                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                            )
AQUALLIANCE,                                )
                                            )
             Plaintiff,                     )
                                            )
      v.                                    )       Case No. 16-cv-0717 (TSC)
                                            )
U.S. ARMY CORPS OF ENGINEERS,               )
                                            )
             Defendant.                     )
                                            )

                                 MEMORANDUM OPINION

       This case concerns a 2015 Freedom of Information Act (“FOIA”) request made by Plaintiff

AquAlliance to the U.S. Army Corps of Engineers (“Army Corps”) regarding the California Water

Fix project. The Army Corps withheld a public notice distribution list containing names and

private addresses pursuant to FOIA Exemption 6, which covers certain personal information. The

parties have filed cross-motions for summary judgment regarding the application of this

exemption. (ECF Nos. 9, 11). For the reasons set forth below, the Army Corps’ motion is

GRANTED IN PART and DENIED IN PART, and Plaintiff’s cross-motion is GRANTED.

I.     BACKGROUND

       Plaintiff submitted its FOIA request to the Sacramento District of the Army Corps in

September 2015, seeking application records regarding Public Notice SPK-2008-00861 for the

California Water Fix project. (See Sept. 2015 FOIA Request (Def. Ex. A)). In response, the

Army Corps provided Plaintiff with a link to the California Department of Water Resource’s

website, where many of the responsive records were already publicly accessible, and also mailed

Plaintiff a CD containing additional responsive documents. (Platt Decl. ¶¶ 8; 13–14).




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       As part of its broader request for all application records, Plaintiff requested the public

notice distribution list of names and addresses of individuals who own property along the route of

the project. (See Platt Decl. ¶ 9). The Army Corps withheld this document on the grounds that the

information was exempt from disclosure under FOIA Exemption 6. (Id.; Faustino Decl. ¶¶ 8–22).

Plaintiff appealed the agency’s response in December 2015, and the Army Corps denied the

appeal in January 2016 after determining that it had properly applied Exemption 6. (Faustino

Decl. ¶ 13; Jan. 15, 2016 Letter to B. Vlamis (Def. Ex. K)).

II.    LEGAL STANDARD

       Summary judgment is appropriate where the record shows there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d

989, 991 (D.C. Cir. 2002). FOIA cases are typically and appropriately decided on motions for

summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

Agencies bear the burden of justifying withholding of any records, as FOIA requires the “strong

presumption in favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The court

therefore analyzes all underlying facts and inferences in the light most favorable to the FOIA

requester, even where the requester has moved for summary judgment. See Pub. Citizen Health

Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999). In cases such as this, concerning

the applicability of a FOIA exemption, agencies may rely on supporting declarations that are

reasonably detailed and non-conclusory. See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619

(D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001).

“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,




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and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith,

then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619.

“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears

‘logical’ or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t of State,

565 F.3d 857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should be

granted in favor of the FOIA requester where “an agency seeks to protect material which, even on

the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of

Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp. v. Dep’t of Interior,

976 F.2d 1429, 1433 (D.C. Cir. 1992)).

III.   DISCUSSION

       A. Adequacy of Search

       In Count I of its Complaint, Plaintiff alleges that Defendant conducted an inadequate

search in violation of FOIA, 5 U.S.C. § 552(a)(3)(C), which requires that an agency “make

reasonable efforts to search for the records in electronic form or format, except when such efforts

would significantly interfere with the operation of the agency’s automated information system.”

(Compl. ¶¶ 13–15). Defendant moved for summary judgment on this claim, as well as on the

issue of whether the agency disclosed all reasonably segregable information. In its Response and

cross-motion, Plaintiff conceded that the search was reasonable and failed to respond to the issue

of segregability. (See Pl. Mem. at 2). Because Plaintiff has conceded this claim and issue,

Defendant’s motion for summary judgment is GRANTED as to Count I.

       B. FOIA Exemption 6

       In its remaining claim, Plaintiff alleges that the Army Corps unlawfully withheld

responsive records under FOIA Exemption 6. (Compl. ¶¶ 16–18). Exemption 6 permits the




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withholding of “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). Agencies

(and courts) must engage in a four-step analysis to determine whether information is protected

from disclosure under this exemption. First, the text of the statute requires that the agency

determine whether each document is a personnel, medical, or “similar” file. Next, the agency

must determine if the individuals identified in the documents have a significant privacy interest in

the requested information. Multi Ag Media LLC v. USDA, 515 F.3d 1224, 1229 (D.C. Cir. 2008).

Third, the agency must evaluate the strength of any potential public interest in disclosure. See

NARA v. Favish, 541 U.S. 157, 172 (2004). Finally, the agency must balance the privacy interest

with the public interest and determine whether disclosure “would constitute a clearly unwarranted

invasion of personal privacy.” 5 U.S.C. § 552(b)(6).

