature enacted the PRA “ ‘for the purpose of increasing freedom of information by giving members of the public access to information in the possession of public agencies.’ [Citation.] Legislative policy favors disclosure. [Citation.] ‘All public records are subject to disclosure unless the Public Records Act expressly provides otherwise.’
“Despite the strong legislative policy favoring access, ‘the public’s right to disclosure of public records is not absolute. In California, the Act includes two exceptions to the general policy of disclosure of public records: (1) materials expressly exempt from disclosure pursuant to section 6254; and (2) the “catchall exception” of section 6255, which allows a government agency to withhold records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.’ (City of San Jose v. Superior Court (1999)
I.
CDCR May Not Withhold the Names of Pharmaceutical Companies and Others from Which It Sought to Obtain Sodium Thiopental
CDCR justified withholding the names of the entities from which it tried to obtain sodium thiopental on the basis of two exemptions. The first is that set forth in subdivision (k) of section 6254,
CDCR also relies upon the “catch-all exception” of section 6255, claiming it demonstrated that, on the facts of this case, the public interest served by not disclosing the records and other information withheld “clearly outweighs the public interest served by disclosure” (id., subd. (a)) of those materials. “This catchall exemption ‘contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.’ [Citation.] ‘Where the public interest in disclosure of the records is not outweighed by the public interest in nondisclosure, courts will direct the government to disclose the requested information.’ [Citation.]” (County of Santa Clara v. Superior Court, supra,
Both of the exceptions to disclosure relied upon by CDCR impose on California courts a duty to weigh the costs and benefits of disclosure in each particular case, a duty that has no counterpart under the federal Freedom of Information Act (5 U.S.C. § 552) (FOIA), upon which the PRA was in other respects modeled.
The trial court concluded that the public interest was better served by withholding or redacting the information at issue. The chief provision of the February 1, 2011 order, which was drafted by CDCR, states that withholding “the names of pharmaceutical companies and other businesses and individuals .. . that CDCR contacted in connection with its efforts to obtain sodium thiopental ... is warranted to protect privacy and security interests for the reasons identified in CDCR’s supplemental brief.”
Stressing that the PRA was designed to ensure public access to information about the manner in which the government conducts its business, petitioner argues that disclosing the identities of the pharmaceutical companies and others from whom CDCR attempted to obtain sodium thiopental sheds light on the People’s business primarily because it will assist in the detection of favoritism and fraud with respect to the use of state funds, and permit the public to determine whether the company retained by CDCR to import the drug from the United Kingdom had the required federal license.
With regard to the public interest served by withholding the identities of the pharmaceutical companies and others from whom CDCR obtained or attempted to obtain sodium thiopental, CDCR repeatedly emphasizes that the state’s effort to obtain sodium thiopental was a subject of “ ‘impassioned debate,’ ” and suggested that, by releasing the information CDCR voluntarily produced to news organizations, “giving multiple press interviews, and posting all of the records on its website,” petitioner was dangerously fanning the flames. As it pointed out in its trial brief, “there are extremists on both side[s] of the death penalty debate who pose a real threat to the personal safety of those involved in the process.” Although CDCR made these points primarily in support of its argument that the names of certain government employees and persons employed by pharmaceutical companies should not be disclosed, a matter not here at issue, the “ ‘impassioned’ ” nature of the death penalty debate clearly colored the trial court’s attitude about the consequences of disclosure of the identities of the pharmaceutical companies and others from whom CDCR sought to obtain sodium thiopental. For example, at the hearing, in the course of explaining why it concluded “that the interests in preserving the identities of these companies outweighs the public’s interest in needing to know the identities,” the court stated as follows: “What we are dealing with in my opinion is a highly heated issue, one that causes great concern. And I think that not only is there a safety problem potential, there is a potential problem with boycott and business interests. I think it goes beyond
The passionate nature of the death penalty debate also influenced the court’s determination that CDCR may “take back” information revealing the identity of the “pharmaceutical distributor” that CDCR inadvertently provided and petitioner voluntarily redacted from the information it posted on its Web site. In urging the court to issue that ruling, CDCR’s counsel reemphasized that “people have very passionate views on one side or another” of the death penalty debate, and reminded the court of its earlier offer to “show the Court in camera the threat that has been made against one pharmaceutical company, and our interest [in] making sure that that doesn’t happen again.”
