                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
CHARLES LUDLAM, et al.,          )
                                 )
               Plaintiffs,       )
                                ) Case No. 11-1570 (EGS)
          v.                     )
                                 )
                                 )
UNITED STATES PEACE CORPS,       )
                                 )
               Defendant.        )
________________________________)


                         MEMORANDUM OPINION


       This Freedom of Information Act (“FOIA”) case is before the

Court on defendant 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 FOIA request seeking

production, in electronic format, of a country-by-country

breakout of the Peace Corps’ 2008 survey of its Volunteers.

Compl. ¶ 18.   The Peace Corps acknowledged the information

existed, but stated that it “is not available in the format

[plaintiffs] asked for.”   Compl. ¶ 24.     The Peace Corps informed

plaintiffs that it would cost anywhere from approximately $850 -

$3100 for the Peace Corps to search for and produce the

information, and that production would not be electronic.        Id.

¶¶ 24-28.


    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 doesn’t appear necessary for




                                   2
 
[the Peace Corps] to continue to staff your request for these.”

Id. ¶ 33.


       On December 16, 2010, Ludlam submitted a second FOIA request,

seeking “a copy of the Peace Corps comprehensive survey of the

Volunteers for 2009 and 2010, [including] the worldwide results

and the breakouts of the results country by country and program

by program for each country.”                                        Id. ¶ 40.1   On March 17, 2011, the

FOIA officer provided aggregated worldwide summary results of

the 2009 and 2010 Annual Volunteer Surveys (“AVS”), but informed

Mr. Ludlam that the individual country and program survey

results were withheld under Exemptions 5 and 6 of FOIA.                                         Id. ¶

48.           Specifically, the agency claimed the information sought was

exempt from disclosure because it was covered by the

deliberative process privilege, or because it involved matters

of personal privacy.                                           Id.


       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,
                                                            
1
   Each Peace Corps post has a number of programs or “projects”
such as education, health and agriculture. Defendant’s Motion
to Dismiss or for Summary Judgment (“Def.’s Mot.”) Att. B,
Declaration of Denora Miller (“Miller Decl.”) ¶ 16.
                                                                      3
 
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 FOIA request.    Shortly

thereafter, the Peace Corps released additional information to

Mr. Ludlam.    On or about January 31, 2012, the Peace Corps

provided Ludlam a significant portion of the country-by-country

and program-by-program AVS results for 2009 and 2010.    Miller

Decl. ¶ 14.    The Peace Corps continued to withhold, in whole or

in part, Volunteer responses to seven questions in the 2009 AVS

and ten questions in the 2010 AVS on a country-by-country and

program-by-program breakouts.    Id.   On February 2, 2012, the

defendant moved to dismiss, or in the alternative, for summary

judgment.    The motion is now ripe for the Court’s decision.


    II.   STANDARD OF REVIEW

          A. Motion to Dismiss


      Exhaustion of administrative remedies in FOIA cases is

“generally required before filing suit in federal court so that

the agency has an opportunity to exercise its discretion and

expertise on the matter and to make a factual record to support

its decision.” Oglesby v. Dep’t of Army, 920 F.2d 57, 61 (D.C.

Cir. 1990) (overruled in part on other grounds).    FOIA requires

the requester to exhaust administrative remedies; when a

                                  4
 
defendant disputes that a FOIA plaintiff has done so, the matter

is properly the subject of a motion under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.

Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1260

(D.C. Cir. 2003).


          B. Summary Judgment


     Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law.     See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002).    In determining whether a genuine issue of fact exists,

the court must view all facts in the light most favorable to the

non-moving party.     See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).    Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed.     See Citizens for Responsibility & Ethics in

Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.

1975)).


                                   5
 
       C. FOIA


     FOIA requires agencies to disclose all requested agency

records, 5 U.S.C. § 552(a), unless one of nine specific

statutory exemptions applies, id. § 552(b).     It is designed to

“pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.”   Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976) (citations omitted).    “Given the

FOIA’s broad disclosure policy, the United States Supreme Court

has ‘consistently stated that FOIA exemptions are to be narrowly

construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)

(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).


     “FOIA’s 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

(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 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


                                 6
 
record or by evidence of the agency’s 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 agency’s justification for invoking a FOIA

exemption is sufficient if it appears logical or plausible)

(internal citations omitted).


