UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TODD SHEPHERD,

Plaintiff, v. Civil Action No. 18-2004 (TJK) CONSUMER FINANCIAL PROTECTION BUREAU,

Defendant.

ORDER

Journalist Todd Shepherd filed this lawsuit under the Freedom of Information Act

(FOIA),

, against the Consumer Financial Protection Bureau (CFPB), seeking the

phone records of its employee Leandra English from November 2017 through March 2018. The

public focused its attention on the CFPB during those months when English sought—

unsuccessfully—to be recognized as the CFPB’s acting Director. See English v. Trump,

, 313–15 (D.D.C. 2018). This case turns on whether the CFPB may properly

withhold certain phone numbers reflected in the six pages of records identified as private,

personal information under FOIA’s Exemption 6. The CFPB and Shepherd have moved for

summary judgment. ECF Nos. 10, 16. For the reasons explained below, the Court will deny

both motions without prejudice and require the parties to propose a schedule for further summary

judgment briefing. Neither the CFPB’s motion and accompanying declaration nor Shepherd’s

motion are adequate for the Court to determine whether either party is entitled to summary

judgment.

* * * “Summary judgment is appropriately granted when, viewing the evidence in the light

most favorable to the non-movants and drawing all reasonable inferences accordingly, no

reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.–Islamic Relations

Action Network, Inc.,

(D.C. Cir. 2016). “The evidence presented must show

‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.’”

(quoting Fed. R. Civ. P. 56(a)).

Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Morley v. CIA,

(D.C. Cir. 2007)

(quoting Dep’t of Air Force v. Rose,

(1976)). There is a “strong presumption

in favor of disclosure,” which “places the burden on the agency to justify the withholding of any

requested documents.” U.S. Dep’t of State v. Ray,

(1991); Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,

(D.C. Cir. 2014).

“The FOIA ‘mandates that an agency disclose records on request, unless they fall within one of

nine exemptions.’” Electronic Privacy Info. Ctr. v. DHS,

(D.C. Cir. 2015)

(quoting Milner v. Dep’t of Navy,

, 565 (2011)). And those exemptions “are

explicitly made exclusive” and “must be narrowly construed.” Id. (quoting Milner, 562 U.S. at

565).

When the propriety of an agency’s withholding is at issue, summary judgment for the

agency is justified if the agency’s supporting declarations and exhibits describe the requested

documents and “the justifications for nondisclosure with reasonably specific detail, demonstrate

that the information withheld logically falls within the claimed exemption, and are not

controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Larson v. Dep’t of State,

(D.C. Cir. 2009) (quoting Miller v. Casey,

773, 776 (D.C. Cir. 1984)). The agency cannot rely on “conclusory and generalized allegations

of exemptions.” Morley,

(quoting Founding Church of Scientology of Wash.,

D.C., Inc. v. NSA,

(D.C. Cir. 1979)).

Exemption 6 provides that agencies may withhold “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.”

(b)(6). Courts follow a two-step process when considering

withholdings or redactions under Exemption 6. First, they “determine whether the [records] are

personnel, medical, or ‘similar’ files covered by Exemption 6.” Multi Ag Media LLC v. Dep’t of

Agric.,

(D.C. Cir. 2008). The phrase “similar files” includes all information

that “applies to a particular individual.” Dep’t of State v. Wash. Post Co.,

, 599–

603 (1982). Second, if the records are so covered, courts “determine whether their disclosure

‘would constitute a clearly unwarranted invasion of personal privacy.’” Multi Ag. Media,

(quoting

(b)(6)).

In making the latter determination, courts must “balance the public interest in disclosure

against the interest Congress intended [Exemption 6] to protect.” Dep’t of Def. v. FLRA,

(1994) (quoting Dep’t of Justice v. Reporters Comm. for Freedom of Press,

(1989)). This involves a second two-step process. Courts first determine whether

“disclosure would compromise a substantial, as opposed to a de minimis, privacy interest.” Nat’l

Ass’n of Home Builders v. Norton,

(D.C. Cir. 2002) (quoting Nat’l Ass’n of

Retired Fed. Emps. v. Horner,

(D.C. Cir. 1989)). If the interest is substantial,

they “weigh the interest against the public interest in the release of the records.”

