Prudential Locations LLC v. U.S. Department of Housing & Urban Development

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRUDENTIAL LOCATIONS LLC, a No. 09-16995

Hawaii limited liability company,

Plaintiff-Appellant, D.C. No.

1:09-cv-00128-

v. SOM-KSC

U.S. DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Hawai’i

Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted

February 15, 2011—Honolulu, Hawaii

Reargued and Resubmitted

March 9, 2012—Pasadena, California

Filed October 9, 2013

Before: A. Wallace Tashima, William A. Fletcher,

and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge Berzon

2 PRUDENTIAL LOCATIONS LLC V. HUD

SUMMARY*

Freedom of Information Act

The panel affirmed the district court’s summary judgment

in favor of the U.S. Department of Housing and Urban

Development and held that Exemption 6 of the Freedom of

Information Act justified the agency’s decision to redact

identifying information.

Plaintiff filed a Freedom of Information Act (“FOIA”)

request with HUD, asking it to disclose the names of the

individuals who had complained to HUD that plaintiff had

violated the Real Estate Settlement Procedures Act. The panel

held that the identity of a person complaining to a federal

agency about a violation of law is protected from disclosure

under Exemption 6 of FOIA.

Judge Berzon dissented, and would remand to the district

court for further factual development because the present

record is inadequate to confirm the existence of any personal

privacy interest to justify invocation of FOIA’s Exemption 6.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PRUDENTIAL LOCATIONS LLC V. HUD 3

COUNSEL

Jason H. Kim (argued), Schneider Wallace Cottrell Brayton

Konecky, LLP, San Francisco, California; Paul Alston,

Alston Hunt Floyd & Ing, Honolulu, Hawaii, for Plaintiff-

Appellant.

Steve Frank (argued), United States Department of Justice,

Civil Division, Washington, D.C., for Defendant-Appellee.

OPINION

PER CURIAM:

The question in this case is whether the identity of a

person complaining to a federal agency about a violation of

law is protected from disclosure under Exemption 6 of the

Freedom of Information Act (“FOIA”). Plaintiff Prudential

Locations (“Prudential”) filed a FOIA request with the U.S.

Department of Housing and Urban Development (“HUD”),

asking it to disclose the names of the individuals who had

complained to HUD that Prudential had violated the Real

Estate Settlement Procedures Act (“RESPA”). (For

convenience, we will use the plural even though it is possible

that the two complaints were written by the same person.)

HUD invoked Exemption 6 to justify redacting the documents

to conceal the authors’ identities. Exemption 6 covers

“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). The district court

held that Exemption 6 justifies the agency’s decision to redact

identifying information. Prudential Locations LLC v. U.S.

4 PRUDENTIAL LOCATIONS LLC V. HUD

Dep’t of Housing & Urban Dev., 646 F. Supp. 2d 1221 (D.

Hawai’i 2009). We affirm.

A. Background

HUD is the agency responsible for administering and

enforcing RESPA, 12 U.S.C. §§ 2601–2617. RESPA

prohibits referral fees for real estate settlement services: “No

person shall give and no person shall accept any fee,

kickback, or thing of value [for referring] business incident to

or a part of a real estate settlement service involving a

federally related mortgage loan.” Id. § 2607(a). HUD

initiated two investigations of Prudential when it received

communications, sent five years apart, alleging that

Prudential gave referral awards in violation of RESPA.

In the first communication, the author wrote a one-page

letter dated July 7, 2003, (the “2003 Letter”) alleging that

“Prudential Locations Real Estate Salespersons get monetary

kickbacks ($$,$$$) for the amount of business that is referred

to Wells Fargo.” The author explained that “Wells Fargo”

was shorthand for Wells Fargo Home Mortgage of Hawaii, a

joint venture formed by Wells Fargo Bank and Prudential

Locations. The author attached an article published on

January 26, 2003, in the Honolulu Star-Bulletin, quoting it as

saying that “agents from firms . . . throughout Hawaii . . .

were eligible to win [a] Mercedes by referring at least $1

million in loans to Wells Fargo in 2002.” The author asked,

“Is it a violation of RESPA for real estate agents to receive

compensation for steering business to a specific Lender?”

The author stated that he or she anticipated that HUD would

provide a written reply. The author neither asked for

anonymity nor authorized HUD to reveal his or her identity.

PRUDENTIAL LOCATIONS LLC V. HUD 5

In response to the letter, HUD opened an investigation.

HUD discovered, consistent with the letter’s allegations, that

Prudential rewarded agents with “prizes” in return for

referring over $1 million of business to Wells Fargo. The

prizes included a Mercedes-Benz lease and vacation packages

to Thailand and Las Vegas. HUD closed the investigation in

2005 after entering into a settlement agreement under which

Prudential agreed to stop violating RESPA and to pay a

penalty of $48,000.

In the second communication, the author wrote HUD an

email dated January 19, 2008 (the “2008 Email”). The

author, who was aware of the $48,000 penalty imposed under

the 2005 settlement agreement, wrote that Prudential was

“blatantly violating RESPA laws again.” The author alleged

that Prudential was “charging an extra fee for an in house

transaction coordinator EVERY TIME to agents that do not

use ($75 extra fee) Wells Fargo (affiliated company of

Prudential Locations LLC) and ($50 extra fee) Island Title

(affiliated company of Prudential Locations LLC).” The

author wrote that an agent from Prudential gave the author

this information and “expressed concern that his company

was violating RESPA laws again.” The author of the 2008

Email asked HUD to keep his or her name anonymous.

In response to the 2008 Email, HUD opened a second

investigation. In March 2009, it concluded that the evidence

did not substantiate the email’s allegations and closed the

investigation.

In June 2008, while the second investigation was

underway, Prudential made a FOIA request for HUD’s

records of the two investigations. Prudential specifically

asked HUD to produce information “to show the identity of

6 PRUDENTIAL LOCATIONS LLC V. HUD

all parties who provided information to HUD relating to the

initiation” of both HUD investigations. In March 2009, HUD

produced roughly four-hundred pages of responsive

documents.

HUD produced the 2003 Letter and the 2008 Email in

response to the FOIA request, but it redacted information in

both documents in order to conceal the authors’ identities.

HUD redacted the letterhead and the signature line of the

2003 Letter. HUD produced a redacted version of the 2008

Email as part of its initial response, and it turned over a less

redacted version of the email during the course of this

litigation. In the less redacted version, HUD redacted the

“From” field in the email header, the first sentence, and the

author’s contact information. HUD also redacted language

after the phrase “but I would like to remain anonymous.” The

length of this redaction suggests that it contained ten or

eleven average-length words. Its location in the email

suggested that the redacted language explained why the

author desired anonymity.

In a letter to Prudential’s attorney, HUD justified the

redactions under Exemption 6. HUD explained that

“[r]elease of this information would constitute an

unwarranted invasion of personal privacy” outweighing any

“interest of the general public in reviewing these portions of

government documents.”

