Opinion
Civil Action No. 18-2172 (JDB)
2019-10-31
Michael J. HORVATH, Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant.
Jane C. Luxton, Lewis Brisbois Bisgaard & Smith LLP, Washington, DC, Nicholas M. Wieczorek, Clark Hill PLLC, Las Vegas, NV, for Plaintiff. Derek S. Hammond, Benton Gregory Peterson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
Jane C. Luxton, Lewis Brisbois Bisgaard & Smith LLP, Washington, DC, Nicholas M. Wieczorek, Clark Hill PLLC, Las Vegas, NV, for Plaintiff.
Derek S. Hammond, Benton Gregory Peterson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
JOHN D. BATES, United States District Judge
Plaintiff Michael Horvath, a special agent employed by the United States Secret Service, brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking records related to the Secret Service's internal investigation into his complaint that he was subjected to workplace retaliation for filing a class action lawsuit against his employer. After Horvath filed this FOIA action, the Secret Service released the relevant investigation case file to him but withheld certain information under FOIA Exemptions 6 and 7(C), which protect against invasions of personal privacy, as well as under FOIA Exemption 5's deliberative process privilege. The Secret Service now moves for summary judgment, claiming it has released all non-exempt material and fully satisfied its FOIA obligations. Def.'s Mot. for Summ. J. [ECF No. 17] ("Def.'s Mot."). Horvath opposes the motion. Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [ECF No. 18]. For the reasons explained below, the Secret Service's motion for summary judgment will be granted.
BACKGROUND
Horvath is a special agent with the United States Secret Service. Compl. [ECF No. 1] ¶ 3. On June 10, 2016, he filed a class action lawsuit seeking overtime and related compensation on behalf of himself and other similarly situated special agents of the Secret Service. Id. ¶ 5. Horvath claims that, shortly thereafter, while on assignment at the Los Angeles Field Office, his supervisor retaliated against him for filing the class action lawsuit. Id. ¶ 6; Def.'s Statement of Facts ("Def.'s Facts") [ECF No. 17-2] ¶ 2; Ex. 1 to Pl.'s Opp'n [ECF No. 19-1] at 28–30.
In September 2016, Horvath filed his allegation of retaliation with the Secret Service's Office of Integrity. See Compl. ¶ 7; Def.'s Facts ¶ 2. He later learned that the Secret Service had conducted a fact-finding investigation into his allegation and deemed the matter closed. Compl. ¶ 10. But by April 2017, Horvath had not heard anything regarding the findings of the investigation, so he requested all records associated with it. Id. ¶¶ 10–11. His request was forwarded to the Secret Service's FOIA Office, yet over a year later—in September 2018—Horvath still had not received any documents, despite repeatedly requesting updates and asking for an estimated date of completion for his FOIA request. See id. ¶¶ 12–24. As a result, Horvath brought this action, alleging that the Secret Service's failure to respond to his records request violated FOIA. See id. ¶¶ 26–31.
A little over a month after Horvath filed suit, the Secret Service produced the only set of records responsive to Horvath's request: a sixty-five-page case file concerning the Secret Service Inspection Division's investigation of a third-party employee based on Horvath's allegation that the employee had subjected Horvath to workplace harassment and retaliation. See Campbell Decl. [ECF No. 17-3] ¶ 11. Pursuant to FOIA Exemptions 5, 6, and 7(C), certain information was redacted throughout the sixty-five pages, and seventeen of the sixty-five pages were withheld in their entirety. Id. ¶¶ 13–14. In particular, the Secret Service fully withheld the substance of five sworn statements by Secret Service agents and two memoranda of interviews with Secret Service agents prepared as part of the investigation. Campbell Decl., Ex. 4 at 1–7.
The Secret Service claims it has released all responsive, nonexempt information and now moves for summary judgment. See Mem. of P.&A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem.") [ECF No. 17-1] at 3–9. Horvath opposes the motion, alleging that the Secret Service improperly applied the FOIA exemptions and that the Vaughn Index and FOIA Officer's Declaration are insufficient to support the exemptions or to justify why all segregable information has been disclosed. See Pl.'s Opp'n at 7–14. Specifically, Horvath challenges the Secret Service's withholding of "factual information uncovered by the fact-finding investigation" under Exemptions 6 and 7(C) and the withholding of "factual information acquired through the fact-finding inquiry and provided by witnesses" under Exemption 5. Id. 8, 10. The Court understands this factual information to be the "substance of any statements provided to investigators," which the Secret Service withheld entirely under Exemptions 6 and 7(C) from documents 1, 6–11, and 13 (USSS 1–22, 38–72, 76–82). The Secret Service also withheld information in those same documents under Exemption 5's deliberative process privilege.
