Campaign Legal Ctr. v. U.S. Dep't of Justice
Campaign Legal Ctr. v. U.S. Dep't of Justice
Opinion of the Court
Because the Court finds that the public has an interest in knowing about the formation of the Commission, including whether any other individual mentioned in the email was ultimately appointed alongside von Spakovsky, it finds that the release of the three individuals' names would not constitute an "unwarranted invasion of personal privacy" under
BACKGROUND
The Presidential Advisory Commission on Election Integrity
On May 11, 2017, President Trump issued an Executive Order establishing the Presidential Advisory Commission on Election Integrity ("the Commission"). Exec. Order No. 13,799,
The Executive Order states that the Vice President shall chair the Commission, and that the President shall appoint up to fifteen additional members, "who shall include individuals with knowledge and experience *164in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience that the President determines to be of value to the Commission."
On July 11, 2017, a group of Democrats on the Senate Judiciary Committee sent a letter to Attorney General Sessions and Acting Assistant Attorney General Wheeler seeking information on what they characterized as "apparent coordination" between the Department of Justice and the Commission.
On September 26, 2017, Senators sent another letter to Attorney General Sessions specifically seeking information about his potential involvement in von Spakovsky's appointment to the Commission.
*165The Commission did not last long. President Trump disbanded it on January 3, 2018, citing the refusal of many states to comply with the Commission's data requests. Exec. Order No. 13,820,
The FOIA Request
On February 15, 2017, plaintiff submitted a FOIA request to the Office of Information Policy ("OIP") of DOJ seeking records concerning:
a) President Trump's public voter fraud allegations,
b) any actual or potential investigation into alleged voter fraud,
c) any actual or potential executive order related to alleged voter fraud,
d) the creation of a commission or other agency to investigate or otherwise address alleged voter fraud, or any proposal to create such commission or agency,
e) any private organization, such as True the Vote or King Street Patriots, that addresses claims of voter fraud or electoral integrity,
f) any potential amendments to the National Voter Registration Act
Ex. A to Vanessa R. Brinkmann Decl. [Dkt. # 13-2] ("FOIA Request") at 4-5. The request also sought communications to or from:
a) the presidential transition team about voter fraud or electoral integrity,
b) Kris Kobach, Kansas Secretary of State, or
c) Gregg Phillips, Catherine Engelbrecht, or any employee of any private organization, such as True the Vote or King Street Patriots, that addresses claims of voter fraud or electoral integrity
Id. at 5. The time frame for the request was November 9, 2016 to the "present." Id. at 4. In the request, plaintiff stated that it became interested in this information following the President's comments that a "major investigation" into alleged voter fraud was necessary, which it feared could be the "first step in an agenda to make it harder to vote." FOIA Request at 3-4. Although at the time the President had expressed the need for an investigation, id. at 3-4, a commission had not yet been established.
On August 22, 2017, OIP notified plaintiff that the searches had been completed, and it released six pages of responsive records, including the redacted email chain which is the subject of this litigation. Vanessa R. Brinkmann Decl. [Dkt. # 13-2] ("Brinkmann Decl.") ¶ 5; Ex. C to Brinkmann Decl. [Dkt. # 13-2] ("OIP Final Response"). OIP initially redacted the names of several individuals who appeared in the email chain, as well as the contact information of those individuals, and one incidental remark about personal travel plans, pursuant to FOIA Exemption 6, "which pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties." OIP Final Response at 1, citing
*166Plaintiff filed an administrative appeal which was denied, Ex. 4 to Compl. [Dkt. # 1-4]; Ex. 5 to Compl. [Dkt. # 1-5], and then it filed this suit on February 13, 2018 arguing that the release of the redacted names that appeared in the email chain "would not constitute a clearly unwarranted invasion of personal privacy." Compl. ¶ 11. The complaint did not challenge the redactions of phone numbers, email addresses, or other private data in the records produced.
Following plaintiff's suit, the agency reconsidered its withholdings and released the names of two individuals who appeared in the email chain, Hans von Spakovsky and Ed Haden. Ex. D to Brinkmann Decl. [Dkt. # 13-2]. According to the government's declarant, the agency released their names since their heightened degree of "engagement" with the government reduced their privacy interest: von Spakovsky "authored the original e-mail and publicly acknowledged it," and Haden "affirmatively forwarded that e-mail to the government." Brinkmann Decl. ¶ 15.
