Charles LUDLAM, et al., Plaintiffs, v. UNITED STATES PEACE CORPS, Defendant.
Case No. 11-1570 (EGS).
United States District Court, District of Columbia.
March 29, 2013.
court—through a single paragraph of analysis—voided provisions that completely prohibited the compensation of lobbyists through contingent fee arrangements because the provisions did not distinguish between contingent arrangements that were properly motivated, as against those that were improperly motivated. Id. at 393, 632 P.2d 300. As the Government rightly points out, the restrictions invalidated in Greely are plainly distinguishable from the challenged provisions of Circular 230, which do not impose a blanket prohibition on contingent fee arrangements in proceedings before the IRS. Rather, the applicable regulations permit the use of contingency fees in proceedings where the Service first take[s] an initial action such as challenging a taxpayer position, commencing an examination, or making an assessment of penalties or interest. (Defs. Mem. at 2-3; see also Compl. at ¶ 40). Thus, Circular 230 prohibits contingent compensation only in certain circumstances—as relevant here, in connection with ordinary refund claims. Moreover, the Government adopted the revised regulations to discourage tax return positions that exploit the audit selection process, (Defs. Mem. at 3), which reflects an effort on the Governments part to separate properly motivated contingent arrangements from those that are improperly motivated, which was precisely the concern identified in Greely. Thus, the Court finds the Plaintiffs reliance on that decision unavailing, and to the extent its holding is not distinguishable from the instant matter, the Court disagrees with its (cursory) analysis for the reasons stated herein.
Accordingly, because the Court finds that Plaintiffs fail to state a cognizable claim for relief under the Petition Clause of the First Amendment, Count I of Plaintiffs Complaint will be dismissed under
CONCLUSION
For the foregoing reasons, the Court concludes that Mr. Ryan lacks Article III standing to pursue his claim under the Due Process Claim and therefore DISMISSES Count II of Plaintiffs Complaint for lack of jurisdiction. In addition, the Court find that Plaintiffs fail to state a claim under the Petition Clause and therefore DISMISSES Count I pursuant to
Marian L. Borum, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
This Freedom of Information Act (FOIA) case is before the Court on defendants the United States Peace Corps Motion to Dismiss or, in the Alternative, for Summary Judgment. For the reasons explained below, the Motion to Dismiss will be GRANTED and the Motion for Summary Judgment will be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Plaintiffs Charles Ludlam and Paula Hirschoff are former Peace Corps volunteers. Both plaintiffs have been advocates for strengthening and revitalizing the Peace Corps; they have served on the boards of non-profit organizations supporting returned Peace Corps volunteers and testified before Congress on behalf of current Peace Corps volunteers. Compl. ¶¶ 3-5.
On April 15, 2009, plaintiffs submitted a
On May 27, 2009, plaintiffs filed an appeal of the Peace Corps decisions regarding the document production format and costs. Id. ¶ 29. While the appeal was pending, plaintiffs were approached by a Peace Corps staffer who informed plaintiffs that the country-by-country breakout of the 2008 survey was available, in electronic format. Id. ¶ 31. The staffer emailed the information to plaintiffs, who then posted it on the PeaceCorpsWiki website. Id. ¶ 31. On June 24, 2009, the Acting Director of the Peace Corps Office of Management emailed Ludlam, noted that the information he sought was available on PeaceCorpsWiki, and concluded it doesnt appear necessary for [the Peace Corps] to continue to staff your request for these. Id. ¶ 33.
On December 16, 2010, Ludlam submitted a second
Mr. Ludlam appealed the decision on March 18, 2011. In his appeal, Mr. Ludlam narrowed his request to omit Volunteer responses to open-ended questions in the AVS. Id. ¶ 49. On April 15, 2011, Earl Yates, Associate Director for Management at the Peace Corps, released to Mr. Ludlam the 2009 and 2010 results on a regional level. See Miller Decl. ¶ 17. However, Yates denied his appeal for country-by-country and program-by-program responses, citing the same Exemptions. Id. ¶ 12, 17.
Plaintiffs filed this action on August 31, 2011, challenging only the denial of the December 16, 2010
II. STANDARD OF REVIEW
A. Motion to Dismiss
Exhaustion of administrative remedies in
B. Summary Judgment
Pursuant to
C. FOIA
FOIAs strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. Dep‘t of State v. Ray, 502 U.S. 164, 173, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991) (citation omitted). The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). If an agencys affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agencys bad faith, then summary judgment is warranted on the basis of the affidavit alone. ACLU v. Dep‘t of the Defense, 628 F.3d 612, 619 (D.C. Cir. 2011); see id. (an agencys justification for invoking a
III. DISCUSSION
A. Dismissal as to Plaintiff Hirschoff
The Peace Corps argues that plaintiff Paula Hirschoff must be dismissed from this case because she did not file the December 16, 2010
The parties also do not dispute that the remaining plaintiff, Charles Ludlam, has properly exhausted his administrative remedies. Accordingly, the dismissal of Ms. Hirschoff does not impact the Courts ability to consider the case on its merits.