Horvath is therefore not challenging documents 2–5 and 12 (USSS 23–37, 73–75), which have either been released in full or contain only minimal redactions of the names of Secret Service agents. Additionally, certain pages within the set of documents at issue have either been released in full or contain redactions only of names, titles, signatures, and other personally identifiable information of Secret Service agents that do not amount to factual information uncovered by the investigation. These individual pages within the relevant set of documents are also not at issue.
LEGAL STANDARD
"FOIA cases typically and appropriately are decided on motions for summary judgment." Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (internal quotation marks omitted); see also Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriate where "the movant 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). The court may grant summary judgment in favor of the agency only after the agency has established "that it has fully discharged its disclosure obligations under FOIA." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983).
District courts determine de novo whether an agency properly withheld requested documents under a statutory exemption to FOIA, and the agency "bears the burden of proving the applicability of claimed exemptions." Am. Civ. Liberties Union (ACLU) v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) ; see also 5 U.S.C. § 552(a)(4)(B). "If an agency's 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 agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU, 628 F.3d at 619. "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) ).
ANALYSIS
Horvath challenges the Secret Service's withholding determinations under Exemptions 6 and 7(C) and Exemption 5's deliberative process privilege. He also argues that the Secret Service's analysis on segregability is insufficient. However, as explained below, the Court finds that the Secret Service properly withheld information that would disclose "who said what" to the investigators under Exemption 6, properly withheld Secret Service employees' opinions under Exemption 5's deliberative process privilege, and released all segregable, non-exempt information.
1. Exemptions 6 & 7(C)
Horvath challenges the Secret Service's claim that certain factual information uncovered by the investigation is exempt under both (or either) Exemptions 6 and 7(C) because disclosure of the information threatens the privacy interests of third-party Secret Service employees, including witnesses and those subject to investigation. See Pl.'s Opp'n at 10–12; Campbell Decl. ¶ 25.
Exemption 6 protects "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). Exemption 7(C) protects "records or information compiled for law enforcement purposes ... to the extent that production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to "balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Beck v. U.S. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). "[T]he privacy inquiry of Exemptions 6 and 7(C) [is] essentially the same," Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1125 (D.C. Cir. 2004), although Exemption 7(C) "establishes a lower bar for withholding material," ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011).
The Court first considers whether the Secret Service properly withheld information under Exemption 6. The Secret Service claims that the investigative file at issue is a "personnel file" or "similar file" under Exemption 6 because it concerns an investigation of a specific Secret Service employee based on an allegation of possible misconduct. Campbell Decl. ¶ 22. Horvath does not dispute this claim. See Pl.'s Opp'n at 7–12. Indeed, "the phrase ‘similar files’ was to have a broad, rather than a narrow, meaning," U. S. Dep't of State v. Washington Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982), and courts have applied Exemption 6 to administrative investigative files in the past, see Wood v. F.B.I., 432 F.3d 78, 86–87 (2d Cir. 2005).
Instead, Horvath argues that Exemption 6 does not apply because there is no substantial privacy interest at stake. See Pl.'s Opp'n at 10. He claims that he seeks the factual information uncovered by the fact-finding investigation related to his allegation of workplace harassment, not any personally identifying information, and thus disclosure does not implicate substantial privacy interests. Id. Specifically, Horvath takes issue with the Secret Service withholding, in their entirety, "witness statement summaries" and "sworn statements of interview subjects." Id. at 12. The Secret Service argues that the witnesses involved in the investigation have a substantial privacy interest in the non-disclosure of their identifying information, which includes not only their names and titles, but also their "knowledge about facts and events" because disclosing such information "would allow those familiar with the events to readily identify these individuals." Def.'s Mem. at 7–8 n.1.