    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 FOIA request, which is the only request at

issue in this lawsuit.   Def.’s Mot. at 6-8.     The plaintiffs do

not oppose defendant’s argument.       Plaintiffs’ Opposition to

Motion to Dismiss or for Summary Judgment at 5-6 (“Pls.’

Opp’n”).    Accordingly, the defendant’s motion to dismiss

plaintiff Hirschoff is GRANTED.


      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 Court’s ability to consider the

case on its merits.




                                   7
 
       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.’ Opp’n 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 FOIA exemption.   Def.’s Reply at 24-25.

For the reasons discussed below, the Court agrees with defendant

and finds that no waiver occurred.


      In this Circuit, the “public-domain doctrine” has emerged

as the dominant paradigm for evaluating the waiver of a

potential FOIA exemption.   “Under [the] public-domain doctrine,

materials normally immunized from disclosure under FOIA lose

their protective cloak once disclosed and preserved in a

permanent public record.”   Cottone v. Reno, 193 F.3d 550, 554

(D.C. Cir. 1999) (citations omitted).   The logic of this

doctrine is that “where information requested ‘is truly public,

                                 8
 
then enforcement of an exemption cannot fulfill its purposes.’”

Id. (citations omitted).    “[A] plaintiff asserting that

information has been previously disclosed bears the initial

burden of pointing to specific information in the public domain

that duplicates that being withheld.”      Public Citizen v. Dep’t

of State, 11 F.3d 198, 201 (D.C. Cir. 1993).     An allegation that

similar information has been released is not sufficient.      Id.


     In this case, plaintiff’s 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

plaintiff’s claim of waiver.    While agency leaders may have


                                   9
 
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.” 5 U.S.C. § 552(b)(6).

A determination of proper withholding under Exemption 6 proceeds

in two stages.   First, the Court must decide if the information

is subject to protection, specifically, whether the information

is contained in a personnel, medical, or similar file, and if

so, whether “disclosure would compromise a substantial, as

opposed to a de minimis, privacy interest.     If no significant

privacy interest is implicated, (and if no other Exemption

applies), FOIA demands disclosure.” Nat’l Ass’n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).     If, on

the other hand, a substantial privacy interest is at stake, the

Court must then “weigh the privacy interest in nondisclosure

                                  10
 
against the public interest in the release of records in order

to determine whether, on balance, the disclosure would work a

clearly unwarranted invasion of personal privacy.” Lepelletier

v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation

marks omitted).                                   The agency bears the burden to persuade the

Court that the exemption applies.                                         Ripskis v. HUD, 746 F.2d 1, 3

(D.C. Cir. 1984).


              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.


                             1. First Type of Question:                     Rating Staff Performance


              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”).

                                                            
2
   Unless otherwise noted, the Court takes all facts regarding
the questions and withheld responses from the Defendant’s
Motion, Exhibit 10 (Table of Withheld Responses); Exhibit 1
(2009 AVS), Exhibit 2 (2010 AVS), and Exhibit 14 (Vaughn index),
as well as Plaintiff’s Opposition, Exhibit 1 (Chart of Withheld
Responses).
                                                                     11
 
     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 sub-

questions 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.



                                 12
 
     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) encountered that type of

harassment/discrimination, and (ii) reported it to the Peace

                                 13
 
Corps.   The question is further broken down into seven different

categories of persons responsible for the harassment.    The Peace

Corps has withheld responses for two of the categories:

“counterpart, supervisor, co-worker (not Peace Corps)” and “Host

Country Family Member.”


           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 co-

worker (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


                                14
 
invasion of personal privacy.”    Dep’t of State v. Washington

Post Co., 456 U.S. 595, 600 (1982).    By contrast, “[i]nformation

unrelated to any particular person presumably would not satisfy

the threshold test.”   Id. at 602 n.4.    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 (“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



                                  15
 
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 1 (same).3


                    The Peace Corps has not met the threshold exemption,

however, for responses to the second or third types of

questions.                         As set forth above, the second type of question

relates to insensitive comments or behavior from Volunteers’ (a)

host families or (b)community members, or discrimination/

harassment they have encountered from their (a) counterparts,

supervisors, or co-workers, or (b) host families.                                      On their

face, these categories seem very likely to include a large

number of individuals, and the agency has provided no indication

to the contrary.                                     The Peace Corps relies on the declarations of