We agree that “[f]ew issues in American society have generated as much impassioned debate as the death penalty. At one end of the spectrum, abolitionists condemn the intentional taking of human life by the State as barbaric and profoundly immoral. At the other, proponents see death, even a painful death, as the only just punishment for crimes that inflict unimaginable suffering on victims and their surviving loved ones. Even among those with less absolute positions, there are vigorous arguments about the social, penological, and economic costs and benefits of capital punishment.” (Morales v. Tilton, supra,
Thus we are brought to the dispositive issue in this case. Accepting, as we do, that a court may consider potential threats to security when weighing the public interest in withholding information against that supporting disclosure (see, e.g., Times Mirror, supra,
As previously noted, while we weigh the competing public interest factors independently, we must defer to the trial court’s findings of the pertinent facts where those findings are supported by substantial evidence. (County of Santa Clara v. Superior Court, supra,
Our Supreme Court has on several occasions usefully described the type of evidence that suffices to establish a potential threat to security warranting an exemption from disclosure under the PRA. In Commission on Peace Officer Standards & Training v. Superior Court, supra,
The question in Block, supra,
Times Mirror, supra,
No comparable evidence of potential threat was presented by CDCR or may be found in the record.
The trial court, in its February 1, 2011 order, did not independently state the findings of fact upon which its rulings were based, as would have been the better course, but instead incorporated by reference the “reasons” for each ruling offered by CDCR in a supplemental trial brief. Thus, for example, the order states that withholding the names of pharmaceutical companies and others CDCR contacted in its efforts to obtain sodium thiopental “is warranted to protect the privacy and security interests for the reasons identified in CDCR’s supplemental brief.” (Italics added.) But insofar as it relates to the disclosure of the names of pharmaceutical companies, CDCR’s short supplemental trial brief contains little more than legal arguments relating to the deliberative process privilege and the conditional privilege for confidential official information. All else the brief adds is the assertion that “the State has
The only mention in CDCR’s trial brief of any evidence of a threat to security is the statement that, “[/]/ the Court wishes, CDCR will provide the court with in camera review of documentation showing threats made to one pharmaceutical company due to its role in the sodium thiopental controversy.” (Italics added.) CDCR now faults the trial court and petitioner for not “having sought to view” the “documentation” it offered to but did not submit to the trial court and now offers to submit for our in camera review. Because the agency opposing disclosure bears the burden of proving that an exemption applies, the fault must be placed upon CDCR, not the court or petitioner. Further, as the evidence we consider in reviewing a petition for writ of mandate and/or prohibition excludes evidence not submitted to the trial court (Campbell v. Superior Court, supra,
CDCR also did not provide any evidence in support of its contention that the information sought by petitioner is protected by the “deliberative process privilege” that may be applied in the weighing process specified by section 6255. That privilege protects “mental processes by which a given decision was reached” and “the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated.” (Regents of University of California v. Superior Court (1999)
Neither the record nor CDCR’s briefs explain how revelation of the names of the pharmaceutical companies and others from whom CDCR sought to acquire sodium thiopental would disclose the mental processes of any government employee or the substance of deliberations relating to the formulation of any government policy, or undermine CDCR’s ability to
Under the FOIA, “[f]or materials to be exempt from disclosure under the deliberative process privilege, the agency must show that its decision is both (1) predecisional and (2) deliberative. [Citation.] ‘A document is predecisional if it was “prepared in order to assist an agency decisionmaker in arriving at his decision,” rather than to support a decision already made.’ [Citation.] Accordingly, the decision must be ‘[antecedent to the adoption of the agency policy.’ [Citation.] However, a document cannot be properly be characterized as predecisional ‘if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.’ [Citation.]” (Wilderness Society v. U.S. Dept. of the Interior (D.D.C. 2004)
Nor is there any basis for another factor improperly taken into account by the trial court. At the January 10, 2011 hearing, the court stated “that not only is there a safety problem potential, there is a potential problem with boycott
CDCR’s counsel immediately objected to petitioner’s counsel’s characterization of its position, making clear CDCR was not concerned about an economic boycott. “The concern here,” she said, “is not that potential customers are going to boycott these companies. The concern is that these companies and their staff could be subjected to threats, to their security and safety due to . . . their identities being disclosed for all the world to see.” At that point, counsel reiterated the statement in CDCR’s brief that “we do have one threat against a company that was made that I can show the Court and opposing counsel in camera if you wish.”