The Court agrees with the Secret Service. First, the Court finds—and Horvath does not dispute—that the third-party Secret Service agents interviewed in the investigation have a substantial privacy interest in withholding information that "would associate [them] with internal agency investigations and threatens to identify them as witnesses to ... alleged workplace misconduct." Kearns v. Fed. Aviation Admin., 312 F. Supp. 3d 97, 111 (D.D.C. 2018) ; see also Cotton v. Adams, 798 F. Supp. 22, 26 (D.D.C. 1992) (holding that, under Exemption 6, "individuals named as witnesses or as subjects of an investigation ... have a discernable privacy interest ... in avoiding the embarrassment and potential harassment that may result from public disclosure of their association with an Inspector General's inquiry").
Other Secret Service personnel referred to in the documents, like the investigators, also have a substantial privacy interest in withholding their personally identifiable information because Secret Service employees have "far-reaching responsibilities other than assisting in the investigatory aspects of this case, and publication of their identities could lead to interruption in their official duties, and seriously prejudice their effectiveness in carrying out their protective and criminal investigative responsibilities." Campbell Decl. ¶ 27; see also Long v. Office of Pers. Mgmt., 692 F.3d 185, 192, 195 (2d Cir. 2012) (holding that employees of sensitive federal agencies, including the Secret Service, have a privacy interest in keeping their names and duty-stations from being disclosed under Exemption 6). But Horvath does not seek disclosure of personally identifiable information that would reveal special agents' identifies to the public—just disclosure of facts that may reveal witnesses' identities to those, like Horvath, familiar with the events at issue. See Pl.'s Opp'n at 10.
Specifically, disclosure could subject employees interviewed as part of the investigation "to unwarranted questioning concerning the ... investigation, subpoenas issued by private litigants in civil suits, and harassment from co-workers or other individuals." Croskey v. U.S. Office of Special Counsel, 9 F. Supp. 2d 8, 12 (D.D.C. 1998), aff'd, No. 98-5346, 1999 WL 58614 (D.C. Cir. Jan. 12, 1999). Further, "an employee will feel more free to talk ... about possible employer violations if he feels his name will not be attached to his statements." L & C Marine Transp., Ltd. v. United States, 740 F.2d 919, 922–23 (11th Cir. 1984) (abrogated on other grounds) (discussing witnesses' privacy interests in context of law enforcement investigation into a work-related accident).
"Identifying information" is not limited to names, social security numbers, and other discrete pieces of information. See Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F. Supp. 2d 13, 30–31 (D.D.C. 2012). "[W]hile the redaction of an individual's name may be sufficient to protect his identity and privacy from the public, it may not be sufficient to protect him in the smaller community of his school or work." Id. at 30. For example, in Nat'l Whistleblower, the court held that the Office of the Inspector General properly withheld the entirety of interview reports, handwritten notes taken during witness interviews, and witness statements under Exemption 7(C) because some of the plaintiffs would be able to identify the witnesses based on the details in those documents. Likewise, in Dep't of Air Force v. Rose, the Supreme Court held that case summaries of honor and ethics hearings at a service academy may need to be withheld under Exemption 6 because "what constitutes identifying information regarding a subject cadet must be weighed not only from the viewpoint of the public, but also from the vantage of those ... familiar ... with other aspects of his career at the Academy." 425 U.S. 352, 380, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
Here, the information withheld under Exemption 6 "concerns a small group of individuals who are known to each other and to the Plaintiff and who are easily identifiable from the details contained in the withheld information." Campbell Decl. ¶ 26. "Redacting only an individual's name would allow a person familiar with the facts and circumstances of the investigation to identify everyone involved, including ... which witness said what about their knowledge of the alleged harassment/retaliation and misconduct." Id. Thus, in addition to the names, titles, and duty locations, the Secret Service redacted "other personal information including information about facts and events" that would "identify the speaker." Id.