                                                            
3
  Plaintiff argues that any privacy interest in the ratings data
has been abolished because the readers of the country-by-country
reports are “encouraged to share the results with staff and
Volunteers.” Opp’n at 12. Courts have held, however, that the
mere fact that some information may be known to certain members
of the public does not negate an individual’s privacy interest
in preventing further dissemination to the public at large.
See, e.g., Forest Serv. Employees v. U.S. Forest Serv., 524 F.3d
1021, 1025 n.3 (9th Cir. 2008); Barnard v. Dept of Homeland
Sec., 598 F. Supp. 2d 1, 12 (D.D.C. 2009) (collecting cases).
                                                                    16
 
employees Denora Miller and Esther Benjamin for support, but

these declarations do not demonstrate any likelihood that the

withheld information could be linked to a particular individual.


     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.        Ms. Benjamin’s

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] identif[ied],” unsupported by any

                                   17
 
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 agency’s 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 disclosure would work a clearly unwarranted invasion of

personal privacy.”   Lepelletier, 164 F.3d at 46 (citations

omitted).   The phrase “clearly unwarranted” within the statute

“instructs the court to tilt the balance in favor of



                                18
 
disclosure.”   Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir.

1971).


     In the FOIA context, the definition of “public interest” is

limited.   ““The only relevant public interest in the FOIA

balancing analysis [is] the extent to which disclosure of the

information sought would ‘shed light on an agency’s performance

of its statutory duties’ or otherwise let citizens know ‘what

their government is up to.’”   United States Dep’t of Defense v.

FLRA, 510 U.S. 487, 497 (1994) (citations omitted).   The court

must therefore weigh the privacy interest of Peace Corps staff

in the non-disclosure of the survey questions rating their

performance against the extent to which the disclosure of this

information would shed light on the agency’s “performance of its

statutory duties” or otherwise let citizens know “what their

government is up to.”   Id.


     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, 22 U.S.C. § 2507.   Opp’n at 18-19.

The new provisions charge the Peace Corps with providing a

variety of protections for Volunteers who are victims of sexual


                                19
 
assault.   22 U.S.C. §§ 2507a – 2507d.     More generally, the new

provisions institute robust reporting requirements about

Volunteers and Peace Corps staff.       Congress has directed the

Peace Corps to provide it with the results of Annual Volunteer

Surveys, and also with Inspector General Reports containing,

inter alia, “reports received from volunteers relating to

misconduct, mismanagement or policy violations of Peace Corps

Staff.”    Id. §§ 2507e(c) and (d).     Congress further directed the

President to perform a country by country portfolio review for

each country the Peace Corps serves.       Id. § 2507e(e) (emphasis

added).    The portfolio review, which must be provided to

Congress upon request, “shall at a minimum include,” inter alia,

(i) an analysis of the safety and security of Volunteers, and

(ii) an evaluation of the effectiveness of management of each

Peace Corps post.     Id.   Finally, the new provisions of the Act

require the President to submit to Congress, on an annual basis,

a report including “the annual rate of early termination of

volunteers, including demographic data associated with such

early termination.”     Id. § 2507i.


     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.”      Opp’n at 19.   The



                                   20
 
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 public’s 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 Agency’s mission

includes protecting the safety and security of the Volunteers,

as well as ensuring that Peace Corps personnel are effectively

managing the agency’s operations at a country by country level.

These are precisely the concerns addressed in the AVS questions

relating to staff performance:   Volunteer access to health care,

support from staff in substantive areas including safety and

security, and staff awareness of and responsiveness to

Volunteers’ concerns.   See AVS 2009 and 2010 Questions F2, F3,

F4, F6, F7.   Disclosure of this information would therefore

serve the very public interest central to the purposes of FOIA

by furthering the right of the public to know “what their



                                 21
 
government is up to.” United States Dep’t of Justice v.

Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989).


     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.”   Opp’n 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 22 U.S.C. § 2507e(e).     By

contrast, Plaintiff has not produced any support for his claim

that there is public interest in program-by-program survey

results within each country.   The Court therefore cannot

conclude that the program-by-program data is relevant to the

public’s ability to monitor whether the agency is correctly

doing its job.


     Through the new reporting requirements, the amendments to

the Act provide that much of the information plaintiff seeks


                                22
 
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., 515 F.3d 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


                                  23
 
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 management within each

country.                     Accordingly, release of this information would not

“constitute a clearly unwarranted invasion of personal privacy”

under Exemption 6.


