D.C. No.1:06-cv-00378-BMK Appeal from the United States District Court for the District of Hawaii Barry M. Kurren, Magistrate Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Berzon
February 15, 2011-Honolulu, Hawaii
Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.
The Freedom of Information Act, ("FOIA"), 5 U.S.C. § 552, mandates that federal agencies make their records available to the public upon request, subject to nine discretionary exemptions. See Milner v. Dep't of Navy, 131 S. Ct. 1259, 1262 (2011). This case presents two FOIA issues. The first is whether an agency fulfills its disclosure obligation by offering to supply the documents to the requester, but only in his capacity as an employee of that agency. The answer to that question is unquestionably "no." The second involves application to internal emails of FOIA Exemption 6, which provides that an agency may withhold "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).
FACTUAL AND PROCEDURAL HISTORY
Plaintiff-appellant Ronald M. Yonemoto is an employee of the Veterans Health Administration ("VHA"), a component of the defendant-appellee, the Department of Veteran Affairs ("the VA" or "the agency"). Between May 2005 and April 2006, Yonemoto submitted eight requests under the FOIA and the Privacy Act, 5 U.S.C. § 552a, primarily asking for emails to and from specified individuals. In response, the VA made a number of disclosures totaling about 1500 pages, but withheld some records in part and some in their entirety, pursuant to various FOIA exemptions. After exhausting his avenues for administrative relief, Yonemoto filed suit in the District Court for the District of Hawaii on July 11, 2006, alleging violations of both the FOIA and the Privacy Act.
Given the breadth of Yonemoto's requests and the overlap in the FOIA exemptions the VA claimed, the parties and the district court agreed that the VA would move for partial summary judgment as to one of Yonemoto's requests, the decision on which the district court would certify for interlocutory appeal under 28 U.S.C. § 1292(b). The motion for partial summary judgment concerned redactions of parts of five emails under Exemption 6. The district court granted the VA's motion for partial summary judgment, holding the agency's redactions permissible and the emails not subject to disclosure under the Privacy Act. See Yonemoto v. Dep't of Veterans Affairs ["Yonemoto I"], No. 06-CV-378, 2007 WL 1310165, at *4-6 (D. Haw. May 2, 2007). The district court then stayed the rest of the case pending Yonemoto's interlocutory appeal. Id. at *7.
A motions panel granted Yonemoto permission to appeal under 28 U.S.C. § 1292(b) in August 2007, and the appeal was calendared for oral argument on November 20, 2008.
Shortly before the argument, the VA produced the emails at issue to Yonemoto, unredacted, in response to a discovery request regarding a charge pending with the Equal Employment Opportunity Commission ("EEOC") concerning whether the VA had discriminated against Yonemoto. The interlocutory appeal was thereafter dismissed in a memorandum disposition, which stated in relevant part:
Yonemoto [has] informed the court that the VA produced the redacted materials in the discovery process of his EEOC claim. This production moots Yonemoto's claims. See Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (stating production of all nonexempt material, "however belatedly," moots FOIA claims). Yonemoto argues that the claim is not moot, because the decision would be applicable to other FOIA/Privacy Act claims pending before the district court. We disagree. The district court has not ruled on those issues. Given the disclosure of the disputed redacted materials in his EEOC action, Yonemoto may receive the remaining materials in any event. See Church of Scientology of Cal. v. Dep't of Army, 611 F.2d 738, 746 (9th Cir. 1979) (noting the availability of any alternative means of obtaining the requested information is a factor in determining whether disclosure is proper). Upon remand, the district court can determine whether Yonemoto's entire claim is moot.
Yonemoto v. Dep't of Veterans Affairs ["Yonemoto II"], 305 F. App'x 333, 334 (9th Cir. 2008) (unpub.).
Upon remand, the parties narrowed their dispute to 205 emails. See Yonemoto v. Dep't of Veterans Affairs ["Yonemoto III"], No. 06-CV-378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009). The VA permitted Yonemoto to view 190 of those emails in full, but only in his capacity as a VA employee. After viewing the 190 emails, Yonemoto withdrew his request for 33 of them. The VA then offered to provide Yonemoto unredacted copies of the 157 emails that he had seen, but, again, only "as a VA employee." The VA's Assistant Regional Counsel explained in a declaration submitted to the district court that "[t]he VA's purpose for making the emails available to Plaintiff as a VA employee was to allow Plaintiff to view the emails without requiring the VA to make the emails available to the public, as a FOIA production would." Yonemoto declined the VA's offer.
The parties again filed cross-motions for summary judgment. Still contested were the 157 emails copies of which Yonemoto had viewed in full (but did not have in unredacted form) and redactions of 15 emails that the VA had not permitted him to see in full. Of the latter group, 3 were duplicates, so 169 emails were at issue.