The Court accepts the Secret Service's determination that the redacted information, including "the substance of any statements provided to investigators," Campbell Decl., Ex. 4 at 1, 3–6, would reveal the identity of the Secret Service agents who provided sworn statements or were interviewed as part of the investigation because "lacking the knowledge of an ... insider, the Court is not in a position to make line-by-line determinations of which statements from a witness interview would expose the witness's identity." Nat'l Whistleblower, 849 F. Supp. 2d at 31 ; see also Alirez v. N. L. R. B., 676 F.2d 423, 428 (10th Cir. 1982) (internal quotation marks omitted) ("The problems in undertaking to decide which portions of an employee's statement may be released ... without revealing that employee's identity are enormous, if, indeed, not insoluble."). Further, such declarations are afforded a "presumption of good faith, which cannot be rebutted by purely speculative claims." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). Finally, deference to the agency's determination is warranted because the agency has not "categorically withheld in full all documents" for which it claims Exemption 6 applies, Nat'l Whistleblower, 849 F. Supp. 2d at 31, but instead "carefully conducted a line-by-line review of all responsive records" and "made every attempt to release as much information as is possible," Campbell Decl. ¶¶ 29, 31.
Having established the substantial privacy interests at stake, the Court now considers the public interest in release of the withheld information. Horvath claims "there is public interest in how the Secret Service handles allegations of workplace harassment." Pl.'s Opp'n at 10. But the information already released largely satisfies this public interest because it "provid[es] a picture of the allegation made and the steps taken by the Secret Service to investigate the allegation." Campbell Decl. ¶ 28. Further, there is not a sufficient public interest to outweigh the witnesses' privacy interests because nothing in the record suggests that the Secret Service mishandled the investigation into Horvath's allegation of workplace misconduct. See McCutchen v. U.S. Dep't of Health & Human Servs., 30 F.3d 183, 188 (D.C. Cir. 1994) ("A mere desire to review how an agency is doing its job, coupled with allegations that it is not, does not create a public interest sufficient to override the privacy interests protected by Exemption 7(C)."); Consumers' Checkbook Ctr. for the Study of Servs. v. U.S. Dep't of Health & Human Servs., 554 F.3d 1046, 1054 n.5 (D.C. Cir. 2009) ("[T]he rationale of ... McCutchen for requiring more than unsupported allegations that an agency is not doing its job applies under FOIA Exemption 6 as well.").
Thus, the Court is satisfied that the information withheld under Exemption 6, including the substance of any statements provided to investigators, is from a personnel or similar file and that disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. Because the Court finds that the information is properly withheld under Exemption 6, there is no need to determine whether that same information is also properly withheld under Exemption 7(C).
2. Exemption 5's Deliberative Process Privilege
Horvath also challenges the Secret Service's withholding of information under Exemption 5's deliberative process privilege, arguing that factual information is not deliberative and that the Vaughn Index does not sufficiently support the exemption. See Pl.'s Opp'n at 7–9. Exemption 5 protects "inter-agency or intra-agency memorandums ... that would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5) ; see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Exemption 5 incorporates the "deliberative process privilege," which protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal citation omitted).
For the deliberative process privilege to apply, the material must be "predecisional" and "deliberative." Loving v. Dep't of Def., 550 F.3d 32, 38 (D.C. Cir. 2008). Documents are "predecisional" if they are "prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal quotation marks omitted). And documents are "deliberative" if they reflect "the give-and-take of the consultative process." Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
"[T]he privilege protects documents reflecting advisory opinions, recommendations, and deliberations ... as well as other subjective documents that reflect the personal opinions of the writer...." Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C. Cir. 1981). The privilege may also protect certain factual material if "its disclosure would expose the deliberative process." United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 45 (D.D.C. 2008). Non-privileged factual information within a document that can be segregated from the privileged information must be disclosed. Id.
To support the exemption, an agency must provide a "sufficiently detailed" analysis. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). That analysis, also referred to as a Vaughn Index, "must adequately describe each withheld document or deletion from a released document," "state the exemption claimed for each," and "explain why the exemption is relevant." Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
The Court finds that the Secret Service properly applied Exemption 5 to any opinions in the sworn statements or memoranda of interviews. The Campbell Declaration describes the information withheld under Exemption 5 as "pre-decisional opinions" that upper-management officials used to make a final determination as to whether the agency should proceed with a disciplinary action related to Horvath's internal complaint against another employee. Campbell Decl. ¶ 18. According to the Vaughn index, the withheld information contained "opinions of Secret Service Agents about the subject of the investigation and the parties involved." Campbell Decl., Ex. 4 at 1; see also id. at 2–6. This type of information is properly withheld under Exemption 5. See Lurie v. Dep't of Army, 970 F. Supp. 19, 34 (D.D.C. 1997) ("Witness statements ... raise Exemption 5 questions where the witnesses include among their version of the facts their opinions and recommendations."); Ferrigno v. U.S. Dep't of Homeland Sec., No. 9-5878, 2011 WL 1345168, at *10 (S.D.N.Y. Mar. 29, 2011) (withholding interview memoranda under Exemption 5 because they "reflect the personal opinions of the interviewees" and "public disclosure is likely to have a chilling effect on witnesses in future investigations").