                      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.”                                           5

U.S.C. § 552(b)(6).                                            Citing Exemption 5’s deliberative process

privilege, the Peace Corps has withheld responses to all of the

AVS questions also withheld under Exemption 6, as well as

responses to all or part of three additional questions.


              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,
                                                            
4
  Unless otherwise noted, the Court takes all facts regarding the
questions and withheld responses from the Defendant’s Motion,
Exhibit 10 (Table of Withheld Responses); Exhibit 1 (2009 AVS),
Exhibit 2 (2010 AVS), and Exhibit 14 (Vaughn index), as well as
Plaintiff’s Opposition, Exhibit 1 (Chart of Withheld Responses).                                            

                                                                         24
 
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

                                  25
 
policies are formulated.”   Dep’t of the Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8 (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 (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. 2009)

(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 strategies and policies; and (2) the surveys

themselves state that they will “be used by the Peace Corps to

identify best practices and implement program improvements” and

“will contribut[e] to the improvement of the Peace Corps’

operations and, ultimately, to the success of the Peace Corps.”

Def.’s Mot. at 38-39, see also Declaration of Alice-Lynn Ryssman

at ¶¶ 10-13.   In her declaration, Peace Corps official Esther



                                26
 
Benjamin states that “AVS data are used in agency strategic

planning and performance activities . . . assessments of agency

performance . . . [and] internal monitoring at cohort, project,

post, regional, and global levels[.]”   Benjamin Decl. ¶ 11.

Plaintiff responds that “the generalized and aspirational agency

goals and functions” set forth in the agency declarations “are

not decisions within the meaning of the statute. . . .   Indeed,

virtually any action or information considered by the Peace

Corps conceivably could fit within this definition and thus be

withheld from public disclosure.”   Opp’n at 27.


     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

agency’s study of how to shepherd a FOIA bill through Congress

to be a defined process) with Vaughn v. Rosen, 523 F.2d 1136,

1143 (D.C. Cir. 1975) (finding an agency’s efforts to evaluate

and change its personnel policies, rules and standards too

amorphous to qualify as a process for the purposes of the

deliberative process privilege).


     In Vaughn, the agency asserted that reports appraising the

performance of agency supervisors were protected under the


                               27
 
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.


        Defendant’s arguments fail for the same reason as the

government’s did in Vaughn.     The Peace Corps asserts generally

that the AVS surveys are part of the agency’s 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



                                  28
 
another, in the continuous process of improving the Agency would

set virtually no limit on the privilege.    Exemption 5’s

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 to why the withheld

information constitutes pre-decisional deliberations connected

to an agency policy or action, while the other responses in the

same documents are not.   In order to show that material is

deliberative, the agency must identify “what deliberative

process is involved and the role played by the documents at

issue in the course of that process.”   Coastal States Gas Corp.

v. Dep’t of Energy, 617 F. 2d 854, 868 (D.C. Cir. 1980).      Here,

the Peace Corps has failed to do either.    Accordingly, the Court

finds the agency has not met its burden to demonstrate that the

withheld materials are both pre-decisional and deliberative, and

therefore that the documents are not properly withheld under

Exemption 5.




                                29
 
          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, FOIA analysis is

not properly concluded unless a court determines whether “any

reasonably segregable portion of a record” can “be provided to

any person requesting such record after deletion of the portions

which are exempt.”    5 U.S.C. § 552(b).   “So important is this

requirement that ‘[b]efore approving the application of a FOIA

exemption, the district court must make specific findings of

segregability regarding the documents to be withheld.’”      Elec.

Frontier Found. v. Dep’t of Justice, 826 F. Supp. 2d 157, 173

(D.D.C. 2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d

1106)).    The Court errs if it “simply approve[s] the withholding

of an entire document without entering a finding on

segregability or the lack thereof.”      Powell v. U.S. Bureau of

Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1992) (citations

omitted).


     “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


                                 30
 
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, defendant’s motion to

dismiss is GRANTED. The Court concludes that the Peace Corps was

justified in withholding the Volunteer responses in the program-


                                  31
 
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, defendant’s motion for summary judgment is GRANTED

IN PART AND DENIED IN PART.   An appropriate Order accompanies

this Memorandum Opinion.




Signed:   Emmet G. Sullivan
          United States District Judge
          March 29, 2013




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