The trial court’s statement that “there is a potential problem with boycott and business interests,” which was expressed just a few moments after CDCR explicitly disassociated itself from that idea, must be seen as a rejection of CDCR’s view. The ruling is therefore not just unsupported by any evidence but based, at least in part, on a judicially perceived threat not credited by CDCR.
As the record contains no evidence that disclosure of the names of pharmaceutical companies and others from whom CDCR sought to obtain sodium thiopental would threaten “privacy and security interests,” nor a basis in fact or law upon which to apply either the conditional privilege for confidential information set forth in Evidence Code section 1040, or the “deliberative process privilege,” which the trial court considered in the weighing process mandated by sections 6254 and 6255, the trial court’s conclusion that the public interest favoring withholding of the information sought by petitioner outweighs that favoring disclosure cannot be sustained. Weighing the competing considerations independently, and cognizant of CDCR’s failure to present any competent evidence in support of nondisclosure, we conclude that the public interest served by revealing the names of
The only remaining issue we need address is whether, as the trial court ruled, CDCR may redact portions of documents it discloses that are “non-responsive” to petitioner’s PRA request.
II.
Redactions from Disclosed Documents of Information Assertedly “Nonresponsive” to Petitioner’s PRA Request Were Erroneously Approved Because CDCR Failed to Establish That the Information Was “Nonresponsive”
As earlier noted, the trial court ruled that CDCR redactions of portions of online dialog from two e-mails between CDCR employees was justified because the deleted information was “not responsive” to petitioner’s PRA request. Petitioner maintains information cannot be deleted from a disclosed document on that ground.
According to petitioner, the plain language of the PRA requires production of public records except to the limited extent that portions thereof fall within at least one of the exemptions enumerated in the PRA, so that CDCR must produce the entire record, not merely the portion of the record it deems responsive to the request. This argument rests upon subdivision (a) of section 6253, which provides that “every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” (Italics added.) Petitioner also relies upon Local 211, AFL-CIO, supra,
CDCR initially relied upon several federal judicial interpretations of the FOIA (5 U.S.C. § 552 et seq.), assertedly standing for the proposition that
Because the briefs originally filed by the parties provided no comparative analysis of the FOIA and PRA and little discussion of the pertinent federal case law, we ordered supplemental briefing on whether FOIA contains a provision similar to subdivision (a) of section 6253 and, if so, whether federal judicial interpretations of the federal act should inform the meaning we attribute to analogous provisions of the state act.
Remarkably, in their supplemental briefing, the parties switched positions regarding the relevance of the FOIA and federal case law. Abandoning its previous view that federal authorities were “inapposite,” petitioner now maintains that the FOIA contains a counterpart to section 6253, subdivision (a), and federal judicial interpretations of it convincingly demonstrate that a government agency can redact a portion of a responsive document only if it is statutorily exempt from disclosure. Retracting its earlier position that federal case law persuasively justifies redaction from a disclosed document of information not responsive to a FOIA request, CDCR argues that the federal cases “do not even address the issue.”
We agree with petitioner that the FOIA contains a provision analogous to subdivision (a) of section 6253. However, we also agree with CDCR that federal judicial interpretations of FOIA, though often relevant and illuminating, do not directly address the specific questions this case presents: whether information may be deleted from a disclosed document on the ground it is not responsive to the record request and, if so, whether the government agency must justify its claim that the information is outside the scope of the request.