Shortly thereafter, Prudential brought suit in federal

district court specifically seeking disclosure of the identities

of the authors of the two communications. Prudential moved

for summary judgment. HUD filed a cross-motion for

summary judgment that included an affidavit from Ivy

Jackson, HUD’s Director of the Office of RESPA and

PRUDENTIAL LOCATIONS LLC V. HUD 7

Interstate Land Sales. Jackson described HUD’s general

policy of concealing the identity of any complainant “whether

or not the complainant affirmatively authorized the release

[of his or her name].” However, it appears that HUD may

release the complainant’s name under certain circumstances

if the “person has specifically authorized release of his or her

name.” She explained that HUD relies on “industry

competitors and insiders” as sources of information to detect

RESPA violations. She feared that industry insiders would be

“vulnerable to retaliation, i.e. loss of employment, loss of

business and legal action,” if HUD were forced to disclose

their identities. Jackson stated that when she speaks before

industry groups, she reminds industry insiders of HUD’s

policy of confidentiality.

The district court entered summary judgment in favor of

HUD, holding that the redacted information was protected

from disclosure under Exemption 6. Prudential Locations,

646 F. Supp. 2d at 1228. The court balanced the privacy

interest of the individuals whose names were redacted against

the public’s interest in disclosure. Id. at 1226. On the

privacy-interest side, the court found that complainants

reporting RESPA violations could be subject to retaliation.

Id. at 1226–27. On the public-interest side, the court found

that disclosure of the complainants’ identities would not

reveal significant and otherwise unavailable information

about HUD’s activities. Id. at 1227. The court also found

that Prudential provided no evidence indicating that the

identity of complainants would reveal any misconduct or bias

on the part of HUD. Id.

After initial argument in this case, we reversed the district

court, holding that HUD could not redact identifying

information under Exemption 6, absent an additional showing

8 PRUDENTIAL LOCATIONS LLC V. HUD

concerning the identity of the complainants and the privacy

interests that were likely to be infringed. Prudential

Locations LLC v. U.S. Dep’t of Housing & Urban Dev.,

648 F.3d 768 (9th Cir. 2011). On the government’s petition

for panel rehearing, we ordered the case reargued. We now

affirm.

B. Standard of Review

“[A] two-step standard of review applies to summary

judgment in FOIA cases. The court first determines under a

de novo standard whether an adequate factual basis exists to

support the district court’s decisions. If an adequate factual

basis exists, then the district court’s conclusions of fact are

reviewed for clear error, while legal rulings, including its

decision that a particular exemption applies, are reviewed de

novo.” Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th

Cir. 2008) (internal citations omitted).

C. Discussion

FOIA grants access to government archives for public

dissemination of “‘official information long shielded

unnecessarily from public view.’” Milner v. Dep’t of Navy,

131 S. Ct. 1259, 1262 (2011) (quoting EPA v. Mink, 410 U.S.

73, 80 (1973)). 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. Id. § 552(b)(1)–(9). The

agency bears the burden of justifying the withholding of

information under an exemption. Id. § 552(a)(4)(B).

PRUDENTIAL LOCATIONS LLC V. HUD 9

Exemption 6 allows an agency to withhold “personnel and

medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal

privacy.” Id. § 552(b)(6). We ask two questions in deciding

whether an agency has properly withheld records or

information under Exemption 6. First, we ask whether the

document qualifies under the heading of “personnel and

medical files and similar files.” Id. Second, we ask whether

production of the document, or information contained therein,

“would constitute a clearly unwarranted invasion of personal

privacy.” Id.; see, e.g., Elec. Frontier Found. v. Office of the

Dir. of Nat’l Intelligence, 639 F.3d 876, 886 (9th Cir. 2010);

Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv.,

524 F.3d 1021, 1024 (9th Cir. 2008).

1. “Personnel and Medical Files and Similar Files”

Exemption 6 was “‘intended to cover detailed

Government records on an individual which can be identified

as applying to that individual.’” U.S. Dep’t of State v. Wash.

Post Co., 456 U.S. 595, 602 (1982) (quoting H.R. Rep. No.

89-1497, at 11, reprinted in 1966 U.S.C.C.A.N. 2418, 2428).

“Information unrelated to any particular person presumably

would not satisfy the threshold test.” Id. at 602 n.4. The

Supreme Court has concluded that the phrase “similar files”

in Exemption 6 has a “broad, rather than a narrow, meaning.”

Id. at 600. “Similar files” include files containing citizenship

information on specific individuals, id. at 602; reports on

interviews with Haitian nationals involuntarily returned to

Haiti, U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991);

a report analyzing an agency’s response to a wildfire, Forest

Serv. Emps., 524 F.3d at 1024; and an “Excelsior list” of

names and addresses of employees eligible to vote in a union

10 PRUDENTIAL LOCATIONS LLC V. HUD

representation election, Van Bourg, Allen, Weinberg & Roger

v. NLRB, 728 F.2d 1270, 1273 (9th Cir. 1984).

The district court in this case held that the 2003 Letter and

the 2008 Email are “similar files” within the meaning of

Exemption 6. Prudential Locations, 646 F. Supp. 2d at 1226.

We are skeptical that a communication sent by an individual

to a federal enforcement agency complaining about illegal

business activity is sufficiently “similar” to a “personnel or

medical . . . file” of that individual for the communication to

qualify under Exemption 6. We recognize that the district

court’s holding has out-of-circuit support. See, e.g., Lakin

Law Firm, P.C. v. Fed. Trade Comm’n, 352 F.3d 1122 (7th

Cir. 2003) (upholding redaction under Exemption 6 of

identities of individuals who complained to the FTC about

illegal business activity); Strout v. U.S. Parole Comm’n,

40 F.3d 136 (6th Cir. 1994) (upholding redaction under

Exemption 6 of identity of individuals who wrote to the

Parole Commission opposing Strout’s parole). Indeed, our

own circuit’s decision in Forest Service Employees,

upholding redaction of employees’ names from a report on a

forest fire prepared by the Forest Service, provides some

support for the district court’s holding. See 524 F.3d at 1024.

Prudential has not contested on appeal the holding that the

2003 Letter and 2008 Email are “similar files” under

Exemption 6. We therefore assume without deciding that the

2003 Letter and 2008 Email are “similar files” within the

meaning of Exemption 6. See Elec. Frontier Found.,

639 F.3d at 886 (analyzing under Exemption 6 redaction of

identities of lobbyists from communications sent by the

lobbyists to federal agencies in attempts to influence

legislation; noting that “this may be a closer question than the

government describes”; and assuming without deciding that

PRUDENTIAL LOCATIONS LLC V. HUD 11

the communications were “similar files” in the absence of

objection by the requesting party).

2. “Clearly Unwarranted Invasion of Personal Privacy”

The second requirement under Exemption 6 is that

disclosure of the information “would constitute a clearly

unwarranted invasion of personal privacy.” § 552(b)(6). To

answer this question, “we must balance the privacy interest

protected by the exemptions against the public interest in

government openness that would be served by disclosure.”

Elec. Frontier Found., 639 F.3d at 886; see also Ray,

502 U.S. at 175.

(i) Cognizable Personal Privacy Interest

To withhold information under Exemption 6, an agency

must show that “some nontrivial privacy interest” is at stake.

U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 501 (1994). If

only a trivial privacy interest is implicated, then Exemption

6 cannot apply. But if there is a “nontrivial privacy interest,”

then the agency must balance the individual’s interest in

personal privacy against the public’s interest in disclosure.