Horvath's argument, however, is that the Secret Service withheld facts—not just opinions—under Exemption 5. See Pl.'s Opp'n at 7–9. Horvath appears to be right. Although the Vaughn Index says only opinions were withheld under Exemption 5, the Campbell Declaration states that "the Secret Service is withholding in full 17 pages of material pursuant to exemption (b)(5)." Campbell Decl. ¶ 20 (emphasis added). Those seventeen pages are part of memoranda of witness interviews and sworn witness statements that contain factual information that the Secret Service is also withholding under Exemptions 6 and 7(C). The Court has no way of determining whether that factual information would reveal the Secret Service's deliberative process because the Secret Service does not provide any kind of explanation in the Campbell Declaration or the Vaughn Index as to what type of facts it is withholding under Exemption 5, much less how those facts would reveal the Secret Service's deliberative process.
But ultimately, the Secret Service's failure to justify the application of Exemption 5 to facts in agents' sworn statements and memoranda of interviews is of no consequence because that same factual information is also being withheld (properly) under Exemption 6. Again, the Court understands Horvath to be arguing that the Secret Service improperly applied both Exemption 5 and Exemption 6 to factual information uncovered by the investigation or otherwise provided by witnesses. See Pl.'s Opp'n at 8, 10. Because the Court concludes that the Secret Service properly withheld such facts, in their entirety, under Exemption 6, see Campbell Decl., Ex. 4 at 1, 3–6 (withholding "the substance of any statements provided to investigators" under Exemption 6), there is no need for the Court to assess whether that same factual information could also be withheld under Exemption 5. Thus, the Court concludes only that the Secret Service properly withheld under Exemption 5 opinions in the agents' sworn statements and in the memoranda of interviews, and notes that the facts in those statements and memoranda are already exempt under Exemption 6.
3. Segregability
An agency must disclose "any reasonably segregable" non-exempt portions of the requested records. 5 U.S.C. § 552(b) ; see also Mead Data Cent. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) ("[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions."). Horvath claims that the Secret Service's analysis on segregability is conclusory and does not sufficiently specify which portions of the withheld documents are disclosable and which are exempt. See Pl.'s Opp'n at 13–14.
The Court finds that the Secret Service has released all reasonably segregable non-exempt information because it has "carefully conducted a line-by-line review of all responsive records and has determined what portions must be released and what portions must be withheld under statutory exemptions." Campbell Decl. ¶ 29. The Secret Service also claims that "[f]urther segregation was not possible because any non-exempt information is inextricably intertwined with exempt information and releasing it would yield a product with little, if any, additional informational value while expending substantial Secret Service time and resources." Id. The Secret Service claims it has "made every attempt to release as much information as is possible." Id. ¶ 31.
Although the Secret Service has withheld in full the substance of Secret Service agents' statements to investigators, the Secret Service has explained in detail why those statements would reveal "who said what" and constitute a substantial invasion of privacy that outweighs any public interest in disclosure. Further, the Secret Service is "entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). An in-camera review of the documents being withheld in full would not prove useful because, as noted, "the Court is not in a position to make line-by-line determinations of which statements from a witness interview would expose the witness's identity." Nat'l Whistleblower, 849 F. Supp. 2d at 31 ; see also Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) ("[O]ur case law has rejected the argument that district courts are required to conduct in camera review in FOIA cases").
CONCLUSION
The Court will therefore grant the Secret Service's motion for summary judgment with respect to all the documents at issue. The Secret Service has properly withheld identifying information—including the substance of agents' statements to investigators—under Exemption 6 and has also properly withheld agents' opinions about the subject of the investigation and other agents involved under Exemption 5's deliberative process privilege. The Secret Service released all other reasonably segregable, nonexempt information and is therefore entitled to summary judgment. A separate order has been issued on this date.