The provision of FOIA analogous to section 6253, subdivision (a), which appears immediately after descriptions of the nine exemptions from disclosure allowed by the FOIA, states that “[a]ny reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”
Title 5 United States Code section 552(b), part of the FOIA, derives from the principle that information may not be withheld “except as specifically stated” in one of the nine statutory exemptions. (§ 552(d).) Although this provision, which is thought to have been intended to prevent courts from creating new exemptions (see Note, Developments Under the Freedom of Information Act—1974, 1975 Duke L.J. 416, 425), is a dominant feature of the FOIA (see Dept. of Air Force v. Rose (1976)
It is clear that an entire document can be withheld on the ground that it is nonresponsive. (See, e.g., Church of Scientology of Texas, supra,
Petitioner’s argument boils down to the claim that because the numerous FOIA cases it relies upon allow nondisclosure only on the basis of an exemption, that is the only reason information may be withheld. That argument is a non sequitur. Moreover, there are FOIA cases (albeit not many) in which redactions from a disclosed document of information assertedly not responsive to the request have been approved despite the absence of an applicable exemption. (See, e.g., News Group Boston, Inc. v. National Railroad Passenger Corp. (D.Mass. 1992)
For the foregoing reasons, we conclude that subdivision (a) of section 6253 does not bar an agency from redacting nonresponsive information from a disclosed document.
However, we do not believe an agency’s bare conclusion that information is not responsive to a request is any more self-explanatory than its bare conclusion that information is exempt. Therein lies the genuine problem in this case.
Like the PRA, FOIA places on the government agency the burden of affirmatively showing that withheld materials need not be disclosed. However, the unusual nature of the statutory processes renders enforcement of the statutory requirements difficult. As pointed out by the District of Columbia Circuit in its seminal opinion in Vaughn v. Rosen (D.C.Cir. 1973) 157 U.S. App.D.C. 340 [
“The Vaughn decision marked the beginning of a tool (and in some Circuits, a requirement) that is widely referred to as the ‘Vaughn Index’—i.e., a list containing the information claimed as exempt and the corresponding exemption under which it is claimed. The D.C. Circuit later clarified that a
At no time has CDCR provided petitioner any explanation of its determination that the redacted information at issue is outside the scope of petitioner’s PRA request. All CDCR provided petitioner (at the direction of the court) was a two-page letter dated December 10, 2010, transmitting a 44-page “PRA Log” identifying, with “Bates Numbers,” 1,121 documents that were either produced, withheld, or redacted. The documents containing the challenged redactions were all e-mails or e-mail chains, or attachments thereto. The only description of the document was the date it was sent and the names of the CDCR employees who sent and received the message. If a message was sent or received by a person not employed by CDCR, the word “External” was used in lieu of a name or the name was redacted.
The burden the FOIA imposes on government agencies to justify nondisclosure is not limited to instances in which the agency relies on a statutory exemption. A government agency that withholds nonexempt portions of a document because it is inextricably intertwined with exempt portions cannot merely state its conclusion that the exempt and nonexempt portions are not segregable. In Church of Scientology of Texas, supra,
Government agencies are, of course, entitled to a presumption that they have reasonably and in good faith complied with the obligation to disclose responsive information. But that presumption cannot be permitted to obstruct the prodisclosure purposes of the PRA and the FOIA, which create a statutory presumption that all governmental records are available to any person. (See National Archives and Records Admin. v. Favish (2004)
Because we shall remand this case for further proceedings in the trial court, one other matter warrants brief discussion: the propriety of determining CDCR’s compliance with the requirements of the PRA on the
DISPOSITION
Insofar as it authorizes CDCR to withhold documents identifying pharmaceutical companies and other entities from which CDCR sought to obtain sodium thiopental and to redact portions of disclosed documents the agency deems “not responsive” to petitioner’s PRA request, the judgment is reversed.
Lambden, J., and Richman, J., concurred.
Notes
All statutory references are to the Government Code unless otherwise indicated.
