Hum. Rights Def. Ctr. v. U.S. Park Police, No. 23-5236, 2025 WL 286516 (D.C. Cir. Jan. 24, 2025) (Pillard, J.)

Hum. Rights Def. Ctr. v. U.S. Park Police, No. 23-5236, 2025 WL 286516 (D.C. Cir. Jan. 24, 2025) (Pillard, J.)

Re:  Request for records concerning certain lawsuits brought against defendant

Disposition:  Reversing in part, vacating in part, and remanding in part district court’s grant of government’s motion for summary judgment

• Exemption 6; Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing & Relief; Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit relates that “[t]he district court ruled that the Park Police correctly withheld the officer names under Exemption 6.”  “The court then invoked its inherent authority to manage judicial proceedings as justification to issue a clawback order for the erroneously produced names.”  “Those rulings were erroneous.”  “By putting forth generic and conclusory justifications for its withholdings, the Park Police failed to satisfy its burden under Exemption 6 and the FOIA Improvement Act to show that release of the officer names would implicate a substantial privacy interest.”  “And the district court’s non-statutory remedy for the Park Police’s inadvertent disclosures was not a valid exercise of inherent judicial authority because its primary purpose was to fill a perceived gap in the FOIA statute, not to protect the exercise of any core judicial authority.”  “[The court] therefore vacate[s] the clawback order and remand[s] for the release of the non-exempt officer names.”
  
  “As relevant here, the Park Police withheld the names of four police officers claimed to have harmed or witnessed harm to members of the public.”  “The Park Police [also] claims that it accidentally disclosed two more names – one of an EEO claimant and another of a tort claimant – due to errors in its redaction process.”  The court finds that “[t]he Park Police has not satisfied its burden to show that disclosure of the officer names would compromise a substantial privacy interest.” “Because the agency’s showing fails at step one of the Exemption 6 analysis, we need not consider whether the public interest in disclosure outweighs the individual privacy interest.” “The privacy assertions contained in the Park Police’s Vaughn index and declarations are wholly conclusory, lacking even minimal substantiation of the officers’ privacy interest or the potential harm from disclosing their names.”  “Indeed, the agency acknowledges that ‘the government’s declarations did not specifically analyze the nature of the privacy interest at issue’ in the potential release of the individual officers’ names.”  “Generalities are not enough; showing that a substantial invasion of privacy will occur if the officer names are released requires ‘reasonable specificity of detail rather than merely conclusory statements.’”  “In her declaration, the Park Police FOIA Officer stated that the agency redacted the information pursuant to Exemption 6 ‘because release of the information would constitute an unwarranted invasion of personal privacy due to the nature of the complaints.’”  “The FOIA Officer also stated that the agency determined that the officers ‘had a significant privacy interest in their identities and that their privacy interests outweighed the release of the information, and that release of the information would not shed light on the activities of’ the Park Police.” “Those conclusory assertions fall short.”  “Unlike agencies’ showings in cases in which we have sustained withholdings under Exemption 6, the Park Police fails to provide any concrete basis to conclude that release of these officers’ names raises threats ‘more palpable than mere possibilities.’”
  
  “[The court’s] holding under Exemption 6 – that the Park Police failed to make a reasonably detailed showing that disclosure would compromise a substantial privacy interest – equally supports a determination of noncompliance with the FOIA Improvement Act.”  “In the context of other FOIA exemptions, [the court has] held that whether a record falls within an exemption and whether nondisclosure of that record is permissible under the Improvement Act’s foreseeable harm standard are ‘distinct, consecutive inquiries.’”  “Here, those formally distinct inquiries substantively overlap.”  “The analysis required by the Improvement Act’s foreseeable-harm rule is much the same as the analysis [the court] already conducted in holding that the Park Police failed to make the reasonably detailed showing that disclosure would compromise a substantial privacy interest required by Exemption 6.” “Whether under Exemption 6, or alternatively under the Improvement Act, ‘speculative or abstract fears,’ like those the Park Police alludes to in its Vaughn index and declaration, do not establish a foreseeable harm sufficient to justify withholding the officer names at issue.”
  