See Forest Serv. Emps., 524 F.3d at 1027 (“‘[S]ome

nontrivial privacy interest’ is sufficient to justify the

withholding of information under Exemption 6 unless the

public interest in disclosure is sufficient to outweigh it.”

(emphasis omitted)); Multi Ag Media LLC v. Dep’t of Agric.,

515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (once a court finds

“anything greater than a de minimis privacy interest,” it must

then address “whether the public interest in disclosure

outweighs the individual privacy concerns” (internal

quotation marks omitted)).

12 PRUDENTIAL LOCATIONS LLC V. HUD

A broad range of personal privacy interests are cognizable

under FOIA, including under Exemption 6. The Court has

emphatically rejected a “cramped notion of personal privacy.”

U.S. Dept. of Justice v. Reporters Comm. for Freedom of

Press, 489 U.S. 749, 763 (1989). Individuals not only have

an obvious privacy interest in being free from retaliation,

harassment, embarrassment, or stigma. Ray, 502 U.S. at

176–77; Forest Serv. Emps., 524 F.3d at 1026. They also

have a privacy interest in simply “keeping personal facts

away from the public eye.” Reporters Comm., 489 U.S. at

769. “[P]rivacy encompass[es] the individual’s control of

information concerning his or her person.” Id. at 763.

In Ray, the Supreme Court held that Exemption 6 allowed

the State Department to redact the names of Haitian nationals

interviewed by the agency after they were involuntarily

returned to Haiti. Ray, 502 U.S. at 171. The Court noted that

disclosure of the identities of those who cooperated with the

State Department investigation “could subject them or their

families to embarrassment in their social and community

relationships.” Id. at 176 (internal quotation marks omitted).

The Court gave “great weight” to the interviewees’ privacy

interest in being free “from any retaliatory action that might

result from a renewed interest in their aborted attempts to

emigrate,” even though it was “impossible to measure” the

danger of retaliation or other mistreatment. Id. at 176–77.

The Court emphasized that the interviewees “might have been

willing to discuss private matters that he or she would not

otherwise expose to the public” because they had secured an

“assurance of confidentiality.” Id. at 177.

Our court has also upheld the non-disclosure of

identifying information under Exemption 6. In Forest

Service Employees, a “public interest watchdog organization”

PRUDENTIAL LOCATIONS LLC V. HUD 13

requested release of a report prepared by the U.S. Forest

Service. 524 F.3d at 1023. The report contained a detailed

narrative of the Service’s heavily criticized response to a

wildfire, and it concluded that the response contributed to the

fire. Id. The Service released the report but redacted under

Exemption 6 the names of its low- and mid-level employees

identified in the report. Id. at 1023, 1026. We held that the

redactions were justified under Exemption 6, recognizing as

cognizable privacy interests the “potential for harassment,”

“embarrassment,” and “stigma” that would arise from public

association with the incident. Id. at 1026. Among other

things, we noted that the plaintiff organization planned to

contact the employees once their identities were disclosed,

and that the media and others would likely contact the

employees as well. Id.

Similarly, in Lahr v. National Transportation Safety

Board, 569 F.3d 964 (9th Cir. 2009), the National

Transportation Safety Board released documents obtained

during an investigation of the midair explosion of TWA

Flight 800, but redacted under Exemptions 6 and 7(C) the

names of eyewitnesses and investigating officers. We wrote

that “protection from [unwanted contact by third parties]

facilitated by disclosure of a connection to government

operations and investigations is a cognizable privacy interest

under Exemptions 6 and 7(C).” Id. at 976. Relying on Forest

Service Employees, we held that the identities of both the

eyewitnesses and FBI investigators were protected from

disclosure. Id. at 976–78.

In some of these cases, the affected individuals had

received an assurance of confidentiality from the government.

Such an assurance is neither a necessary, nor a necessarily

sufficient, condition for the existence of a cognizable

14 PRUDENTIAL LOCATIONS LLC V. HUD

personal privacy interest under Exemption 6. See Ray,

502 U.S. at 177. But as the Court made clear in Ray, such an

assurance is a relevant factor. See id. Here, the affidavit of

HUD official Jackson tells us that HUD has a publicly

announced policy of preserving the confidentiality of

individuals who complain to the agency about violators of

RESPA. We recognize that only the author of the 2008 Email

specifically requested anonymity. But in light of the repeated

public pronouncements of HUD’s confidentiality policy, we

conclude that the authors of both the 2003 Letter and 2008

Email had reasonable expectations that HUD would protect

their confidentiality even without a specific request that it do

so.

Given the circumstances of this case, we conclude that the

authors of the 2003 Letter and 2008 Email have cognizable

personal privacy interests under Exemption 6.

(ii) Personal Privacy Interest and Public Interest in

Disclosure

To determine whether releasing the identities of the

authors of the letter and email “would constitute a clearly

unwarranted invasion of personal privacy,” we balance the

interest in personal privacy against the public interest in

disclosure. In performing that balancing, we “may properly

discount . . . the probability” of an invasion of personal

privacy. Dep’t of Air Force v. Rose, 425 U.S. 352, 380

(1976). But the invasion of a personal privacy interest may

be “clearly unwarranted” even when the invasion of privacy

is far from a certainty, as demonstrated by two recent cases.

In Lahr, we upheld the application of Exemption 6 to protect

the identities of eyewitnesses to the explosion of TWA Flight

800 when there was a “potential for unwanted contact by

PRUDENTIAL LOCATIONS LLC V. HUD 15

third parties, including the plaintiff [an individual interested

in the cause of the explosion], media entities, and commercial

solicitors.” Lahr, 569 F.3d at 975 (emphasis added).

Similarly, in Forest Service Employees, we upheld the

application of Exemption 6 because of the “potential for

harassment” by “the media, curious neighbors, and [the

plaintiff organization],” and because releasing the employees’

identities “may also subject them to embarrassment and

stigma.” Forest Serv. Emps., 524 F.3d at 1026 (emphasis

added).

The district court concluded that revealing the identities

of the authors of the 2003 Letter and 2008 Email would likely

invade the authors’ privacy interests. Prudential Locations,

646 F. Supp. 2d at 1226–27. We agree with that conclusion.

The authors of the two communications could easily be

adversely affected if their identities become known. Given

the nature of their communications, they appear to have

inside knowledge of the mortgage industry in Hawai’i. HUD

official Jackson stated that the agency promises anonymity to

industry insiders who report suspected wrongdoing because

of their vulnerability to retaliation such as loss of

employment or loss of business. The district court noted in

its opinion that Prudential had “mention[ed] the possibility of

a civil lawsuit against the unidentified individuals for their

‘sham’ complaints.” Prudential Locations, 646 F. Supp. 2d

at 1225. Prudential went to the expense not only to make a

FOIA request for HUD’s records from the two investigations.

When it received what appear to be all relevant documents,

with only the identities of the authors of the 2003 Letter and

2008 Email redacted, Prudential then also went to the

additional expense of filing a federal suit and pursuing an

appeal with the sole aim of identifying the authors. Under

these circumstances, we conclude that there is a significant

16 PRUDENTIAL LOCATIONS LLC V. HUD

risk of harassment, retaliation, stigma, or embarrassment of

the authors if their identities are revealed. See Ray, 502 U.S.

at 176–77; Forest Serv. Emps., 524 F.3d at 1026.

