Christopher W. MADEL, Plaintiff-Appellant v. UNITED STATES DEPARTMENT OF JUSTICE; Drug Enforcement Administration, Defendants-Appellees.
No. 14-2210
United States Court of Appeals, Eighth Circuit
April 21, 2015
Submitted: Feb. 10, 2015.
It‘s true that a television actress was murdered in 1989 by a stalker whose private investigator had lawfully obtained her unlisted address from the California Department of Motor Vehicles. The murder was a catalyst of the Driver‘s Privacy Protection Act. Taylor v. Acxiom Corp., supra, 612 F.3d at 336 and n. 9; Pichler v. UNITE, 542 F.3d 380, 400 (3d Cir.2008) (dissenting opinion). But personal information on a parking ticket placed face down under the windshield wiper on the driver‘s side does not facilitate stalking. A stalker who had chanced on his intended victim‘s vehicle would follow her home rather than relying on her to park illegally and on the police to write a parking ticket rich in personal information. The concern that triggered the Driver‘s Privacy Protection Act was with stalkers who went to motor vehicle bureaus to obtain the home addresses of their intended victims, more than thirty states having made such information available to members of the public for a small fee, as a means of enhancing state revenues. That would be a clear example of where the balance between law enforcement and privacy favored privacy. Senne presents no evidence that anyone has ever taken a parking ticket face down under the driver‘s windshield wiper in Palatine and turned it over and read and used any of the personal information on the ticket. Nor does he contest the Village‘s evidence that there has never been a stalking or any other crime (such as identity theft), or tort (such as invasion of privacy), resulting from personal information placed on traffic tickets issued by Palatine police. Had the Village been making the information on parking tickets publicly available over the Internet, or had it placed on the tickets highly sensitive information such as the owner‘s social security number, the risk of a nontrivial invasion of personal privacy from the disclosure would be much greater and probably outweigh the benefits to law enforcement. The Village has never done that.
AFFIRMED.
Pamela A. Marentette, Asst. U.S. Atty., Minneapolis, MN, argued (Andrew M. Luger, U.S. Atty., on the brief), for appellee.
Before BYE, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Christopher W. Madel sued the Department of Justice and Drug Enforcement Administration for a response to two Freedom of Information Act requests. DEA withheld some documents as confidential commercial information. The district court granted summary judgment to DEA, finding it produced all non-exempt information. The court denied declaratory and injunctive relief and attorney fees. Madel appeals. Having jurisdiction under
In November 2012 and February 2013, Madel submitted FOIA requests to DEA seeking information on oxycodone transactions in Georgia by five private companies: Cardinal Health, Inc., CVS Caremark, Walgreen Co., AmerisourceBergen Corp., and McKesson Corp.1 See
In May 2013, DEA requested processing fees, which Madel paid. In October, after contacting DEA and receiving no response, Madel sued. In December, DEA produced ARCOS reports 2, 3, 4, 5, and 7. In January 2014, DEA, citing Exemption 4‘s protection of confidential commercial information, informed Madel it was withholding five documents: ARCOS report 1 and four spreadsheets of oxycodone sales, one each for Cardinal Health, Walgreens, AmerisourceBergen, and McKesson. See
The district court granted summary judgment to DEA, finding the withheld documents exempt under Exemption 4. It dismissed Madel‘s request for declaratory and injunctive relief as moot and denied attorney fees.
II.
Madel argues that DEA did not justify withholding the five documents under Exemption 4, and that DEA failed to meet FOIA‘s segregability requirement. The district court held that DEA produced all non-exempt responsive information. This court reviews de novo a grant of summary judgment. Missouri Coal. for Env‘t Found. v. U.S. Army Corps of Eng‘rs, 542 F.3d 1204, 1209 (8th Cir.2008). Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Madel disputes the application of Exemption 4. Once an agency record is requested under FOIA, “the government must provide the information unless it determines that a specific exemption applies.” In re DOJ, 999 F.2d 1302, 1305 (8th Cir.1993) (en banc). See
To claim an exemption, an agency must “provide affidavits which justify the claimed exclusion of each document by correlating the purpose for exemption with the actual portion of the document which is alleged to be exempt.” Miller v. U.S. Dep‘t of State, 779 F.2d 1378, 1387 (8th Cir.1985). While agency affidavits receive “substantial weight,” they must include more than “barren assertions” that a document is exempt. Id. (internal quotation marks omitted). See also Missouri Coal., 542 F.3d at 1210 (“Boilerplate or conclusory affidavits, standing alone, are insufficient to show that no genuine issue of fact exists as to the applicability of a FOIA exemption.“); Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C.Cir.1996) (“The affidavits will not suffice if the agency‘s claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. If the affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.” (internal quotation marks omitted)).