This policy of transparency was endorsed by California voters in 2004 when they approved Proposition 59, which amended the state Constitution by specifically acknowledging therein the “right of access to information concerning the conduct of the people’s business,” and providing that “the writings of public agencies and agencies shall be open to public scrutiny.” (Cal. Const., art. I, § 3, subd. (b)(1).) The amendment required the PRA to “be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access” (Cal. Const., art. I, § 3, subd. (b)(2)) though, as has been noted, that rule of construction was applied prior to the amendment. (BRV, Inc. v. Superior Court (2006)
Subdivisions (a) through (d) of section 6254 list 29 categories of materials exempt from disclosure. “These exemptions are permissive, not mandatory. The Act endows the agency with
As stated by the Fourth Circuit, there is no basis for the balancing of equities in the application of the FOIA; “indeed, the very language of the Act seems to preclude its exercise.”
Petitioner was interested in this issue because federal agents had recently seized the State of Georgia’s supply of sodium thiopental after learning that, in violation of the federal Controlled Substances Act (21 U.S.C. § 801 et seq.), the Georgia Department of Corrections appeared to be importing the drug from Britain without a federal license to import controlled substances. (Sack, Executions in Doubt in Fallout Over Drug, N.Y. Times (Mar. 16, 2011) p. A20.)
This statement is inconsistent with the statement in the February 1, 2011 order that the withholding of the names of the pharmaceutical companies and others CDCR contacted “is warranted to protect privacy and security interests identified in CDCR’s supplemental brief.” (Italics added.)
The only evidence CDCR offered to justify withholding information on the basis of confidentiality was a federal protective order dated April 3, 2006, issued by United States District Judge Jeremy Fogel in Morales v. Woodford (N.D.Cal., No. C 06 219 JF RS), which prohibits public disclosure of information identifying any member of the execution team.
CDCR’s invasion of privacy argument applies not just to employees of pharmaceutical companies but to the companies themselves. Despite the facts that corporations lack standing to assert the state constitutional right to privacy (Roberts v. Gulf Oil Corp. (1983)
It bears noting that, unlike the government agency in Michaelis, Montanari & Johnson v. Superior Court, supra,
Our conclusion that the public interest warrants disclosure of the names of pharmaceutical companies and others CDCR contacted in order to obtain sodium thiopental renders it unnecessary for us to address petitioner’s constitutional claim that allowing CDCR to “take back” the identity of the pharmaceutical distributor it inadvertently provided is a prior restraint on speech; i.e., a “gag order” violative of the First Amendment of the United States Constitution and article I, section 2, of the California Constitution.
Elsewhere, the FOIA also states that “[t]o the extent required to prevent a clearly unwarranted invasion of personal privacy [which is the basis of the exemption from disclosure provided under 5 United States Code section 552(b)(6)], an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of [specified] records .... However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made.” (§ 552(a)(2), italics added.)
Miccosukee Tribe of Indians of Florida v. U.S. (11th Cir. 2008)
A statement is “conclusory” for our purposes where no factual support is provided for an essential element of the claimed basis for withholding information. (See Senate of the Commonwealth of Puerto Rico v. Dept. of Justice (D.C. Cir. 1987)
As explained in St. Andrews Park, Inc. v. U.S. Dept. of Army Corps of Engineers (S.D.Fla. 2003)
Obviously, all of the information shown by the PRA Log to have been withheld or redacted, not just that deleted by the challenged redactions, was inadequately justified by a boilerplate conclusion. This appeal does not, however, require us to address the withholding of any information other than that identifying the pharmaceutical companies from which CDCR tried to obtain sodium thiopental and information withheld as not responsive to the PRA request.
“The legal standard is whether the requestor has been specific enough so that a professional employee of the agency, familiar with the general subject area, could reasonably be expected to find the desired documents. The [FOIA] does not demand specific particularity, because the 1974 amendments consciously loosened a former requirement that had been used by agencies to weed out requests on grounds of overbreadth. An agency cannot withhold a record that is reasonably within the scope of the request on grounds that this record had not been specifically named by the requestor. If the requestor is not sure of the nature of agency
The present case illustrates the point. Claims that information sought by a plaintiff is nonresponsive to the request are most commonly made to limit the extent of the search an agency can reasonably be required to make. (See, e.g., Church of Scientology of Texas, supra,