On April 19, 2018, the government filed a motion for summary judgment arguing that it was justified in continuing to withhold the other three names and an incidental reference to von Spakovsky's personal travel plans in the email. Def.'s Mot. for Summ. J. [Dkt. # 13] ("Def.'s Mot."); Mem. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 13-1] ("Def.'s Mem.") at 6-11. Plaintiff opposed that motion, and filed its own motion for summary judgment challenging those redactions, and arguing in the alternative that the Court conduct an in camera review. Pl.'s Mot. for Summ. J. [Dkt. # 15]; Mem. in Opp. to Def.'s Mot. & in Supp. of Pl.'s Cross-Mot. for Summ. J. [Dkt. # 15] ("Pl.'s Cross-Mot."). Those motions are fully briefed and ripe for decision. See also Def.'s Combined Reply in Further Supp. of its Mot. for Summ. J. & Opp. to Pl.'s Cross-Mot. [Dkt. # 17] ("Def.'s Reply"); Pl.'s Reply in further Supp. of its Mot. for Summ. J. [Dkt. # 19] ("Cross-Reply").
The Redacted Email Chain
The redacted email chain begins with an email dated February 22, 2017 from Hans von Spakovsky, who identifies himself as the "Manager, Election Law Reform Initiative and Senior Legal Fellow" at The Heritage Foundation. Redacted Email. When he sent the email, the Commission had not yet been established, and von Spakovsky had not yet been appointed a Commissioner.
The email is titled "voter fraud commission," and it contains three redacted names which the government refers to as individuals b6-1, b6-2, and b6-3. Redacted Email; Brinkmann Decl. ¶ 9. It is addressed to two individuals; one of them is Ed Haden, identified by the government as a "private attorney" who "formerly served on Mr. Sessions' Senate staff," Brinkmann Decl. ¶ 10 n.1, and the other recipient is "individual b6-1" whose name has not been disclosed. See Redacted Email. The email was copied to a third addressee, "individual b6-2," and the email purports to be communicating concerns shared by that individual and von Spakovsky. See
Because of the email's centrality to this suit, it is worth reproducing in full.
*167
Less than two hours after receiving von Spakovsky's email, Haden forwarded it to Peggi Hanrahan, an assistant to Attorney General Jeff Sessions, who in turn forwarded it to the Attorney General on the same day. Brinkmann Decl. ¶ 10; Redacted Email.
The agency's declarant avers that:
All three of the individuals whose identities continue to be protected by OIP were private citizens at the time the e-mail was sent. None of these individuals sent, forwarded, or otherwise took an active role in the sending or subsequent forwarding to the Attorney General of the e-mail authored by Mr. von Spakovsky. Moreover, none of these individuals have publicly associated themselves with the e-mail or with the specific views presented therein.
Brinkmann Decl. ¶ 11. Based on these considerations, the agency determined that the three individuals' names should be withheld pursuant to FOIA Exemption 6.
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency's action de novo , and the " 'burden is on the agency' to show that requested material falls within a FOIA exemption." Nat'l Ass'n of Home Builders v. Norton ,
In a FOIA action, the Court may award summary judgment solely on the information provided in affidavits or declarations that describe "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." Military Audit Project v. Casey ,
ANALYSIS
Exemption 6 protects from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Nat'l Ass'n of Retired Fed. Employees v. Horner ,
When considering the validity of redactions under Exemption 6, the "threshold question is whether the requested information is contained in a personnel, medical, or similar file." Norton ,
Next, the Court must consider whether disclosure of the information at issue - the names of the three individuals in von Spakovsky's email - would constitute a "clearly unwarranted invasion of personal privacy."
"[T]he 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. ' " U.S. Dep't of Def. v. Fed. Labor Relations Auth. ,
The Court will analyze the privacy interests of the three unidentified individuals separately because their privacy interests may vary depending on the context in which their names appear in the email. See AILA ,
I. Individual b6-1
Individual b6-1 is one of the two individuals to whom von Spakovsky's email is addressed. See Redacted Email. This person's name appears nowhere else in the email chain.
At this stage of the analysis, the issue of whether disclosure would compromise a substantial, as opposed to a de minimis , privacy interest "is not very demanding." Multi Ag Media LLC v. Dep't of Agric. ,
In light of those precedents, the Court finds here that the revelation of b6-1's identity would compromise a "substantial," and not merely de minimis , privacy interest.
