UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BUZZFEED INC.,

Plaintiff,

v. Case No. 18-cv-01535 (CRC)

U.S. DEPARTMENT OF EDUCATION,

Defendant.

OPINION AND ORDER

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in

programs and activities that receive federal funding. See

(a). As part of its

responsibility to enforce Title IX, the Department of Education, through its Office of Civil

Rights (“OCR”), investigates whether covered school districts are adequately responding to

sexual assault complaints by students. When OCR completes an investigation, it sends a

“resolution letter” to the relevant school or school district documenting its findings.

The media outlet BuzzFeed lodged two Freedom of Information Act (“FOIA”) requests

with the Department of Education for resolution letters sent by OCR to fourteen separate schools

or districts across the country. BuzzFeed seeks the documents to assess the agency’s Title IX

enforcement efforts. When the Department failed to release the requested letters within statutory

deadlines, BuzzFeed sued. The Department then released the letters in redacted form. Both

sides now move for summary judgment. The sole issue raised in the motions is the propriety of

the Department’s redactions. 1 The agency maintains they are necessary to protect the privacy of

1 The suit originally alleged other FOIA violations, but the Department has produced the three final sets of records that BuzzFeed sought and provided details explaining the lack of responsive documents for the Charlotte-Mecklenburg, North Carolina school district. See Declaration of Karen Mayo-Tall (“Mayo-Tall Decl.”) ECF No. 21-2 ¶ 2; Declaration of Kristine those involved in the investigations. BuzzFeed accepts that some of the redactions are

appropriate but complains that others unduly obscure whether OCR is fulfilling its enforcement

obligations.

At BuzzFeed’s request, the Court has examined the complete, unredacted resolution

letters in camera. Based on that review, the Court finds that the agency’s approach to redacting

the letters appears to be inconsistent and that the redactions to two of the letters are significantly

overbroad. The Court will not fly-speck particular redactions, however. It will instead deny

each side’s summary judgment motion without prejudice and remand the requests to the

Department for reprocessing in a manner consistent with this ruling. The parties may renew their

motions if BuzzFeed believes the re-produced letters are still too-heavily redacted.

* * *

The Court will dispense with reciting the general legal standards governing FOIA

litigation, which the parties well know. The Department invokes FOIA Exemptions 6 and 7(C)

to justify its redactions. Exemption 6 covers “personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). Exemption 7(C) covers “records or information compiled for law

enforcement purposes, but only to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to constitute an unwarranted invasion of

personal privacy.”

§ 552(b)(7)(C). If the Court determines that a privacy interest exists

under one of the two exemptions, it “must balance ‘the privacy interests that would be

Minami (“Minami Decl.”), ECF No. 15-2, ¶ 16. As BuzzFeed has not contested the adequacy of these productions or the search terms used to attempt to locate records for Charlotte- Mecklenburg, the issue of search adequacy is waived. The agency withdrew its assertion of Exemption 7(A) but maintains that Exemptions 6 and 7(C) cover all redacted information. Mayo-Tall Decl. ¶ 3.

2 compromised by disclosure against the public interest in release of the requested information.’”

King & Spalding LLP v. U.S. Dep’t of Health & Human Servs.,

(D.D.C. 2018) (quoting Davis v. U.S. Dep’t of Justice,

(D.C. Cir. 1992)).

When an agency invokes both Exemptions 6 and 7(C), courts “focus” on Exemption 7(C)

because it “establishes a lower bar for withholding material.” Citizens for Responsibility &

Ethics in Washington v. Dep’t of Justice,

, 1091 n.2 (D.C. Cir. 2014) (internal

quotation marks omitted). Because BuzzFeed does not dispute that the records are tied to the

Department’s law enforcement efforts, the Court has “no need to consider Exemption 6

separately because all information that would fall within the scope of Exemption 6 would also be

immune from disclosure under Exemption 7(C).” Rosenberg v. U.S. Dep’t of Immigration &

Customs Enf’t,

(D.D.C. 2014) (citing Roth v. U.S. Dep’t of Justice,

(D.C. Cir. 2011)).