B. Waiver
As a threshold matter, plaintiff argues that the Peace Corps has waived the right to invoke Exemptions 5 and 6 regarding the withheld responses from the country-by-country and program-by-program breakouts of the 2009 and 2010 AVS. Plaintiff claims waiver because (1) the agency previously disclosed the responses from substantially similar questions in the 2008 Volunteer survey, and (2) Peace Corps leaders are encouraged to, and do, share the 2009 and 2010 AVS responses with other with other Peace Corps staff. Pls. Oppn at 31-34. Defendant, by contrast, contends that the plaintiff cannot demonstrate that the responses to the 2009 and 2010 AVS surveys match the responses to the 2008 surveys; therefore, the Peace Corps has not waived any
In this Circuit, the public-domain doctrine has emerged as the dominant paradigm for evaluating the waiver of a potential
In this case, plaintiffs waiver argument fails because he has not shown that the withheld responses match any information already in the public domain. He argues only that the questions contained in the 2009 and 2010 AVS are substantially identical to the questions in the 2008 survey. However, as defendant notes, it is the responses to the surveys that plaintiff seeks, not the questions. Def.s Reply at 25. Considering that the responses to the later surveys were provided by a different group of volunteers, regarding their experiences during a different time period, the responses will not be identical to those provided in 2008. Certainly, the plaintiff has not demonstrated, with specificity, that the previous disclosure duplicates withheld information.
The fact that the Peace Corps encouraged readers of the surveys to share information with other staff cannot salvage plaintiffs claim of waiver. While agency leaders may have disseminated the survey results within the agency, the plaintiff has not shown that Peace Corps officials were authorized to, or did, release 2009 or 2010 survey results to the general public outside the agency. See Muslim Advocates v. U.S. Dep‘t of Justice, 833 F. Supp. 2d 92, 100 (D.D.C. 2011).
Accordingly, the Court finds that the Peace Corps has not waived its right to invoke Exemptions 5 and 6 with respect to the withheld material.
C. Exemption 6
Exemption 6 covers personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The Peace Corps argues that Exemption 6 applies to three types of questions in the 2009 and 2010 AVS. The Court will address them in turn.
The Peace Corps withheld complete or partial answers to several questions regarding staff performance. First, it withheld the answers to questions F2 in the 2009 AVS survey and F3 in the 2010 survey.2 These questions are identical, and ask How satisfied are you with the health care received from your PCMO(s) [Peace Corps Medical Officer]? The Volunteers can provide six possible responses (Not at all, Minimally, Adequately, Considerably, Exceptionally and Not Used).
The Peace Corps also withheld partial answers to identical questions F3 (2009 AVS) and F4 (2010 AVS). These questions ask How satisfied are you with the following support provided by in-country Peace Corps staff? and permitted the following responses: Not at all, Minimally, Adequately, Considerably, Exceptionally and Not Used. The questions were then broken out into separate sub-questions for ten different staff positions/functions. Of these ten, the Peace Corps withheld responses as to four: Medical, Safety and Security, Site Selection and Preparation, and Technical Skills.
Partial responses to identical questions F6 (2009 AVS) and F6 (2010 AVS) were also withheld. These questions ask How would you rate your interaction with post staff? and permitted the responses of Adequate or Not Adequate. The questions were broken into separate sub-questions as to four topics: responsiveness to my issues, informative content, My comfort level discussing issues, and Adequacy of Visits/Visits to your site. They were further broken out into separate subquestions for eight different staff positions. Of these eight, the Peace Corps withheld responses for six: Country Director, Program Training Officer/Sub-Regional Program Training Coordinator, Associate Peace Corps Director/Program Manager, PCMO, Safety and Security Coordinator, Training Manager.
Finally, questions F7 (2009 AVS) and F9 (2010 AVS) ask To what extent is your Country Director aware of Volunteer issues and concerns through interactions with Volunteers? and permits responses of Not at all, Minimally, Adequately, Considerably, Completely/Exceptionally.