Since the asserted privacy interest involves more than a minimal invasion of individual privacy, the Court must go on to determine whether the public interest in disclosure outweighs the individual privacy concerns. See Norton ,
The agency contends that plaintiff has failed to establish that a significant public interest exists because it did not demonstrate that the information in von Spakovsky's email was "acted upon." Def.'s Reply at 10, citing Brinkmann Decl. ¶ 14 (stating that the Attorney General does not have an "official role" in appointing members to the Commission under the terms of the Executive Order and that "OIP did not locate any further discussion or consideration of the von Spakovsky e-mail"). But FOIA does not require the plaintiff to prove that the information was "acted upon." The operative question is whether disclosure would advance FOIA's purpose of helping members of the public stay informed about "what their government is up to." Reporters Comm. ,
Here the Court agrees with plaintiff that disclosure would advance that goal by shedding light on the formation of the Commission by the executive branch. It is undisputed that von Spakovsky's email argued strongly for a particular make-up of the Commission, that his email was forwarded to the Attorney General while these decisions were underway, and that von Spakovsky himself was later appointed to the Commission. See Redacted Email. It is also the case that there has been significant public interest related to DOJ's ties to the Commission, including its role in the appointment process. See Senators' July 2017 Letter, Senators' September 2017 Letter, Senators' October 2017 Letter.
*171While it is true that the record does not definitively establish that the email ultimately influenced the Commission, the statements submitted by the government declarant do not rule it out either.
Since the Court has found a greater than de minimis privacy interest and a significant public interest in disclosure, the Court must now balance the two interests to determine whether the privacy stake is "not outweighed by the public interest in disclosure." Multi Ag Media ,
Given the public interest in the formation of the Commission, and the fact that von Spakovsky's appointment followed the transmittal of the email, there is a public interest in knowing who he asked to weigh in that outweighs the individual's weak privacy interest in shielding that information. Individual b6-1 was openly named as an additional addressee - rather than blind copied ("bcc") - so the name travelled with the email as it was forwarded to DOJ personnel. In light of those considerations, along with the "strong presumption in favor of disclosure," Norton ,
II. Individual b6-2
Individual b6-2 is central to the email, and at all points von Spakovsky purports to be advancing a joint point of view:
• (b)(6)-2 got a very disturbing phone call about the voter fraud commission that Vice President Pence is heading. We are told that the members of this commission are to be named on Tuesday. We're also hearing that they are going to make this bipartisan and include Democrats.
• There are only a handful of real experts on the conservative side on this issue and not a single one of them (include (b)(6)-2 and me) have been called other than Kris Kobach, Secretary of State of Kansas. And we are told that some consider him too "controversial" to be on the commission[.]
• (b)(6)-2 and I are concerned that this commission is being organized in a way that will guarantee its failure. We are astonished that no one in the WH has even bothered to consult with us or (b)(6)-3 despite the fact *172that the three of us have written more on the voter fraud issue than anyone in the country on our side of the political aisle.
• I think you know from the white paper we sent you that based on our experience we have thought long and hard about what needs to be done.
Redacted Email.
The government declarant points out that "[a]lthough the text of the e-mail might suggest that individual b6-2 shares the views expressed therein, individual b6-2 did not sign the e-mail, nor did this person weigh in on the e-mail." Brinkmann Decl. ¶ 17. Based on that, the agency believes "it is possible that the individual b6-2 did not, in fact, share the views being expressed or had a different perspective in the matter."
The government's characterization of this individual as one who has not actively shared his or her opinion is entirely at odds with the text of the email, in particular the reference to the white paper that "we" sent previously. But since even a "speculative" privacy risk can meet the threshold requirement of a greater than minimal privacy interest, Norton ,
In any event, the heart of the analysis is whether this weak privacy interest outweighs the strong public interest in disclosure. The Court finds it does not. Here in particular, the public has an interest in knowing who may have attempted to influence the appointment process, and whether individual b6-2 was ultimately named a Commissioner or added to the Administration. These interests, which squarely contribute to the public's understanding of the Government's operations or activities, see Fed. Labor Relations Auth. ,
III. Individual b6-3
Individual b6-3's name appears once in the email. Von Spakovsky wrote:
We are astonished that no one in the WH has even bothered to consult with us or (b)(6)-3 despite the fact that the three of us have written more on the voter fraud issue than anyone in the country on our side of the political aisle.
Redacted Email.
The government's declarant avers that individual b6-3 is "merely mentioned" in the email and "does not appear to have any role at all in the e-mail other than this passing reference to him." Brinkmann Decl. ¶ 17. The declarant adds that the agency has been "unable to identify any evidence" that individual b6-3 has "publicly taken positions that Mr. von Spakovsky has attributed" to him or her,
Plaintiff argues that "[s]ince b6-3 has evidently written publicly in [the voter fraud] field, b6-3 has no serious privacy interest in being identified by Mr. von Spakovsky as a relevant authority on matters of voter fraud." Pl.'s Cross-Mot. at 19. But that does not address, the agency's concern that von Spakovsky may have erroneously characterized individual b6-3 as *173being on his "side of the political aisle," and apparently the agency has not been able to verify the accuracy of that statement, notwithstanding von Spakovsky's representations.