Against the authors’ privacy interest, we weigh the public

interest in disclosure of their names. The Court has narrowly

defined the public interest that is cognizable in a FOIA

balancing: “[T]he only relevant public interest in the FOIA

balancing analysis [is] the extent to which disclosure of the

information sought would ‘she[d] light on an agency’s

performance of its statutory duties’ or otherwise let citizens

know ‘what their government is up to.’” Dep’t of Def.,

510 U.S. at 497 (1994) (quoting Reporters Comm., 489 U.S.

at 773) (second alteration in original). Revealing the identity

of a private individual does not further the public interest

unless it casts light on the conduct of the government:

Official information that sheds light on an

agency’s performance of its statutory duties

falls squarely within [FOIA’s] statutory

purpose. That purpose, however, is not

fostered by disclosure of information about

private citizens that is accumulated in various

governmental files but that reveals little or

nothing about an agency’s own conduct.

Reporters Comm., 489 U.S. at 773.

Prudential has not shown that learning the identities of

those who wrote the letter or the email would add

significantly to the already available information concerning

the manner in which HUD has performed its statutory duties.

Prudential has made no allegation, and has presented no

evidence, that HUD performed either of the two

PRUDENTIAL LOCATIONS LLC V. HUD 17

investigations improperly or inefficiently. Prudential does

not contend that HUD’s finding in the first investigation that

Prudential had violated RESPA by awarding prizes for

steering business to its jointly owned business was improper;

nor does Prudential contend that the $48,000 fine, paid in

settlement, was excessive in light of its violation of the law.

Prudential also does not contend that HUD acted improperly

or inefficiently in conducting the second investigation, at the

end of which HUD concluded that the author’s allegation of

wrongdoing by Prudential could not be substantiated.

This case is quite different from Electronic Frontier

Foundation, in which we held that there was a substantial

public interest in learning the identities of lobbyists who had

communicated with the executive branch in an attempt to

influence legislation. The lobbyists had sought legislation

that would provide retroactive protection from liability for

telecommunications carriers that had cooperated with the

government in conducting “a warrantless, electronic

surveillance program on millions of American telephones.”

Elec. Frontier Found., 639 F.3d at 879. We wrote:

There is a clear public interest in public

knowledge of the methods through which

well-connected corporate lobbyists wield their

influence. . . . With knowledge of the

lobbyists’ identities, the public will be able to

determine how the Executive Branch used

advice from particular individuals and

corporations in reaching its own policy

decisions. . . . In short, we find the public

interest in “government openness that would

be served by disclosure” of how the

government makes decisions potentially

18 PRUDENTIAL LOCATIONS LLC V. HUD

shielding firms lobbying (and donating to

campaigns) from nine-figure liabilities to be

plainly important.

Id. at 887–88. Here, the authors did not seek to influence

legislation or to change any substantive policy. Instead, they

alleged violations of an existing federal statute in

communications to the federal agency charged with enforcing

that statute.

There is nothing in the texts of the 2003 Letter or the

2008 Email, or in the actions of HUD in investigating the

allegations of statutory violations, to suggest that knowledge

of the identities of the authors would significantly “shed light

on an agency’s performance of its statutory duties or

otherwise let citizens know what their government is up to.”

Dep’t of Def., 510 U.S. at 497 (internal quotation marks and

alteration omitted). We therefore conclude that no public

policy cognizable under Exemption 6 would be served by

revealing their identities.

Because the authors of the communications have

cognizable personal privacy interests in maintaining their

anonymity, and because there is no cognizable public policy

interest that would be served by revealing their identities,

we hold that revealing their identities “would constitute a

clearly unwarranted invasion of personal privacy” under

Exemption 6.

3. Exemption 7(D) and Landano

Prudential argues that the foregoing analysis makes

Exemption 7 “superfluous,” and undercuts the Supreme

Court’s interpretation of Exemption 7(D) in United States

PRUDENTIAL LOCATIONS LLC V. HUD 19

Department of Justice v. Landano, 508 U.S. 165 (1993). We

disagree.

Exemption 7 applies to “records or information compiled

for law enforcement purposes.” 5 U.S.C. § 552(b)(7). Such

records are exempt from a FOIA request, but only if they

satisfy the criteria of at least one of six subcategories of

Exemption 7 — Exemptions 7(A) through 7(F). Exemption

7(D) provides that a law enforcement record need not be

released if it “could reasonably be expected to disclose the

identity of a confidential source.” Id. § 552(b)(7)(D). In

Landano, the Court established the criteria by which a law

enforcement “source” can qualify as “confidential” within the

meaning of Exemption 7(D). See Landano, 508 U.S. at

179–80.

Prudential argues, though a little obliquely, that the 2003

Letter and 2008 Email are “records or information compiled

for law enforcement purposes” within the meaning of

Exemption 7, and that the authors of the 2003 Letter and the

2008 Email do not qualify as “confidential source[s]” under

Exemption 7(D). It then argues that if the identities of the

authors are protected under Exemption 6, without any

requirement that the authors satisfy the criteria for a

“confidential source” contained in Exemption 7(D),

Exemption 6 offers an end run around the more stringent

requirements of Exemption 7. We see no basis to conclude

that the application of Exemption 6 in this case undercuts or

is inconsistent with Exemption 7.

Exemption 7 operates differently from Exemption 6.

Under Exemption 7(D), if an individual satisfies the criteria

for a “confidential source,” then the “record[] or information

compiled for law enforcement purposes” need not be

20 PRUDENTIAL LOCATIONS LLC V. HUD

released. § 552(b)(7)(D). If the individual is a “confidential

source,” that is the end of the matter; there is no need to

balance the individual’s privacy interest against the public

interest in disclosure, as is required under Exemption 6.

However, if the individual does not satisfy the criteria for a

“confidential source,” he or she may nonetheless be protected

under some other subcategory of Exemption 7. The

subcategory most relevant to our case is Exemption 7(C),

which exempts “records or information compiled for law

enforcement purposes” if their disclosure “could reasonably

be expected to constitute an unwarranted invasion of personal

privacy.” Id. § 552(b)(7)(C).

We are willing to assume that the 2003 Letter and 2008

Email are “records or information compiled for law

enforcement purposes” within the meaning of Exemption 7.

If HUD had characterized them as such and had relied on

Exemption 7(C) to exempt them from release, we would

balance the authors’ privacy interests against the public

interest in disclosure, much as we have just done under

Exemption 6. What Prudential fails to recognize is that

Exemption 7(C) is more protective of privacy than Exemption

6. As the Supreme Court noted in Reporters Committee,

“Exemption 7(C)’s privacy language is broader than the

comparable language in Exemption 6 in two respects.”

