Argued
and Submitted June 5, 2017 Pasadena, California
Appeal
from the United States District Court for the District of
Arizona Roslyn O. Silver, Senior District Judge, Presiding
D.C. No. 2:15-cv-00067-ROS
Michael Bekesha (argued) and James F. Peterson, Judicial
Watch Inc., Washington, D.C., for Plaintiff-Appellant.
Robert
D. Kamenshine (argued) and Matthew Collette, Appellate Staff;
John S. Leonardo, United States Attorney; Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendant-Appellee.
Before: Sidney R. Thomas, Chief Judge, Stephen Reinhardt,
Circuit Judge, and Edward R. Korman, [*] District Judge.
SUMMARY
[**]
Freedom
of Information Act
The
panel affirmed the district court's summary judgment in
favor of the United States, and the district court's
finding that the government had properly withheld former
detainees' names under Freedom of Information Act
("FOIA") Exemption 7(C).
Edward
Tuffly, the treasurer of the National Border Patrol Council,
the union for Border Patrol agents, sought to compel under
FOIA the disclosure of the names of 149 non-citizens who were
released from detention pending a final determination whether
they will be removed.
The
panel held that the released detainees had a substantial
privacy interest that outweighed the public interest in the
disclosure of their names. Specifically, the panel held that
so long as the disclosure of the information would give rise
to a potential, nontrivial invasion of personal privacy,
there was a privacy interest to be balanced against the
public interest under FOIA Exemption 7(c). In weighing the
public interest versus the privacy interest, the panel held
that the privacy interests in this case were particularly
strong, both because of the context of immigration
enforcement and because of the private information already
disclosed by the government that would be linked to the names
of the released individuals; and the public interest in
evaluating the effects of government actions would be
advanced only minimally by information that Tuffly sought.
OPINION
REINHARDT, Circuit Judge:
Edward
"Bud" Tuffly, the treasurer of the National Border
Patrol Council, the union for Border Patrol agents, seeks to
compel, under the Freedom of Information Act, the disclosure
of the names of 149 non-citizens who were released from
detention pending a final determination whether they will be
removed-names that could be linked to other personal
information that has already been released. In opposing
release of the names, the government invoked FOIA's
personal privacy exemptions, finding that the former
detainees had a privacy interest in the non-disclosure of
their names, and that Tuffly did not assert a countervailing
public interest. Tuffly disagreed, and filed suit in the
district court. On summary judgment, the district court found
that the government had properly withheld the former
detainees' names under FOIA Exemption 7(C). Tuffly,
represented by Judicial Watch, appealed. We hold that the
released detainees have a substantial privacy interest that
outweighs the public interest in the disclosure of their
names, and affirm.
I.
In
February 2013, the Department of Homeland Security (DHS)
announced that, due to "fiscal uncertainty, " it
was releasing from detention a number of non-citizens who
were in removal proceedings. The Department issued a
statement reading:
As fiscal uncertainty remains over the continuing resolution
and possible sequestration, ICE has reviewed its detained
population to ensure detention levels stay within ICE's
current budget. Over the last week, ICE has reviewed several
hundred cases and placed these individuals on methods of
supervision less costly than detention. All of these
individuals remain in removal proceedings. Priority for
detention remains on serious criminal offenders and other
individuals who pose a significant threat to public safety.
The
Department also stated that "[t]he detainees who've
been released can be characterized as non-criminals and other
low risk offenders who do not have serious criminal histories
that would subject them to mandatory detention. Detainees
with serious criminal histories are a detention priority and
have not been released."
Following
the announcement by DHS, USA Today filed a FOIA
request asking for information about the detainees released
pursuant to the new policy. In response, the government
provided records demonstrating that two-thirds of the 2, 200
individuals who were released had no criminal records. The
records also showed, however, that several of the released
detainees had been charged with more serious crimes,
including kidnapping and homicide, although they did not
indicate whether any of them had actually been convicted. The
records also did not disclose the former detainees' names
or other identifying information. In October 2014, USA
Today published an article discussing the information
contained in the released records.[1]
The
next month, inspired by the publication of the USA
Today article, Tuffly filed a FOIA request with
ICE.[2]
Tuffly sought the "[r]ecords sufficient to identify all
ICE detainees released in late February or early March
2013" from five Arizona detention facilities. Tuffly
also requested records sufficient to identify the date of
each detainee's release, his criminal history or criminal
charges at the time of release, the methods of supervision to
which he was subjected, and information about whether the
detainee appeared for subsequent removal proceedings or was
removed from the United States. In his FOIA request, Tuffly
stated that this information would "enable [him], other
members of the public and the media to investigate public
records pertaining to the detainees' prior convictions
and arrests and potentially shed light on ICE's decision
to release these detainees." Tuffly also asserted that
the disclosure would "shed light on the risk to the
public posed by the detainees' release and ICE's
performance of its duties and
responsibilities."[3]
DHS
complied with Tuffly's request, but redacted the names,
file numbers, and case identification numbers of the 149
released detainees identified in the records. In doing so,
the agency invoked FOIA Exemptions 6 and 7(C), which permit
the government to withhold personnel or law enforcement files
that implicate personal privacy.[4] The government explained
that in applying the exemptions, it had "considered the
privacy interests of the aliens in remaining free from
embarrassment, humiliation, annoyance, harassment,
intimidation, un-official questioning, retaliation or
physical harm for having been detained in a detention
facility." Moreover, the government stated that Tuffly
"failed to articulate any public interest that could be
advanced by releasing the [personal] information, " and
that "the redaction was limited to the name[s] of the
individual[s] or other personally identifiable information
which, if released, would not shed light on the operations or
activities of ICE."
In
January 2015, Tuffly filed a lawsuit in the district court,
seeking the release of the names of the 149 individuals. The
district court found that releasing their names "would
constitute a significant invasion of privacy." The court
then concluded that Tuffly failed to demonstrate that the
public interest in obtaining the names outweighed the privacy
interests at stake. Finding that the government properly
withheld the names of the ...