While a privacy interest in avoiding a possibly inaccurate portrayal has not been established with any degree of likelihood, the Court finds that the risk is more than minimal, and that is all that is required to move on to the balancing test. Norton ,
IV. Redacted Personal Travel Plans, b6-4
Finally, plaintiff challenges the redaction designated "b6-4" which pertains to von Spakovsky's personal travel plans.
CONCLUSION
For the reasons stated, the Court will deny defendant's motion for summary judgment, [Dkt. # 13], with respect to redactions (b)(6)-1, (b)(6)-2, and (b)(6)-3, and grant defendant's motion with respect to redaction (b)(6)-4.
The Court will grant plaintiff's motion for summary judgment, [Dkt. # 15], with respect to redactions (b)(6)-1, (b)(6)-2, and (b)(6)-3, and deny plaintiff's motion with respect to redaction (b)(6)-4 and its request for an in camera review of the withheld material.
*174The government must release the names of individuals b6-1, b6-2, and b6-3 since such disclosure would not "constitute a clearly unwarranted invasion of personal privacy."
Statements & Releases, President Announces Formation of Bipartisan Presidential Commission on Election Integrity, May 11, 2017, https://www.whitehouse.gov/briefings-statements/president-announces-formation-bipartisan-presidential-commission-election-integrity/.
Nomination & Appointments, President Donald J. Trump Announces Key Additions to his Administration, June 29, 2017, https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-key-additions-administration-4/.
Klobuchar, Feinstein, Whitehouse, Senate Judiciary Committee Democrats Ask Justice Department Whether the Administration Has the Legal Authority to Request Sensitive Voter Information, United States Senator Amy Klobuchar, July 11, 2017, https://www.klobuchar.senate.gov/public/index.cfm/2017/7/klobuchar-feinstein-whitehouse-senate-judiciary-committee-democrats-ask-justice-department-whether-the-administration-has-the-legal-authority-to-request-sensitive-voter-information. ("Senators' July 2017 Letter").
Letter from Sen. Sheldon Whitehouse, et al. to Attorney General Jeff Sessions, et al., Sept. 26, 2017, https://www.whitehouse.senate.gov/imo/media/doc/170926_Letter%20to%20DOJ%20-%20Election%20Commission.pdf ("Senators' September 2017 Letter").
Letter from Sen. Sheldon Whitehouse, et al. to Attorney General Jeff Sessions, et al., Oct. 17, 2017, https://www.whitehouse.senate.gov/imo/media/doc/171017_Letter%20to%20DOJ.pdf ("Senators' October 2017 Letter"). This letter noted that since their initial request for information:
[A]dditional documents have come to light evidencing the Department's involvement with the Commission's workings. This is concerning, particularly in light of another recent court production showing Commission Vice Chair Kris Kobach's plans to dismantle the National Voter Registration Act. As we have written before, it would be a low moment for the Department to have a been a facilitator of Mr. Kobach's efforts to suppress voter access by perpetuating the myth of widespread voter fraud.
Plaintiff contends that the redactions do not implicate a substantial privacy interest and in support of this argument it quotes a footnote in the Supreme Court's decision in Department of Air Force v. Rose which states that "threats to privacy" cannot be "mere possibilities" but rather must be "palpable." Pl.'s Cross-Mot. at 12, quoting
The fact that the declarant took pains to say that the none of the three unidentified individuals were in the government "at the time the e-mail was sent" carefully leaves open the possibility that one or more joined the Administration thereafter, which would make their involvement of greater public import. Brinkmann Decl. ¶ 13.
Plaintiff does not appear to challenge this redaction in the complaint it filed. See Compl., "Requested Relief," at 6-7 (seeking that the Court "[o]rder that the redacted names in the documents sought by the Plaintiff's Request ... are public under
Plaintiff argues that since the government declarant indicated that the redactions concerned personal travel plans but also provide "details about [von Spakovsky's] availability for further discussion," Pl.'s Cross-Mot. at 25, citing Brinkmann ¶ 19, that the "public has an interest in knowing what specific offer for further discussion Mr. von Spakovsky made in this email."
Reference
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- CAMPAIGN LEGAL CENTER v. UNITED STATES DEPARTMENT OF JUSTICE
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- Published