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Lewis v. Federal Aviation Administration

United States District Court, D. Oregon

January 6, 2015


Jeffrey N. Lewis, Plaintiff, Pro se, Mulino, Oregon.

For Defendants: S. Amanda Marshall, UNITED STATES ATTORNEY, District of Oregon, Kevin Danielson, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon.


Marco A. Hernandez, United States District Judge.

Plaintiff Jeffrey Lewis brings this Freedom of Information Act (FOIA) action against the Federal Aviation Administration (FAA) and its administrator Michael Huerta. Plaintiff contends that Defendants (1) improperly applied certain FOIA exemptions to redact information from documents produced by Defendants to Plaintiff, (2) failed to timely respond to his FOIA appeals, and (3) failed to timely respond to his FOIA requests.

Both Plaintiff and Defendants move for summary judgment. For the reasons explained below, I grant Defendants' motion in part and deny it in part. I grant Plaintiff's motion in part and deny it in part.


Plaintiff worked as an air traffic controller for the FAA until he was terminated in November 2008. Pl.'s Aug. 11, 2014 Decl. [ECF 31] at ¶ 3. Since then, he has filed dozens of FOIA requests with the FAA seeking a variety of documents. Id. at ¶ 6; see also Kreischer Affid. at ¶ 6 (noting that beginning in Fiscal Year 2007 to the present, Plaintiff has filed 233 initial FOIA requests and 69 administrative appeals). In his Complaint, Plaintiff challenges responses to nine appeals, the failure to make a timely determination of three appeals, and the failure to make a timely determination of two requests. Compl. at 3-4.[1]

The FAA produced records in response to Plaintiff's requests, but redacted information it considered to be exempt from production under 5 U.S.C. § 552. Specifically, it relied on exemptions for (1) individual personal privacy, (2) law enforcement purposes, and (3) attorney-client, deliberative process, and work-product privileges. In regard to Claim I, the litigation requires a determination of whether the FAA's application of those exemptions was proper. As to the other claims, the issues as raised in the Complaint are whether the FAA made a timely response to an initial request or an appeal. This Court held oral argument on the motions on November 17, 2014. At oral argument, Plaintiff orally dismissed all claims except his challenges to two particular FOIA requests: FOIA Request No. 2012-2082 and FOIA Request No. 2012-7031. Thus, this Opinion addresses only Defendants' responses to those two requests.


Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of " 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present " specific facts" showing a " genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).

If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


I. Freedom of Information Act

Congress enacted the FOIA to " facilitate public access to Government documents." U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). The FOIA is a broad disclosure statute which evidences a strong public policy in favor of public access to information in the possession of federal agencies. Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997); see also Milner v. Dep't of Navy, 562 U.S. 562, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (FOIA grants access to government archives for public dissemination of " official information long shielded unnecessarily from public view" ) (internal quotation marks omitted).

Under FOIA, an agency must make government records available to the public upon a properly made request. 5 U.S.C. § 552(a)(3)(A). However, the agency need not disclose documents or information falling within any of nine statutory exemptions. 5 U.S.C. § 552(b)(1)-(9). Because of the " strong presumption in favor of disclosure," the exemptions are narrowly construed and the agency bears the burden of justifying the withholding of information under an exemption. Lahr v. Nat'l Transp. Safety Bd. 569 F.3d 964, 973 (9th Cir. 2009).

To meet its burden of establishing that an exemption applies and that it properly withheld a document, agencies typically submit a declaration, or Vaughn index, that identifies the documents withheld, identifies the FOIA exemption, and gives a particularized explanation of how the exemption applies to each document. Lahr, 569 F.3d at 989 (citing Vaughn v. Rosen, 484 F.2d 820, 157 U.S.App.D.C. 340 (D.C. Cir. 1973)). The Vaughn index may also contain brief or categorical descriptions in order not to reveal the information the agency wants to protect. ACLU v. CIA, 710 F.3d 422, 432, 404 U.S.App.D.C. 235 (D.C. Cir. 2013) (noting that the " district court has considerable latitude to determine [the] requisite form and detail [of the Vaughn index] in a particular case" ). An agency may submit a declaration in combination with, or in lieu of, a Vaughn index. Id. The materials provided by the agency may take a variety of forms, provided they give the court a reasonable basis upon which to evaluate the claimed exemption. Id. at 433.

II. Declarations and Vaughn Index in this Case

In support of their motion for summary judgment, Defendants rely on Exhibit 1 to the Declaration of Kevin Danielson which contains copies of all the FOIA requests at issue in this case. Additionally, Defendants submit the Declaration of Jeb Kreischer, a FOIA Management Analyst at the FAA. Kreischer's Declaration provides explanations of the types of records requested by Plaintiff and, by request number, an explanation of the FAA's response and the justification for its exemptions. Attached as Exhibit 1 to Kreischer's Affidavit is the FAA's Vaughn index.

Plaintiff relies on his own August 11, 2014 Declaration to which forty-three pages of documents are appended. The documents are not identified or authenticated. Some appear to have editorial comments written on them. Plaintiff also refers to his August 8, 2013 Memorandum which consists of fifty-eight pages, with an additional 205 pages in exhibits. None of the exhibits in the August 8, 2013 Memorandum have been authenticated. He also submitted a response to Defendant's motion which asserts facts unsupported by a declaration, deposition, or authenticated exhibits. Finally, he relies on the affidavit of a current FAA employee, Don Hiebert. Despite Plaintiff's failure to properly identify or authenticate the documents submitted, I have nonetheless reviewed and considered them.

III. Relevant Exemptions

Defendants rely on three different exemptions in support of the agency's refusal to provide completely unredacted copies of the requested documents. I address the general standards for each of these three exemptions here.

A. Exemption 6 - Personal Privacy

Under 5 U.S.C. § 552(b)(6), an agency is allowed to withhold " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" In a 2013 case, the Ninth Circuit explained that the court asks " two questions in deciding whether an agency has properly withheld records or information under Exemption 6." Prudential Locations, LLC v. U.S. Dep't. of Hous. & Urban Dev., 739 F.3d 424, 429 (9th Cir. 2013). First, the court asks if " the document qualifies under the heading of 'personnel and medical files and similar files.'" Id. (quoting section 552(b)(6)). Second, the court asks " whether production of the document, ...

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