  “[The requester] argues that a ruling that the Park Police failed to justify withholding the officers’ names warrants reversing the summary judgment order and holding that it is entitled to the information.”  “For its part, the Park Police asserts that remand to develop the record, not reversal, would be the appropriate response to an inadequate showing of foreseeable harm.” “The Park Police bases its request on ‘an interim development in applicable legal doctrine.’”  “When it prepared the affidavits and Vaughn index in support of summary judgment, the Park Police notes, [the court] had not yet decided Reporters Committee v. FBI – a case the Park Police characterizes as having ‘definitively construed for the first time the FOIA Improvement Act’s requirement that in withholding information an agency must explain how disclosure would harm an interest protected by a FOIA exemption.’”  “There was no change in the law bearing on this case.”  “It should have been ‘apparent from the statutory text alone’ that the Improvement Act requires a ‘particularized inquiry into what sort of foreseeable harm would result from the material’s release.’”
  
  “Because the Park Police did not meet its threshold burden under Exemption 6 and, by the same token, did not demonstrate that foreseeable harm would ensue from release of the withheld names, the Park Police was not entitled to summary judgment.”  “[The court] cannot credit the Park Police’s assertion of a change in applicable law, and it made no other argument for an opportunity to supplement its showing of foreseeable harm.”  “[The court] accordingly reverse[s] and remand[s] for the district court to enter an order directing the Park Police to remove the redactions from the officer names in the documents at issue and release them to [the requester].”
  
  Finally, the court “review[s] the district court’s clawback order.”  “As the district court correctly noted, FOIA does not provide for the compelled return or destruction of inadvertently produced information.”  “The court instead invoked ‘implied’ or inherent judicial power to create a mechanism for doing so.”  “The district court’s order was not an exercise of Article III courts’ well-established authority to manage judicial proceedings.”  “The court concluded that, because ‘the claimants’ names are covered by Exemption 6, and there is no discernable public interest in having the names of private citizens disclosed,’ it was justified in issuing the clawback order.”  “The primary function of the order, then, was not to support a core judicial authority, but to fill a perceived hole in the FOIA statute by enabling the government to put the proverbial cat back in the bag.”  “On appeal, the Park Police seeks to frame the gap-filling clawback order as a means of effectuating the court’s judicial authority under FOIA.”  “The Park Police contends that, once the Center filed suit in federal court to enforce its entitlement to disclosure under FOIA, the court could use its inherent authority to redress the agency’s mistaken disclosures.”  “That argument cannot be squared with the terms of FOIA and the structure of its disclosure process.”  “Congress designed FOIA to function largely without court compulsion.”  “Nothing suggests the agency acquires an otherwise absent clawback remedy just because a FOIA requester resorts to litigation to enforce an unfulfilled FOIA entitlement.”  “The Park Police draws an analogy to Federal Rule of Civil Procedure 26(b)(5)(B), which requires that a party promptly ‘return, sequester, or destroy’ information inadvertently produced in discovery despite a valid claim of privilege or protection.”  “The civil discovery rules thereby explicitly address the risk that, in reviewing and disclosing large volumes of information, mistakes may be made.”  “The Park Police acknowledges that Rule 26(b)(5)(B) is inapplicable here yet contends that ‘[a] court may address the same problems inherent in responding to FOIA requests’ through a clawback order.”  “But the comparison hurts more than it helps.”  “A provision akin to Rule 26(b)(5)(B) could have been but was not included in FOIA.”  “That alone defeats any persuasive effect of the Park Police’s analogy.”  “Congress presumably acted deliberately in omitting general clawback authority from FOIA.” “Unlike litigation, which is an adversarial process to determine the parties’ rights and obligations, FOIA is a primarily administrative regime designed to advance governmental transparency.” “[The court] acknowledge[s] that the Tenth Circuit recently upheld a district court order instructing a FOIA complainant to return or destroy inadvertently disclosed documents.”  “The Tenth Circuit, however, did not consider the important limitations on courts’ inherent authority that guide our decision today.”
  
  “Finally, [the requester] and its amici curiae also claim that the First Amendment prevents the district court from barring the use or dissemination of FOIA-exempt material a FOIA requester lawfully obtained due to the government's mistake.” “[The court does] not reach that issue because our non-constitutional analysis is dispositive.”