As noted, DEA withheld five documents: report 1 and one spreadsheet of oxycodone-distribution data per company. Companies are legally required to submit the information in these documents. Madel does not dispute that the information is “commercial or financial” and “obtained from a person.” He argues it is not “confidential.” DEA counters that release “is likely to cause substantial harm to the competitive position of the person from whom the information was obtained.”
Supporting its claim of substantial competitive harm, DEA submitted a declaration from Katherine L. Myrick, Chief of DEA‘s FOIA/Privacy Act Unit. The Declaration says report 1 contains information traceable to individual manufacturers and distributors, such as market shares in specific geographic areas, estimates of inventories, and sales. The Declaration notes that the information could identify individual registrants and “[i]f competitors were to obtain such data, they would be able to use it to target specific markets, forecast potential business of new locations, or to gain market share in existing locations.” This could cause harm to “potentially a large number of companies that distribute to retail registrants.”
The four companies, informed of Madel‘s request, objected to the spreadsheets’ disclosure. See
DEA shows substantial competitive harm is likely. DEA does not make “barren assertions” that the documents are exempt, but links each document to identifiable competitive harms. See Miller, 779 F.2d at 1387. Madel has offered no reason or evidence to disbelieve DEA‘s claims of harm. He does not argue that DEA acted in bad faith, or that he cannot meaningfully contest the exemption‘s application. Madel relies on an out-of-circuit district court case to demonstrate that DEA‘s explanation is conclusory, but the agency there failed to respond to the requester‘s specific rebuttal of its assertions of competitive harm. See Biles v. Dep‘t of Health & Human Servs., 931 F.Supp.2d 211, 224 (D.D.C.2013) (noting requester‘s arguments that data is stale; much of it is publicly available; and there is no competitive “harm” because all companies must disclose the same degree of data). Madel makes no such rebuttal of DEA‘s explanation. The district court did not err in holding that information in the withheld documents is subject to Exemption 4.
B.
DEA withheld the five documents in their entirety, claiming no reasonably segregable non-exempt information. Madel argues that the district court failed to make a finding on segregability, and claims that the Declaration does not justify DEA‘s segregability determination.
An agency may not automatically withhold an entire document when some information is exempt, but rather must provide “[a]ny reasonably segregable portion.” Missouri Coal., 542 F.3d at 1212, quoting
The district court erred by failing to make an express finding on segregability. DEA argues that, because segregability was briefed and argued below, there is a finding on segregability in the court‘s conclusion: “[T]he statements in that Declaration establish grounds for nondisclosure
DEA urges this court to determine segregability in the first instance, relying on Juarez v. DOJ, 518 F.3d 54, 60-61 (D.C.Cir.2008), which finds a remand for an express finding unnecessary when an appellate court reviews the record and determines no information is segregable. Even assuming this court adopted the out-of-circuit approach, DEA, relying solely on the Declaration, does not show “with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.” Id. at 61. Although DEA expresses the concern that any connection between individual buyers and sellers would lead to substantial competitive harm, this is not supported by the Declaration. The Declaration does not address how disclosure of the data from, say, 2007, leads to the proffered substantial competitive harms of a competitor “target[ing] specific markets” or “forecast[ing] potential business of new locations.” The claims of harm are undermined by DEA‘s public release of four charts showing total dosage units sold per month by Cardinal Health to four named buyers in Florida over four years. The Declaration also does not address whether disclosing only distributions over 100,000 or 200,000 units per year, as Madel offered, would have the same competitive harm as disclosing all the data. The case is remanded to the district court for an express finding on segregability.
Given this court‘s decision on segregability, the denials of declaratory and injunctive relief and attorney fees are also reversed and remanded.
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The judgment is reversed, and the case remanded for proceedings consistent with this opinion.