2. Second Type of Question: Insensitive and Discriminatory Conduct/Harassment
The Peace Corps partially withheld the answer to question G2 (AVS 2010). This question asks whether Volunteers [H]ave encountered insensitive comments or behavior toward you based on your race, ethnicity, age, gender, or sexual orientation from any of the following sources? Volunteers could respond Yes, No, or Not Applicable. The question is separated into four categories of people who might have engaged in such conduct. The Peace Corps withheld responses for two categories: Host/Homestay Family and Community members.
Responses to question G3 (AVS 2010) were also partially withheld. This question asks Volunteers to report any discrimination/harassment they have encountered. The question identifies several types of discrimination: age, anti-American, disability, gender, racial/color, religious, sexual orientation, sexual (physical) and sexual (verbal). Volunteers could respond with the number of times they had (i) encoun-tered
3. Third Type of Question: Crime
The Peace Corps partially withheld responses to question G4 (2010 AVS), which asks whether Volunteers were victims of any of several different types of crime committed by several different categories of individuals. Volunteers could respond by identifying the number of times they had (i) experienced that type of crime, and (ii) reported it to the Peace Corps. The Peace Corps has withheld the responses to three of the crimes listed—sexual assault, rape, and attempted rape—for two categories of individuals—counterpart, supervisor or coworker (not Peace Corps) or host country family member.
4. Analysis
a. Only the Questions Rating Staff Performance Satisfy The Threshold Requirement for Exemption 6
Exemption 6 allows an agency to withhold personal identifying information, such as place of birth, date of birth ... employment history, and comparable data, if disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Dep‘t of State v. Washington Post Co., 456 U.S. 595, 600, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982). By contrast, [[I]nformation unrelated to any particular person presumably would not satisfy the threshold test. Id. at 602 n. 4, 102 S. Ct. 1957. Specifically, Exemption 6 does not apply if there is no substantial likelihood that any concrete facts about a particular individual could be inferred as a result of the release of the withheld information. Horner, 879 F.2d at 878; see also Dep‘t of Air Force v. Rose, 425 U.S. at 380 n. 19, 96 S. Ct. 1592 (Exemption 6 was directed at threats to privacy interests more palpable than mere possibilities); Arieff v. Department of the Navy, 712 F.2d 1462, 1468 (D.C. Cir. 1983) (Exemption 6 only applicable where the release of information leads to likelihood of actual identification; release of information leading to increased speculation about individuals is not subject to withholding).
In this case, the Peace Corps has met the threshold with respect to the first category of questions withheld—those related to staff ratings. The agency has explained that it withheld responses that rate specific staff positions, and at the country or project level, these positions are typically filled by one person or a few at most. Benjamin Decl. ¶ 14. The plaintiff has provided no information to the contrary. Accordingly, there is more than a mere possibility that employment ratings data could be linked to a particular individual if this information were released. Moreover, employees have a substantial privacy interest in their employment ratings data. See, e.g., Fed‘l Labor Relations Authority v. Dep‘t of Commerce, 962 F.2d 1055, 1059 (D.C. Cir. 1992) (employee ratings containing either favorable or derogatory information is personal information subject to Exemption 6); Ripskis, 746 F.2d at 1 (same).3
Ms. Miller states that there were 7671 Volunteers in 2009 and 8655 in 2010, that the country-by-country and program-by-program numbers are significantly smaller, and then concludes it would be possible for anyone familiar with the Peace Corps ... to determine the identities of individuals ... identified as sources of improper behavior or comments, or pointed to as criminals. Miller Decl. ¶ 33. This is insufficient; as discussed supra, the mere possibility of a threat to privacy interest is not sufficient to justify withholding under Exemption 6. Rose, 425 U.S. at 380 n. 19, 96 S. Ct. 1592. Ms. Benjamins declaration is also insufficient. She states that disclosure of information regarding discrimination, harassment and crimes on the smaller country or project basis,
[M]ay easily identify or be perceived in the host country as identifying specific host family/homestay family members, specific host country citizen members of the community where the Volunteer lives and works, and counterparts/co-workers (such as co-teachers, co-workers in a health clinic, or other host country colleagues with whom a Volunteer works), or management (such as school principals, health clinic directors, agricultural cooperative managers, and other non Peace Corps management personnel).