489 U.S. at 756. First, Exemption 6 requires that the invasion

of privacy be “clearly unwarranted,” whereas Exemption 7(C)

requires only that the invasion be “unwarranted.” Second,

Exemption 6 requires a disclosure that “would constitute” an

invasion of privacy, whereas Exemption 7(C) requires only

that a disclosure “could reasonably be expected to constitute”

an invasion of privacy. However, because HUD has chosen

to rely on Exemption 6 rather than Exemption 7(C), we need

PRUDENTIAL LOCATIONS LLC V. HUD 21

not examine whether the 2003 Letter and the 2008 Email

would also be protected under Exemption 7(C).

Conclusion

For the foregoing reasons, we conclude that HUD

properly withheld the identities of the authors of the 2003

Letter and the 2008 Email. We therefore affirm the district

court.

AFFIRMED.

BERZON, Circuit Judge, dissenting:

The Freedom of Information Act (“FOIA”) establishes a

strong default rule: Government must disclose information in

its possession unless it invokes, at its discretion, one of nine

narrow exemptions. See, e.g., U.S. Dep’t of Def. v. FLRA,

510 U.S. 487, 494 (1994) (citing U.S. Dep’t of Air Force v.

Rose, 425 U.S. 352, 360–61 (1976)); see also 5 U.S.C.

§ 552(b)(1)–(9) (enumerating exemptions). Here, HUD has

invoked only Exemption 6, which authorizes withholding

“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). Applying that

exemption requires balancing the personal privacy interests

it protects “against the public interest in government

openness that would be served by disclosure.” Lahr v. Nat’l

Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009).

The majority identifies a personal privacy interest which

may not exist, and then weighs the public interest in

22 PRUDENTIAL LOCATIONS LLC V. HUD

disclosure too lightly. And it does both in the name of

reducing the government’s burden in complying with the law,

a concern with no application here. I dissent.

I.

Were it up to me, I would do what we did in our original

resolution of this case—remand to the district court for

further factual development. See Prudential Locations LLC

v. U.S. Dep’t of Housing & Urban Dev., 648 F.3d 768,

778–79 (9th Cir. 2011), vacated and rehearing granted,

665 F.3d 1379 (9th Cir. 2012). The present record is

inadequate to confirm the existence of any personal privacy

interest, let alone to balance it against the public interest in

naming those informants whose tips our government deems

credible enough to merit investigation.

A.

1. Exemption 6 applies only where some “personal

privacy” interest is at stake. See Rose, 425 U.S. at 371, 375

n.14. A “‘nontrivial privacy interest’” can be enough to

trigger further analysis under the exemption. See Forest Serv.

Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021,

1026–27 (9th Cir. 2008) (quoting FLRA, 510 U.S. at 501).

But if no nontrivial privacy interest is in jeopardy, then FOIA

requires disclosure. See Multi Ag Media LLC v. Dep’t of

Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008).

A nontrivial privacy interest does not exist merely

because the government asserts it. Rather, FOIA’s “strong

presumption in favor of disclosure places the burden on the

agency to justify the withholding of any requested

documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173

PRUDENTIAL LOCATIONS LLC V. HUD 23

(1991); Maricopa Audubon Soc’y v. U.S. Forest Serv.,

108 F.3d 1089, 1092 (9th Cir. 1997); 5 U.S.C. § 552(a)(4)(B).

Like all parties on summary judgment, the government must

adduce specific evidence to carry its burden. See Fed. R. Civ.

P. 56(c).

The government in this case has submitted no evidence

whatever concerning the relevant circumstances or privacy

concerns of the individuals who filed the complaints of

wrongdoing with HUD. In the face of this vacuum, the

majority in effect holds that the government carries its burden

of demonstrating a nontrivial privacy interest simply by

specifying that the individual whose name is being withheld

reported alleged wrongdoing to a government official. FOIA

Exemption 6 requires more.

Exemption 6 provides protection for “personal privacy.”

5 U.S.C. § 552(b)(6) (emphasis added). The case law gives

effect, as it must,1 to the “personal” modifier, requiring the

government to demonstrate either that disclosure of an

individual’s name would be linked with personal details

about his life or that disclosure would subject an individual to

harassment in his personal life.

In United States Department of State v. Ray, for example,

the Court invoked both of these circumstances in approving

withholding the names of involuntarily repatriated Haitians

interviewed pursuant to a State Department investigation.

Ray, 502 U.S. at 175–76. It noted that “highly personal

1

“‘We have long followed the principle that ‘[s]tatutes should not be

construed to make surplusage of any provision.’” Local Joint Exec. Bd.

of Las Vegas v. NLRB, 657 F.3d 865, 675–76 (9th Cir. 2011) (quoting Nw.

Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996)).

24 PRUDENTIAL LOCATIONS LLC V. HUD

information regarding marital and employment status,

children, living conditions and attempts to enter the United

States, would be linked publicly with particular, named

individuals.” Id. In addition, the Court highlighted the

danger that Haitians cooperating with the State Department

investigation might be subject to retaliatory action for

illegally departing Haiti, or that interviewees would be

embarrassed “in their social and community relationships.”

Id. at 176.

Our cases, too, are consistent with this understanding of

Exemption 6’s requirement of “personal” exposure or

harassment. Forest Service Employees, for example,

permitted the application of Exemption 6 to the names of

low-level federal employees because they could personally be

subject to “embarrassment and stigma” or “harassment” by

litigants and media. 524 F.3d at 1026. Similarly, Lahr

affirmed the application of Exemptions 6 and 7(C) where

disclosing the names of eyewitnesses to an accident could

expose them to “undesired contact[]” by litigants and media.

569 F.3d at 975–77.

PRUDENTIAL LOCATIONS LLC V. HUD 25

The majority purports to rely on these cases.2 But none of

them upheld application of Exemption 6 solely because the

identified individuals provided information to the

government. In each case, the government revealed more

than that about the circumstances of those individuals whose

names the government sought to withhold. And it was that

additional information that established the danger of exposure

2

I agree with the majority that treating files such as those in this case,

Forest Employees, and Lahr as “similar files” for the purpose of

Exemption 6 is problematic, and add some additional reasons why that is

so. Maj. Op. 10–11.

First, the grammatical “rule of the last antecedent” compels a narrow

construction of “similar files.” Under that rule, a relative pronoun refers

to the nearest reasonable antecedent. See, e.g., Barnhart v. Thomas,

540 U.S. 20, 26–27 (2003); Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 144–46 (2012). Here, the relative

pronoun “which” attaches only to “similar files”—not “personnel and

medical files”—and describes how the relevant files must be “similar” to

personnel or medical materials. That description thus indicates that

disclosure of the files as a whole (although not every record in the files)

must, like the disclosure of personnel and medical files, entail a “clearly

unwarranted invasion of personal privacy.”

Second, application of the familiar ejusdem generis canon also

suggests that the catch-all term—“similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal

privacy”—should be “‘construed to embrace only objects similar in nature

to those objects enumerated by the preceding specific words.’” Circuit

City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (quoting 2A N.

Singer, Sutherland on Statutes and Statutory Construction § 47.17

(1991)). “[P]ersonnel and medical files” are, by definition, about

individuals and their personal lives—their bodies, their families, their

financial circumstances, their criminal and disciplinary records, if any.

“Similar files” ought to carry a parallel meaning, and so not reach files

that are about the wrongdoing of other people and contain no such

personal data about the informant.

26 PRUDENTIAL LOCATIONS LLC V. HUD

of personal information or of harassment in the informants’

personal lives.