The privacy interest that Exemption 7(C) protects “encompass[es] the individual’s

control of information concerning his or her person,” U.S. Dep’t of Justice v. Reporters Comm.

for Freedom of the Press,

(1989), including “when, how, and to what extent

information about them is communicated to others,”

at 764 n.16. This includes personally

identifiable information (“PII”), traditionally consisting of names, addresses, dates of birth, and

other specific information reasonably likely to reveal a person’s identity. See, e.g., SafeCard

Servs., Inc. v. SEC,

(D.C. Cir. 1991). The interest goes further, too. When

“the mosaic effect of disclosure of pieces of information could potentially lead to the

identification of the third parties,” that information becomes redactable PII as well. Rosenberg,

. When Exemption 7(C) is invoked, the agency can “withhold only the

specific information to which it applies, not the entire page or document in which the

3 information appears; any non-exempt information must be segregated and released[.]” Mays v.

DEA,

(D.C. Cir. 2000).

After conducting an in camera review of each document and considering each redaction

in light of the case law and the circumstances of each school or district, the Court concludes that

while some of the redactions are appropriate, others are improperly broad. Many of the

redactions protect traditional PII including dates or highly specific details that would allow

identification of individuals involved in the underlying events that were investigated. See

Rosenberg,

; Farese v. U.S. Dep’t of Justice,

(D.D.C.

1987) (holding that dates of entry into a program, when revealed among other information, could

allow for identification of witnesses, thus justifying redaction). For example, the resolution

letters to the Imagine Prep School in Arizona and Adams County School District 12 in Colorado,

both prepared by an official at OCR Denver, were minimally redacted and appear to

appropriately balance the privacy interests of individuals involved (such as the dates of the

allegations or other information specific enough to constitute PII) with the public’s interest in

learning how OCR responded to the discrimination complaint and what its investigation found.

See Declaration of David Sumners ¶ 3, ECF No. 15-5; Plaintiff’s Statement of Undisputed Facts

(“Pl. Facts”) Ex. A, ECF No. 17-2; Pl. Facts Ex. B, ECF No. 17-3.

On the other hand, the letters to East St. Louis, Illinois School District 189 and the

Baraboo School District in Wisconsin, for example—both redacted by an official in OCR’s

Chicago office—have pages-long redactions. See Declaration of Lauren Skerrett, ECF No. 15-3,

¶¶ 7, 9; Pl. Facts Ex. C, ECF No. 17-4; Pl. Facts Ex. F, ECF No. 17-7. To the Court’s eye, the

redactions in these letters conceal significant amounts of information beyond the scope of either

Exemptions 6 or 7(C). These redactions hide details too general to allow for identification of

4 individuals involved (particularly given the relatively large size of the districts), including

information about the investigation that is not PII at all. For example, both letters include

redacted discussions of OCR’s legal conclusions, as well as general details of how the school

districts themselves investigated and responded to the complaints. If revealed, these details

would illuminate OCR’s work but would not risk identifying those involved in the underlying

incidents. FOIA protects “threats to privacy interests more palpable than mere possibilities.”

Dep’t of Air Force v. Rose,

, 380 n.19 (1976). The government offers no basis for

the Court to conclude that the risk of identification here rises to that level. Further, because these

redactions withhold substantial details about the OCR’s Title IX investigations, they undermine

“the citizens’ right to be informed about what ‘their government is up to,’” making the public

interest in revealing much of the redacted information high. Reporters Comm. for Freedom of

the Press,

.

The Court appreciates that these resolution letters deal with a sensitive subject and the

agency must be careful not to reveal details that would expose the identities of those involved,

either directly or indirectly. By the same token, BuzzFeed (and the public) has a right to

examine how OCR is conducting these sensitive investigations. Exemptions 6 and 7(c) call for

careful balancing when redacting information, demanding a scalpel rather than a buzzsaw.

While some OCR officials were appropriately careful in their redactions, others were too

aggressive. As a result, the Court will remand the matter to the agency to reprocess the records

and narrow the redactions where necessary.

For the foregoing reasons, it is hereby

ORDERED that [15] Defendant’s Motion for Summary Judgment is DENIED without

prejudice. It is further

5 ORDERED that the [17] Plaintiff’s Motion for Summary Judgment is DENIED without

prejudice. It is further

ORDERED that the case shall be remanded to the Defendant with instructions to

reprocess the records in a manner consistent with this Opinion. It is further

ORDERED that the Defendant shall produce the reprocessed documents to the Plaintiff

on or before September 6, 2019. It is further

ORDERED that on or before September 23, 2019, the parties shall file a Joint Status

Report, indicating the need for further proceedings in this case and, if necessary, proposing a

briefing schedule.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: August 7, 2019

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