                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 21 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 TORRES CONSULTING AND LAW                       No.    14-17303
 GROUP, LLC,
                                                 D.C. No. 2:14-cv-00801-MEA
                 Plaintiff-Appellant,

   v.                                            MEMORANDUM*

 NATIONAL AERONAUTICS AND
 SPACE ADMINISTRATION,

                 Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Mark E. Aspey, Magistrate Judge, Presiding

                          Submitted November 17, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and GILMAN*** and FRIEDLAND, Circuit
Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
      Plaintiff Torres Consulting and Law Group (“Torres”) appeals the district

court’s grant of summary judgment to NASA on Torres’s Freedom of Information

Act (“FOIA”) claim. Invoking FOIA Exemptions 4 and 6, NASA totally withheld

the requested contractor’s payroll records, and the district court affirmed. 5 U.S.C.

§ 552(b). We review de novo summary judgment decisions in FOIA cases.

Animal Legal Def. Fund v. U.S. Food & Drug Admin., No. 13-17131, 2016 WL

4578362 (9th Cir. Sept. 2, 2016) [hereinafter ALDF] (en banc) (per curiam). We

reverse and remand.

                                          I.

      Section (a) of FOIA generally obligates the government to disclose

information to the public; section (b) contains nine exemptions to this general

disclosure obligation. See 5 U.S.C. § 552(a)-(b); Frazee v. U.S. Forest Serv., 97

F.3d 367, 370 (9th Cir. 1996), abrogated on other grounds by ALDF, 2016 WL

4578362. Exemption 4 applies to matters that are “trade secrets and commercial or

financial information obtained from a person and privileged or confidential.” 5

U.S.C. § 552(b)(4). Information is confidential for the purposes of Exemption 4 if

its disclosure is likely “to cause substantial harm to the competitive position of the

person from whom the information was obtained.” GC Micro Corp. v. Def.

Logistics Agency, 33 F.3d 1109, 1112-13 (9th Cir. 1994) (citing Nat’l Parks &

Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)), abrogated on


                                          2
other grounds by ALDF, 2016 WL 4578362. Information will result in substantial

competitive injury if it “‘would allow competitors to estimate, and undercut, [the

firm’s] bids.’” Id. at 1115 (quoting Gulf & W. Indus., Inc. v. United States, 615

F.2d 527, 530 (D.C. Cir. 1979)).

      The parties here dispute whether releasing the requested information would

likely cause substantial competitive injury to RTD Construction, Inc. (“RTD”), and

they submitted competing evidence on this question to the district court.

      Sitting en banc, we recently held that “if there are genuine issues of material

fact in a FOIA case, the district court should proceed to a bench trial or adversary

hearing. Resolution of factual disputes should be through the usual crucible of

bench trial or hearing, with evidence subject to scrutiny and witnesses subject to

cross-examination.” ALDF, 2016 WL 4578362 at *2. We have characterized the

substantial-competitive-harm determination as a factual question. See Animal

Legal Def. Fund v. U.S. Food & Drug Admin., No.13-17131, 2016 WL 5827463,

at *1 (9th Cir. Sept. 30, 2016) [hereinafter ALDF Panel Opinion] (per curiam);

ALDF, 2016 WL 4578362, at *1; Lion Raisins Inc. v. U.S. Dep’t of Agric., 354

F.3d 1072, 1078 (9th Cir. 2004), abrogated on other grounds by ALDF, 2016 WL

4578362.

      In ALDF itself, we concluded that competing declarations offered by the

parties raised a dispute of material fact as to competitive harm. ALDF Panel


                                          3
Opinion, 2016 WL 5827463, at *1. Accordingly, we reversed the grant of

summary judgment and remanded for further proceedings. Id.

      The same issue of material fact exists in this case. Here, as in ALDF, the

parties submitted competing declarations, with equivalent levels of detail and

based on equivalent levels of knowledge, about whether the release of the

requested information would cause competitive harm. Torres also requested a

hearing at which to present more evidence. We reverse as to Exemption 4 and

remand for further proceedings to resolve the dispute of material fact on the issue

of competitive harm.