Ray, 502 U.S. at 176, for example, concerned the identity

and personal information of repatriated Haitian emigrants

potentially vulnerable to government persecution in Haiti for

having unlawfully fled the country. Forest Service

Employees, 524 F.3d at 1026, concerned low-level

government employees, some of whom were associated with

serious allegations of misconduct as to themselves, in the

context of pending litigation and much public uproar. And

Lahr, 569 F.3d at 975–77, concerned bystander eyewitnesses

and investigators of an infamous plane crash, whom the

plaintiff expressly wished to contact against the backdrop of

substantial media attention. Such additional details—not the

bald claim that the identified individuals provided

information to the government—established the existence of

a personal privacy interest. Moreover, in each of these

instances, the underlying investigation, about which the

plaintiffs sought records, had been triggered by the

government. For that reason, the information sought was

“personal” in the sense that it concerned individuals who had

not voluntarily entered the public sphere with regard to the

information collected by the government.

The majority’s opinion thus breaks new ground by finding

in the names of voluntary government informants a per se

personal privacy interest. Still worse, the majority’s per se

rule departs from statute as well as precedent, because it does

nothing to verify that the purported privacy interest protected

by nondisclosure is personal in nature.

The majority’s rule would see a cognizable “personal

privacy” interest in any informant’s name, without more.

PRUDENTIAL LOCATIONS LLC V. HUD 27

“Personal privacy” under Exemption 6 is not so broad.

Disclosure of the names of those providing information to the

government is not “inherently and always a significant threat

to the privacy of the [named] individuals.” Ray, 502 U.S. at

176 n.12. To be sure, an informant’s name refers to his

person and is in that narrow sense “personal.” But

“‘[p]ersonal’ in the phrase ‘personal privacy’ conveys more

than just ‘of a person.’ It suggests a type of privacy evocative

of human concerns.” FCC v. AT & T, Inc., 131 S. Ct. 1177,

1183 (2011).

In some circumstances, revelation of an informant’s name

does not raise the “human concerns” evoked by the term

“personal privacy.” Consider, for example, the business

executive accusing his competitor of lawbreaking. Such an

informant acts on behalf of the business that employs him.

And business concerns rarely qualify as “human concerns” of

the sort encompassed by “personal privacy.” “[W]e often use

the word ‘personal’ to mean precisely the opposite of

business-related: We speak of personal expenses and

business expenses, personal life and work life . . . .” Id. at

1182 (emphasis in original).

For example, Electronic Frontier Foundation v. Office of

the Director of National Intelligence, 639 F.3d 876, 888 (9th

Cir. 2010), which required the government to disclose the

names of business lobbyists, minimized almost to the point of

non-existence the notion that there was any “personal

privacy” interest in the “nature of their employment.” There,

we reasoned that “government acknowledgment of a

lobbyist’s lobbying activities does not reveal sensitive

personal information about the individual rising to a clearly

unwarranted invasion of personal privacy.” Id. (internal

quotation marks omitted); see also Wash. Post Co. v. U.S.

28 PRUDENTIAL LOCATIONS LLC V. HUD

Dep’t of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988)

(“Information relating to business judgments and

relationships does not qualify” as a personal privacy interests

under Exemption 7(C), “even if disclosure might tarnish

someone’s professional reputation.”). Similarly, if one firm,

acting through an officer or other agent, retaliates in the

marketplace against another for blowing the whistle, I see no

invasion of personal privacy.

Nor is there necessarily a nontrivial personal privacy

interest in the name of a senior government official when

such an official acts as an informant. True, “‘individuals do

not waive all privacy interests in information relating to them

simply by taking an oath of public office.’” Lahr, 569 F.3d

at 977 (quoting Lissner v. U.S. Customs Serv., 241 F.3d 1220,

1223 (9th Cir. 2001)). But the personal privacy interests of

senior officials are especially attenuated. Lahr, 569 F.3d at

977 (citing Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir.

1994)). Where such a senior official voluntarily submits

information to the government to trigger a governmental

investigation, his affirmative act may further weaken any

putative privacy interest in his name. See Elec. Frontier

Found., 639 F.3d at 887–89 (noting that voluntary submission

of information intended to affect public policy minimizes an

informant’s privacy interest). In an appropriate case, a court

could well determine that such a senior government official

possesses, at best, a trivial personal privacy interest in

withholding his name.

Nor, in the particular circumstances of this case, are there

any obvious personal privacy interests jeopardized by the

disclosure of an informant’s name if the informant is wholly

unaffiliated with either Prudential or the real estate industry.

Such an unrelated informant is not especially vulnerable to

PRUDENTIAL LOCATIONS LLC V. HUD 29

retaliation or harassment from his employer, co-workers, or

friends, as might be true if he worked for Prudential or a

related firm. For this reason, too, a privacy interest put in

danger “more palpable than [a] mere possibilit[y]” would

need to be identified. Rose, 425 U.S. at 380 n.19.

2. The majority sidesteps these concerns with

unwarranted conjecture. “Given the nature of [the

informants’] communications,” the majority speculates, “they

appear to have inside knowledge of the mortgage industry in

Hawai’i.” Maj. Op. 15 (emphasis added). Inferences of this

variety cannot carry the day in the present context. This is an

appeal from the grant of summary judgment against

Prudential, so “[w]e draw all reasonable inferences in the

light most favorable to the non-moving party.” Corns v.

Laborers Int’l Union of N. Am., 709 F.3d 901, 907 (9th Cir.

2013). “Appearance” seems to be another word for inference,

yet other inferences—such as the inference that the

information came from a disgruntled former customer—are

also possible.

Even were it otherwise proper, the majority’s inference

would remain unreasonable. These informants purported to

draw their facts from a newspaper article and a conversation

with a Prudential employee, respectively—hardly the stuff of

“inside knowledge.”

The majority continues by suggesting that Prudential

itself may harass, retaliate against, stigmatize, or embarrass

the informants. After all, the majority hints, Prudential went

to the expense of filing a FOIA request and, when it was

dissatisfied with HUD’s response, initiated a lawsuit that it

has carried through appeal. Maj. Op. 15. Once again, the

inference of malice that the majority draws from this

30 PRUDENTIAL LOCATIONS LLC V. HUD

litigation history is not its to make. This Court may only take

judicial notice of “a fact that is not subject to reasonable

dispute.” Fed. R. Evid. 201(b). And Prudential’s motivations

for pursuing its legal options are reasonably disputable. It

may, for example, wish to lobby HUD to improve its

complaint screening process to weed out non-credible

informants. Or it may wish to improve its own internal

confidentiality policies.