Benjamin Decl. ¶ 15. The bare assertion that a specific individual may easily [be] identifi[ed], unsupported by any information such as the number of Volunteers in any country or program, the typical size of the host families with whom Volunteers stay, or the size of the communities or workplaces in which Volunteers are placed, is simply not enough for the agency to meet its burden to demonstrate that the exemption applies. See, e.g., Gardels v. Cent. Intelligence Agency, 689 F.2d 1100, 1104-05 (D.C. Cir. 1982) (agency affidavits must be reasonably specific, not merely conclusory, to show that the documents are exempt from disclosure). Accordingly, because the Peace Corps has provided no reasonable basis to determine that any particular individuals will be identified by disclosure of the AVS questions regarding discrimination/harassment or crime victimization, the agencys invocation of Exemption 6 fails.
b. Weighing the Privacy Interest in Nondisclosure Against the Public Interest in the Release of Records
Once an agency has established a substantial privacy interest is at stake, the Court must then weigh the privacy interest in nondisclosure against the public interest in the release of records in order to determine whether, on balance, the disclo-sure
In the
In this case, plaintiff claims the requested information will serve the public interest by revealing information about the safety of and the support given to Peace Corps Volunteers, mandated by Congress in the Kate Puzey Peace Corps Volunteer Protection Act of 2011 (Volunteer Protection Act), which amended the Peace Corps Act,
Plaintiff argues that this legislation demonstrates the public interest in the safety and well-being of the Volunteers, [which] depend[s], in large part, on the effectiveness of and professionalism of the Peace Corps staff. Oppn at 19. The government, for its part, does not acknowledge the Kate Puzey Peace Corps Volunteer Protection Act of 2011. Rather, it claims that the information in the staff ratings data would not contribute to the publics understanding of the Peace Corps operations or activities. Reply at 15. Even if there is public interest in the information, the government claims that interest is satisfied by the disclosure of the information aggregated at the global or regional level. Id. at 13-14.
Upon consideration, the Court concludes that there is a significant public interest in disclosure of the responses to questions regarding staff performance. The 2011 Amendments to the Peace Corps Act make clear that the Agencys mission includes
The Court further concludes that there is a significant public interest disclosure of this information on a country-by-country basis. As plaintiff explains, Volunteers are invited to serve in specific countries, where they are overseen by a Peace Corps Country Director who is the executive leader of the Peace Corps for that country. Oppn at 11. Moreover, plaintiff contends, it was the safety of Volunteers, and the inadequate support some victims of violence received from the Peace Corps and the host country in which they serve, which prompted the media attention that led to the Volunteer Protection Act of 2011. Id. at 18. Finally, as set forth above, Congress has recognized the importance of having access to this information on a country by country basis. See
Through the new reporting requirements, the amendments to the Act provide that much of the information plaintiff seeks will be publically available in future years. However, the information obtained in the 2009 and 2010 AVS predates the new requirements. Accordingly, without the data from the AVS, the public would have more difficulty determining whether the Peace Corps has been, and is, carrying out its mission to protect and support its Volunteers. See Multi Ag Media LLC v. Dep‘t of Agric., 515 F.3d 1224, 1231-32 (D.C. Cir. 2008) (finding a strong public interest in disclosing data the Department of Agriculture collects to monitor its program administration).
Having found greater than a de minimis privacy interest and a significant public interest in disclosure of the country-by-country staff rating questions in the AVS, the Court must now balance the two to determine whether the agency has met its burden to show that the substantial interest in personal privacy is not outweighed by the public interest in disclosure ... [U]nless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail and the agency may not withhold the files under Exemption 6. Id. at 1232 (citations omitted).
In this case, the Peace Corps employees privacy interests are modest. As set forth above, plaintiff seeks survey responses to multiple choice questions regarding Volunteer experience with staff performance. The survey responses are not official performance reviews or ratings, nor do they contain names or any other personal details regarding any staff members. By contrast, there is a strong public interest in monitoring the Peace Corps protection of Volunteers safety and security, which must necessarily include effective
D. Exemption 5
Exemption 5 allows an agency to withhold inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.
First, the Peace Corps withheld the response to question F1 (2009 and 2010 AVS), which are identical in both surveys.4 It asks volunteers how prepared the host country people were for their arrival when they first arrived at their host community, and permits responses of not at all, minimally/poorly, adequately, considerably/well and exceptionally/very well.
Responses to question J1 (2009 and 2010 AVS), also identical in both surveys, were partially withheld. The question asks how personally rewarding Volunteers found their Peace Corps service, and provides five separate categories for Overall Peace Corps Service, Community Involvement, Experience with Other Volunteers, Work with Counterparts/Community Partner, and Experience with other Host Country Nationals/Individuals. Volunteers could respond not at all, minimally, adequately, considerably, and exceptionally. Of the five categories, the Peace Corps withheld responses as to one: work with counterparts/community partner.