       As to the first step, the parties agree that the withheld information is a “similar file[]”

under the FOIA exemption. The court must next identify whether “disclosure would compromise

a substantial, as opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired Fed. Emps. v.

Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). The Supreme Court has made clear that “disclosure

of a list of names and other identifying information” does not inherently violate individuals’

privacy interest. Dep’t of State v. Ray, 502 U.S. 164, 176 n.12 (1991). Instead, “whether

disclosure of a list of names is a ‘significant or a de minimis threat depends upon the

characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to

ensue.’” Id. (quoting Horner, 879 F.2d at 877). However, the Supreme Court has also expressed

“a reluctance in the FOIA context ‘to disparage the privacy of the home.’” See Nat’l Ass’n of

Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002) (quoting U.S. Dep’t of Def. v. FLRA,

510 U.S. 497, 501 (1994)). The inquiry is thus fact-specific. In Horner, the D.C. Circuit




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considered disclosure of a list that contained names and private addresses, as well as whether each

person received a monthly annuity payment from the federal government. 879 F.2d at 876. The

court found a significant privacy interest because the list had “apparent commercial value” and

“interested businesses, charities, and individuals could, and undoubtedly would, subject the listed

annuitants to an unwanted barrage of mailings and personal solicitations.” Id. at 876–77 (internal

quotation omitted). The court in Norton similarly identified at least a weak privacy interest when

it considered a list of addresses showing where certain owls had been sighted, determining that the

addresses could be linked to individuals’ names through public records and those individuals

could be subjected to unwanted trespassing on their properties. 309 F.3d at 34–36.

       Here, the court must evaluate what, if any, “characteristic(s) [are] revealed by virtue of

being on the particular list, and the consequences likely to ensue.” Ray, 502 U.S. at 176 n.12. The

Army Corps does not contend that the list reveals anything about the individuals on it apart from

the location of their properties. Therefore, it must argue that individuals would still be

“subject[ed] . . . to an unwanted barrage of mailings and personal solicitations.” Horner, 879 F.2d

at 876. To do so, the Army Corps asserts that “once that information is released [the individuals]

could become targets of harassing inquiries and uninvited solicitation if their identities are

released simply because of their proximity to the project.” (Faustino Decl. ¶ 21). The Army

Corps did not elaborate on the nature or source of these “harassing” and “uninvited” contacts, nor

did it provide the court with anything beyond speculation regarding the results of disclosing the

distribution list. It appears that the only information revealed about the individuals on the list is

that their properties are adjacent to the proposed project, which is information any individual

could discern from simply looking at property records or a map of the area. Indeed, Plaintiff’s

stated goal of contacting those individuals who live near the project area but were not notified of




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the project by the Army Corps, (see Pl. Mem. at 1), implies that individuals’ addresses are already

readily accessible, further undermining Defendant’s justification for withholding the public notice

distribution list.

        In the court’s view, the Army Corps has not met its burden of establishing that there is a

significant privacy interest in protecting from disclosure the individuals’ names and addresses on

the distribution list. While the threat of an “unwanted barrage of mailings and personal

solicitations” may establish a privacy interest, see Horner, 879 F.2d at 876, the Army Corps has

failed to allege with any specificity what unwanted contact these individuals would face simply by

being identified as living near the proposed project. This privacy interest thus falls below the level

required to withhold responsive records under FOIA Exemption 6.

        The court next considers the public interest in disclosure and balances the public and

private interests. Multi Ag Media LLC, 515 F.3d at 1229–30. Absent a significant privacy

interest, as here, then any identifiable public interest would weigh in favor of disclosure. In the

FOIA context, the relevant public interest 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

known what their government is up to.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999)

(quoting FLRA, 510 U.S. at 497). AquAlliance states that it requested the names and addresses on

the Army Corps’ distribution list to determine who was and was not notified by the Army Corps of

the project proposal and whether they had an opportunity to participate in a public comment

process. (Vlamis Decl. ¶ 7). The withheld information reflects on the actions taken by the

government in conducting its official business and reveals at least some information about what

the government is up to. Therefore, the court finds that there is an identifiable public interest in




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the disclosure of the withheld records, and given the lack of a significant privacy interest, the court

further finds that this public interest weighs in favor of disclosure.

       Because “under Exemption 6, the presumption in favor of disclosure is as strong as can be

found anywhere in [FOIA],” Norton, 309 F.3d at 32, the court concludes that the Army Corps did

not properly apply Exemption 6 to the names and addresses on the requested distribution list, and

the withheld responsive records must be disclosed. The court DENIES the Army Corps’ motion

and GRANTS Plaintiff’s cross-motion as to Count II.

IV.    CONCLUSION

       For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED IN

PART and DENIED IN PART, and Plaintiff’s cross-motion is GRANTED.



Date: March 22, 2017

                                               Tanya S. Chutkan
                                               TANYA S. CHUTKAN
                                               United States District Judge




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