(internal

quotation marks omitted) (quoting Horner,

). Exemption 6 “does not

categorically exempt individuals’ identities . . . because the ‘privacy interest at stake may vary

3 depending on the context in which it is asserted.’” Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006) (quoting Armstrong v. Exec. Office of the President,

(D.C.

Cir. 1996)). The “only relevant ‘public interest in disclosure’ to be weighed in this balance is the

extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]

significantly to public understanding of the operations or activities of the government.’” Dep’t of

Def. v. Fed. Labor Relations Auth.,

(1994) (alteration in original) (quoting

Reporters Comm.,

).

* * *

The CFPB has identified six pages of landline and government-issued cell phone records

that reflect the time, date, duration, and phone numbers associated with English’s incoming and

outgoing calls during the period requested. ECF No. 10-3 ¶ 8. It seeks to withhold a subset of

the phone numbers reflected in those records—which it redacted when it produced the records to

Shepherd—under Exemption 6. In arriving at its redactions, the CFPB followed the following

process: first, it identified its own employees’ “Washington, D.C. office landline phone

numbers,” which it did not redact under Exemption 6. Id. ¶¶ 9, 11. And second, it used “the

internet search tool Google” to determine whether the remaining phone numbers belonged to “a

private individual or a business entity.” Id. ¶ 10. Similarly, it did not redact phone numbers

associated with business entities under Exemption 6. Id. ¶ 11. The CFPB does not say one way

or the other whether it successfully used Google to associate any of the phone numbers with

individuals. It represents only that it redacted all phone numbers it could not link, as explained

above, to either the CFPB’s Washington, D.C. landlines or to businesses. Id.

4 As explained below, the CFPB’s motion and accompanying declaration and Shepherd’s

motion are inadequate for the Court to determine whether either party is entitled to summary

judgment.

FOIA mandates a strong presumption of disclosure. And the CFPB bears the burden of

proving that the phone numbers it redacted from the six pages of records at issue may be

withheld under Exemption 6. But all the CFPB has told the Court about them is that they are not

either (1) the CFPB’s own Washington, D.C. landlines or (2) numbers that the CFPB could

associate with businesses using Google. This information is insufficient for the Court to

determine whether these phone numbers are personnel, medical, or “similar files” that apply to a

particular individual; and, if so, whether, upon balancing the public interest in disclosure against

the privacy interests at stake, their disclosure would constitute a clearly unwarranted invasion of

personal privacy. To undertake the above analysis, the Court needs more information about the

redacted phone numbers—as opposed to what they are not. As the Circuit has instructed, a

privacy interest related to Exemption 6 may vary depending on the context in which it is

asserted. Simply put, the Court has little context here.

Moreover, the CFPB’s approach shows why the Court cannot—as the CFPB urges—

simply assume on this record that all the redacted phone numbers are those of individuals with

substantial privacy interests. The CFPB identified—and therefore did not redact—its own

Washington, D.C. landlines that appeared in the records. But it apparently took no steps to

identify landlines associated with other CFPB offices or CFPB-issued cell phones, two types of

phone numbers that, at a minimum, do not clearly warrant withholding under Exemption 6.

Similarly, the CFPB does not represent that it tried to identify, and therefore not redact, phone

numbers associated with government offices or officials outside the CFPB. Whether Exemption

5 6 would cover such phone numbers—as in countless other situations—would depend on the

particular facts, circumstances, and interests at stake. And finally, the CFPB’s use of Google to

exclude phone numbers associated with businesses from the redacted phone numbers did not

adequately accomplish that task, at least on the record here. The Court has no information about

the likelihood that a Google search of a phone number accurately reflects whether that phone

number belongs to a business. The Court therefore has no basis to infer there are no business

phone numbers among those that the CFPB redacted and withheld from Shepherd.

* * *

For all the above reasons, it is hereby ORDERED that Defendant’s Motion for Summary

Judgment, ECF No. 10, is DENIED WITHOUT PREJUDICE, and Plaintiff’s Cross-Motion

for Summary Judgment, ECF No. 16, is DENIED WITHOUT PREJUDICE. It is further

ORDERED that by October 16, 2019, the parties shall jointly propose a schedule for filing

renewed motions for summary judgment.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: September 17, 2019

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