Finally, the Peace Corps withheld the responses to identical questions F6 (2009 AVS) and F5 (2010 AVS). These questions ask Volunteers whether their host country would benefit the most if the Peace Corps program was discontinued, reduced, refocused/redesigned, maintained as it, or expanded. Volunteers could choose one of these options.
The deliberative process privilege covers documents reflecting advisory opinions, recommendations and deliberation comprising part of a process by which governmental decisions and policies are formulated. Dep‘t of the Interior v. Klamath Water Users Protective Ass‘n, 532 U.S. 1, 8, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001) (citations omitted). The purpose of this privilege is to prevent injury to the quality of agency decisions, by protecting from disclosure confidential, pre-decisional advice and counsel on matters of policy. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975). In order for the deliberative process privilege to apply, the material must be both predecisional and deliberative. Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010) (citation omitted). A document is predecisional if it was generated before the agency action was finally adopted, and deliberative if it reflects the give-and-take of the consultative process. Id. at 874 (citation omitted).
The Peace Corps asserts that each of the survey responses withheld is predecisional because (1) Peace Corps officials rely heavily on these responses in the continuing process of formulating agency
The Court agrees with plaintiff. Although the government need not pinpoint a specific decision or policy in connection with which predecisional material is prepared, the deliberative process must be capable of some definition. Compare Access Reports v. DOJ, 926 F.2d 1192, 1196 (D.C. Cir. 1991) (finding an agencys study of how to shepherd a
In Vaughn, the agency asserted that reports appraising the performance of agency supervisors were protected under the deliberative process privilege because they were part of an ongoing [] process in which the agency evaluates and changes its personnel policies, regulations and standards. 523 F.2d at 1143. The Circuit rejected the argument, finding that the agency could not classify its ongoing, continual task of appraising, evaluating and making recommendations for improvement as a seamless process for the purposes of the deliberative process privilege, since such a definition places virtually no limit on the privilege. Id. at 1145. To allow such an expansive definition of the term process under Exemption 5, the Court reasoned, would swallow up a substantial part of the administrative process, and virtually foreclose all public knowledge regarding the implementation of ... policies in any given agency. Id.
Defendants arguments fail for the same reason as the governments did in Vaughn. The Peace Corps asserts generally that the AVS surveys are part of the agencys processes for ongoing, continuous appraisals and improvements in all manner of agency activities, from strategic planning, to program improvement, to assessment of agency performance and beyond. Ryssman Decl. ¶¶ 10-13; Benjamin Decl. ¶¶ 10-13. To permit the Defendant to assert the deliberative process privilege for every piece of information which could be used, in some way or another, in the continuous process of improving the Agency would set virtually no limit on the privilege. Exemption 5s protections do not reach nearly this far.
Further contradicting the Peace Corps stated rationale for withholding under Exemption 5 is the fact that the agency produced most of the responses to the surveys. The Court is particularly puzzled by this because the Agency asserts that the entire AVS results are used to shape agency policy and decisionmaking. See Ryssman Decl. ¶¶ 10-13, Benjamin Decl. ¶¶ 10-13. The Agency offers no explanation as
E. Segregability
Plaintiff does not dispute that all reasonably segregable information was produced to him. Even after determination that documents are exempt from disclosure, however,
It has long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. Mead Data Cent., Inc. v. Dep‘t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). The agency should, for example, describe what proportion of the information in [the] documents, if any, is non-exempt and how that material is dispersed through the document[s]. Elec. Frontier Found., 826 F. Supp. 2d at 174 (citing Mead Data Cent., Inc., 566 F.2d 242, 261 (D.C. Cir. 1977)); see King v. Dep‘t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (agency must sufficiently identify the withheld material to enable the district court to make a rational decision whether the withheld material must be produced without actually viewing the documents).
Upon review of the documents, the Court finds that the defendants have made very limited, specific redactions with respect to the program-by-program survey results, and have explained in detail the basis for those redactions. See Miller Decl. ¶¶ 14, 16, 18, 35. It appears that defendants have redacted only what was necessary to protect the exempt information, and defendants are not withholding any documents in full. Accordingly, the Court finds that all segregable information in the program-by-program results of the 2009 and 2010 AVS has been disclosed to plaintiff.
IV. CONCLUSION
For all of the foregoing reasons, defendants motion to dismiss is GRANTED. The Court concludes that the Peace Corps was justified in withholding the Volunteer responses in the program-by-program breakouts for the following questions: 2009 AVS—F2, F3, F6, F7; 2010 AVS—F2, F3, F4, F6. The Peace Corps did not justify withholding of any other document at issue. Accordingly, defendants motion for summary judgment is GRANTED IN
EMMET G. SULLIVAN
District Judge