My point is not that these alternative inferences are

compelled by the record, or even that they are more

reasonable than the majority’s inferences. Rather, the

reasonable possibility of such motivations renders the

majority’s preferred interpretation “subject to reasonable

dispute” and hence beyond the scope of its authority in

reviewing a summary judgment record as barren as this one.3

3. In sum, there can be no per se rule that those who

provide information about the alleged wrongdoing of others

have a personal privacy interest in their identity subject to a

threat “more palpable than [a] mere possibilit[y],” Rose,

425 U.S. at 380 n.19. Because the record in this case leaves

us speculating about the personal privacy interests of the

3

The majority’s attempts to shore up its inference by observing that the

district court opinion noted that Prudential had “mention[ed] the

possibility of a civil lawsuit against the unidentified individuals for their

‘sham’ complaints.” Maj. Op. 15. Any such “mention,” however, appears

nowhere in the record. Rather, the district court misinterpreted one of

Prudential’s legal arguments—that public policy does not protect those

who file unsupported complaints with the government—as a statement of

Prudential’s intentions. In any case, HUD does not rely on the district

court’s unsupported finding on appeal. The majority should not do so,

either.

PRUDENTIAL LOCATIONS LLC V. HUD 31

informants, I would remand to the district court to develop

the record.

Moreover, even if we could infer from the absence of a

record—which we cannot—that there is some nontrivial

privacy interest on the part of the informants, we have no clue

what it is. Once a nontrivial privacy interest is established,

the next stage of the analysis is to evaluate whether invasion

of that interest is “clearly unwarranted” by the countervailing

public interest in disclosure. See Lahr, 569 F.3d at 973.

Executing that balancing analysis requires knowing

something about the nature and strength of the privacy

interest at stake. We cannot balance a personal privacy

interest whose measure we have yet to take.

B.

Not only is the majority’s understanding of “personal

privacy” interests too broad, its account of the public policy

interests protected by disclosure is too narrow. The majority

unnecessarily constricts its inquiry by focusing only on a

public interest in exposing government impropriety or

inefficiency. It fails to acknowledge, let alone reject, the

broader public interest that Prudential advances.

As the majority correctly notes, only a disclosure that

“would ‘she[d] light on an agency’s performance of its

statutory duties’ or otherwise let citizens know ‘what their

government is up to,’” qualifies as a cognizable public

interest under FOIA. FLRA, 510 U.S. at 497 (quoting U.S.

Dep’t of Justice v. Reporters Comm. for Freedom of the

Press, 489 U.S. 749, 773 (1989)). But that does not mean, as

the majority’s analysis at some points suggests, that the

plaintiff must have demonstrated that the government’s

32 PRUDENTIAL LOCATIONS LLC V. HUD

behavior may have been improper or inefficient. “[P]ublic

understanding of the operations or activities of the

government,” Reporters Comm., 489 U.S. at 775, includes not

only exposure of government misfeasance, but also of

governmental effectiveness and other aspects of internal

agency functioning.4

Consider, for example, Reporters Committee, 489 U.S.

749. There, the Supreme Court held out Rose, 425 U.S. 352,

as an example of disclosure that advanced the public interest

in understanding the workings of government. That case,

Reporters Committee explained, required the disclosure of

Air Force Academy disciplinary-hearing summaries because

they “obviously contained information that would explain

how the disciplinary procedure actually functioned and

therefore were an appropriate subject of a FOIA request.”

Reporters Comm., 489 U.S. at 773. The interest was purely

informational; suspected government misfeasance had

nothing to do with it. Because the public interest in

disclosure is broader than the exposure of official

wrongdoing, the majority’s preoccupation with Prudential’s

failure to allege that “HUD performed either of the two

investigations improperly or inefficiently” is beside the point.

Maj. Op. 16–17.

4

See Cooper Cameron Corp. v. U.S. Dep’t of Labor, 280 F.3d 539, 548

(5th Cir. 2002) (“[T]here is a cognizable public interst in monitoring

agencies’ enforcement of the law . . . .”); Nation Magazine, Wash. Bureau

v. U.S. Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) (recognizing a

public interest in understanding the “‘privatization of government

functions,’” particularly law enforcement investigations); cf. Brock v.

Pierce Cnty., 476 U.S. 253, 262 (1986) (“[T]he protection of the public

fisc is a matter that is of interest to every citizen . . . .”).

PRUDENTIAL LOCATIONS LLC V. HUD 33

On this more expansive view of the public interest in

knowing “what the government is up to,” Prudential did

explain how disclosure would advance the public knowledge

of HUD’s performance of its statutory duties: Prudential

argued that HUD’s operations “cannot be fully understood

without knowing who initiates or influences investigations.”

It articulated concern that HUD had initiated investigations

“based on accusations from potentially biased, self-interested,

or otherwise unreliable sources.”

Although the majority’s does not so state, this concern is

legitimate. Government investigations carry costs, burden the

public fisc, and divert resources from other potentially

meritorious activities. Meanwhile, targeted individuals and

entities are saddled with disruptive inquiries, the costs of

compliance, and, above all, tarnished reputations. See, e.g.,

Richard A. Bierschbach & Alex Stein, Overenforcement, 93

Geo. L.J. 1743, 1771–72 (2005) (collecting sources

concerning the “significant extralegal sanctions for the

defendants and their employees” associated with investigation

of corporate misfeasance or conviction). Agencies, and the

firms and individuals they investigate, will bear those costs

even when investigation does not support further prosecution.

Given the costs and collateral damage, the public is entitled

to know what tips its government deems sufficiently reliable

to merit investigation.5

5

I note that although Prudential is a business entity, government

agencies investigate many individuals for wrongdoing—for example,

taxpayers, social security and other benefit recipients, and alleged

undocumented immigrants. Undoubtedly, many of these investigations

are triggered by information voluntarily provided by members of the

public, for motives good and ill. The majority’s approach to this case

would presumably apply to such instances as well. That approach could

preclude, in the absence of allegations of misfeasance, the revelation of

34 PRUDENTIAL LOCATIONS LLC V. HUD

Fully evaluating reliability, in turn, usually requires

knowing an informant’s name. Reliability is generated by

features both external and internal to a statement. External

indicia of reliability relate to the identity of the informant.

Knowledge of an informant’s identity enables assessment

credibility, through what Florida v. J.L., 529 U.S. 266, 270

(2000), termed “reputation.” See Illinois v. Gates, 462 U.S.

213, 233–34 (1983) (noting that “an unquestionably honest

citizen” or an informant with a history of “unusual reliability”

would be especially credible). Where an informant is “known

. . . personally and had provided . . . information in the past,”

for example, his statement is more reliable than “an

anonymous telephone tip.” Adams v. Williams, 407 U.S. 143,

146 (1972). By contrast, internal indicia relate to the contents

of an informant’s statement—its measure of detail or the

evidentiary base on which it purports to rest. See Gates,

462 U.S. at 234 (noting that an “explicit and detailed

description of alleged wrongdoing, along with a statement

that the event was observed first-hand,” enhances a tip’s

credibility). Without more, however, “‘an anonymous tip

alone seldom demonstrates the informant’s basis of

knowledge or veracity.’” J.L., 529 U.S. at 270 (quoting

Alabama v. White, 496 U.S. 325, 329 (1990)). To be deemed

reliable, the statement must include independently verifiable

details, such as accurate prediction of a suspect’s future

behavior. See id. at 270–71; United States v. Morales,

252 F.3d 1070, 1076 (9th Cir. 2001) (reviewing cases

concerning anonymous tips). In other words, some external

validation is always needed; a statement cannot be considered

reliable without it. And the informant’s identity is almost

always the best way of providing such external validation.

information that might bring to light the criteria used to determine which

such informant-provided information is investigated and to what degree.