The district court held a hearing on the cross-motions for summary judgment on December 11, 2009. During the hearing, the district court suggested-although the VA had not argued-that the VA's offer to give the 157 emails to Yonemoto in his capacity as an employee mooted his FOIA claim to those documents. Yonemoto contested that proposition, maintaining that there would be limitations on distributing emails received as a VA employee. Confirming that assertion, the VA's attorney represented that if Yonemoto received the records as an employee, "there are restrictions on you that aren't the same as if you're getting that document as a citizen," and explained that the VA did not want to "publicize [the offered emails] to the world." Although the VA argued that it had carried its burden on summary judgment to justify the redactions, the agency never supported the district court's mootness suggestion. At the conclusion of the hearing, the district court ordered the VA to submit for an in camera review the 12 emails Yonemeoto had not seen.
Shortly thereafter, the district court issued an order granting summary judgment to the VA, holding that: (1) the VA's offer to produce the 157 emails to Yonemoto in his capacity as an employee mooted his claim as to those emails; (2) the redacted portions of the remaining 12 emails were properly withheld under Exemptions 2,*fn1 5,*fn2 and 6; and (3) Yonemoto could not obtain the emails under the Privacy Act. Yonemoto timely appealed these first two holdings, but abandoned his Privacy Act claim.
In his opening brief, Yonemoto addressed all three of the VA's claimed FOIA exemptions. The VA's answering brief, however, abandoned reliance on Exemptions 2 and 5 by notifying us that (1) the VA had recently disclosed to Yonemoto in unredacted form 3 of the 12 disputed emails, each of which had been redacted only under Exemption 2; and (2) the VA was declining to defend the remaining redactions on any basis save Exemption 6.
This appeal thus comes down to two issues: (1) whether the VA's offer of the 157 emails to Yonemoto in his capacity as an employee mooted his claim to those emails; and (2) whether the VA can withhold the redacted portions of the other 9 emails under Exemption 6.
 The FOIA's "core purpose" is to inform citizens about "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 775 (1989) (citation omitted). This purpose is accomplished by "permit[ting] access to official information long shielded unnecessarily from public view and attempt[ing] to create a judicially enforceable public right to secure such information from possibly unwilling official hands." EPA v. Mink, 410 U.S. 73, 80 (1973), superceded by statute on other grounds, as recognized by Ray v. Turner, 587 F.2d 1187, 1190-91 & n.9 (D.C. Cir. 1978). Such access, in turn, will "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted).
 At the same time, the FOIA contemplates that some information can legitimately be kept from the public through the invocation of nine "exemptions" to disclosure. See 5 U.S.C. § 552(b)(1)-(9). The exemptions are discretionary, see Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979); "are 'explicitly made exclusive,' " Milner, 131 S. Ct. at 1262 (quoting Mink, 410 U.S. at 79)-meaning that information not falling within any of the exemptions has to be disclosed; "and must be 'narrowly construed.' " Id. (quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)). Given these interpretive precepts, "[t]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7-8 (2001) (citation omitted).
When an agency chooses to invoke an exemption to shield information from disclosure, it bears the burden of proving the applicability of the exemption. See Reporters Comm., 489 U.S. at 755. An agency may withhold only that information to which the exemption applies, and so must provide all "reasonably segregable" portions of that record to the requester.
5 U.S.C. § 552(b); see Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Because facts in FOIA cases are rarely in dispute, most such cases are decided on motions for summary judgment, see Flightsafety Servs. Corp v. Dep't of Labor, 326 F3d 607, 610 (5th Cir 2003); Department of Justice Guide to the Freedom of Information Act 803 (2009 ed.).*fn3 To carry their summary judgment burden, agencies are typically required to submit an index and "detailed public affidavits" that, together, "identify[ ] the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption." Lion Raisins v. Dep't of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004). These submissions-commonly referred to as a Vaughn index*fn4 -
must be from "affiants [who] are knowledgeable about the information sought" and "detailed enough to allow court to make an independent assessment of the government's claim [of exemption]." Id. at 1079; see also 5 U.S.C. § 552(a)(4)(B) ("On complaint, the district court . . . . shall determine the matter de novo, . . . and the burden is on the agency to sustain its action.").
Our review of a grant of summary judgment in a FOIA case, however, is slightly different than for other types of cases; in essence, we treat the judgment as if it were a bench trial: We first determine, de novo, "whether an adequate factual basis exists to support the district court's decisions." Lane v. Dep't of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008). If not, we must remand for further development of the record. See Fiduccia v. Dep't of Justice, 185 F.3d 1035, 1040 (9th Cir. 1999). If such a basis does exist, "then the district court's conclusions of fact are reviewed for clear error"*fn5 -which is the way in which the proceeding is treated like a bench trial- ...