                                         II.

      FOIA Exemption 6 applies to “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). To determine whether disclosing the

information would constitute a clearly unwarranted invasion of personal privacy,

“‘we must balance the privacy interest protected by the exemptions against the

public interest in government openness that would be served by disclosure.’”

Prudential Locations LLC v. U.S. Dep’t of Hous. & Urban Dev., 739 F.3d 424, 430

(9th Cir. 2013) (per curiam) (quoting Elec. Frontier Found. v. Office of the Dir. of

Nat’l Intelligence, 639 F.3d 876, 886 (9th Cir. 2010), abrogated on other grounds

by ALDF, 2016 WL 4578362), abrogated on other grounds by ALDF, 2016 WL


                                          4
4578362. This balancing test involves two steps. At the first step, the agency must

prove that there is more than a de minimis personal privacy interest. Id.; Yonemoto

v. Dep’t of Veterans Affairs, 686 F.3d 681, 694 (9th Cir. 2012), abrogated on other

grounds by ALDF, 2016 WL 4578362. If the privacy interest is more than de

minimis, the court goes on to the second step, where it balances that privacy

interest with the public interest in disclosure. But if the agency does not establish

that disclosing the information would invade a non-trivial privacy interest, then

“FOIA demands disclosure, without regard to any showing of public interest.”

Yonemoto, 686 F.3d at 694; see also Prudential Locations, 739 F.3d at 430.

      Here, Torres does not contest that the information it seeks is a “similar file”

to medical or personnel files, within the meaning of Exemption 6. Torres does

dispute, however, that there is any privacy interest in the documents it seeks once

all of the information that identifies a particular individual—names, addresses and

social security numbers—has been redacted, as Torres concedes it should be. The

Supreme Court has interpreted Exemption 6 as covering only information that is

linked to an identifiable person. See, e.g., U.S. Dep’t of State v. Ray, 502 U.S. 164,

175-76 (1991) (disclosure of highly personal information “constitutes only a de

minimis invasion of privacy when the identities” are unknown); U.S. Dep’t of State

v. Wash. Post Co., 456 U.S. 595, 602 n.4 (1982) (explaining that “[i]nformation

unrelated to any particular person presumably would not satisfy the threshold test”


                                          5
for a privacy interest under Exemption 6); Dep’t of Air Force v. Rose, 425 U.S.

352, 375-76 (1976) (explaining that Exemption 6 is “intended to cover detailed

Government records on an individual which can be identified as applying to that

individual and not the facts concerning the award of a pension or benefit or the

compilation of unidentified statistical information from personal records”) (quoting

H.R. Rep. No. 1497, 89th Cong., 2d Sess., 11 (1966), U.S. Code Cong. & Admin.

News 1966, p.2428) (emphasis added).

      In light of these precedents, any privacy interest in payroll data after names,

addresses, and social security numbers are redacted is trivial. Thus, “FOIA

demands disclosure, without regard to any showing of public interest.” Yonemoto,

686 F.3d at 694.1 Accordingly, we reverse the district court’s judgment as to

Exemption 6, which was the only exemption NASA invoked to withhold tax

deduction, tax withholding, and net earnings information.2

      On remand, the district court should reconsider the issue of segregability

after determining whether NASA properly invoked Exemption 4 to withhold

workers’ job classifications, dates and hours worked, total hours worked, rates of

pay, gross earnings information, and whether the pay was standard or overtime.



1
  We therefore do not reach the parties’ arguments about public interest.
2
  Although we hold that Exemption 6 does not apply to gross earnings, NASA also
invoked Exemption 4 to withhold that information, so that category of information
will need to be considered further on remand.

                                          6
      Torres requested attorney’s fees in its brief. Such a request must be made in

accordance with Ninth Circuit Rule 39-1.6.

      For the foregoing reasons we REVERSE and REMAND.




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