PRUDENTIAL LOCATIONS LLC V. HUD 35

Thus, the “marginal additional usefulness,” Forest Serv.

Emps., 524 F.3d at 1027 (internal quotation marks omitted),

of knowing an informant’s name—that is, the degree to which

the informant’s name adds to one’s ability to assess

reliability—is substantial. And such a significant aid to the

evaluation of reliability must be taken into account in

determining whether an invasion of personal privacy is

“clearly unwarranted.” 5 U.S.C. § 552(b)(6) (emphasis

added).

In particular, the possibility of what Prudential calls

“biased” or “self-interested” tips enhances the public interest

in identifying informants. As noted, an investigation injures

its targets, even if it ultimately exonerates them. For this

reason, what children call “snitching” can be an effective way

to settle a personal score or gain a competitive advantage in

the marketplace.6 If an informant successfully triggers a

baseless investigation for personal gain, he will have put

government power to private purpose. That danger is

preeminently a public concern. Cf. Exxon Shipping Co.

v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994)

(acknowledging, in the context of discovery requests arising

out of litigation to which the government was not party, “the

government’s serious and legitimate concern that its

employee resources not be commandeered into service by

6

These are hardly far-fetched possibilities. See, e.g., Portomene v.

United States, 221 F.2d 582, 583 (5th Cir. 1955) (describing an allegation

that “there was bad blood between [an informant] and the defendant, and

that this furnished the motive for [the informant’s] desiring to involve [the

defendant] by false charges that he had dealt in narcotics”); Medifast, Inc.

v. Minkow, No. 10-CV-382 JLS (BGS), 2011 WL 1157625, at *1 (S.D.

Cal. Mar. 29, 2011) (describing an alleged “series of coordinated attacks”

on a company, including accusations of regulatory violations, designed ‘to

increase the value of a short position’”).

36 PRUDENTIAL LOCATIONS LLC V. HUD

private litigants to the detriment of the smooth functioning of

government operations”). Such a danger, moreover, is

precisely the sort of potential corruption that the FOIA sought

to forestall by limiting secrecy.7 And knowing who alleges

illegality can be helpful in assessing the scope of such

possible corruption. Without names, the public is hampered

in evaluating the prevalence of self-interested informants or

the magnitude of their manipulation.

I do not understand the majority affirmatively to reject

these considerations, but instead to disregard them, evidently

as insufficiently raised. I disagree on the latter point. And I

expect that a future panel, adjudicating a case where such

concerns are fully articulated, will be attentive to the full

scope of the public interest in learning “what the government

is up to” in the processing of complaints by outside

informants.

7

FOIA ensures citizen oversight over the government, “a structural

necessity in a real democracy.” Nat’l Archives & Records Admin. v.

Favish, 541 U.S. 157, 172 (2004). In the debate over the FOIA

amendments, legislators sometimes contrasted that commitment to

democratic oversight with “the unhappy consequences of the other

alternative,” playing out “behind the Iron Curtain.” 1 Freedom of

Information Act Source Book: Legislative Materials, Cases, Articles 78

(1974); see also id. at 83 (calling a “policy of secrecy . . . the cornerstone

of a totalitarian bureaucracy”). And behind the Iron Curtain, where

informing was widespread, informants often “snitched” on their rivals for

personal gain. See, e.g., Robert Gellately, Denunciations in Twentieth-

Century Germany: Aspects of Self-Policing in the Third Reich and the

German Democratic Republic, 68 J. Modern Hist. 931, 944–50, 956

(1996) (documenting the prevalence of informing for personal gain in

Nazi and communist Germany).

PRUDENTIAL LOCATIONS LLC V. HUD 37

C.

Recognizing the public interest in disclosing informants’

names does not, by any means, preclude the application of

Exemption 6. Had HUD produced evidence (in camera, if

necessary) concerning its informants’ vulnerability to

retaliation, for example, that personal privacy interest might

well outweigh the public interest in disclosure, rendering

disclosure of the informants’ identities “clearly unwarranted.”

That is not, however, the balance struck by the majority.

To the contrary, it arrives at a balance unsupported by the

record: It assumes a personal privacy interest where there

may well be none, and it ignores countervailing interests that

go beyond governmental misconduct. Again, I would remand

for further development of the record.

II.

The majority’s treatment of this case is all the more

frustrating because it is unnecessary. The history of this case

establishes the background for understanding why: In our

initial resolution of the matter, we remanded for further

factual development as to the personal privacy interests of the

informants on the grounds articulated above, supra Part I.A.

Prudential Locations, 648 F.3d at 778–79. In a petition for

rehearing, however, the government complained that

demanding some evidence of a personal privacy interest

would burden its administration of the statute, and sought a

more deferential rule. In reversing course, today’s decision

would seem to have answered the government’s call. The

Supreme Court, however, has commanded us to refuse such

invitations to enervate FOIA. In any case, Congress has

38 PRUDENTIAL LOCATIONS LLC V. HUD

already provided less burdensome means for the government

to protect its informants.

A.

The premise of the government’s objection is sound

enough: The FOIA is a burden. See, e.g., Antonin Scalia,

The Freedom of Information Act Has No Clothes, Regulation,

Mar./Apr. 1982, at 15 (quipping that FOIA is “the Sistine

Chapel of cost-benefit analysis ignored”). In 2012 alone,

HUD fielded some 2,544 FOIA requests, which it processed

with the equivalent of over thirty staff members at an

aggregate cost of over $3 million (not counting litigation

expenses). U.S. Dep’t of Housing and Urban Dev., 2012

Annual FOIA Report, at 6, 18 (2012).

But these costs cannot be dismissed as useless

expenditures. Congress imposed them for a reason—to

“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

and quotation marks omitted). Consistent with the objective

of facilitating disclosure, the Supreme Court has repeatedly

commanded that FOIA’s exemptions are exclusive and

“‘narrowly construed.’” Milner v. U.S. Dep’t of Navy,

131 S. Ct. 1259, 1262 (2011) (quoting FBI v. Abramson,

456 U.S. 615, 630 (1982)); see also id. at 1265–66 (collecting

additional Supreme Court cases). Indeed, recent

jurisprudence has taken a sharply textual approach to

interpreting FOIA exemptions. See Peter L. Strauss et al.,

Gellhorn and Byse’s Administrative Law: Cases and

Comments 471 (11th ed. 2011) (citing, as examples, Milner,

131 S. Ct. 1259, and AT & T, 131 S. Ct. 1177).

PRUDENTIAL LOCATIONS LLC V. HUD 39

This Court cannot relieve the government of the burden

that Congress expressly placed upon it. Although a per se

rule protecting the identify of government informants would

be simple to administer, “we are not free to engraft that

policy choice onto the statute that Congress passed.” U.S.

Dep’t of Justice v. Landano, 508 U.S. 165, 181 (1993). To

the contrary, Congress “created a scheme of categorical

exclusion; it did not invite a judicial weighing of the benefits

and evils of disclosure on a case-by-case basis.” Abramson,

456 U.S. at 631.

This Court should, of course, seek to develop “workable

rules” for the agencies to follow, Reporters Comm., 489 U.S.

at 779, but only within the confines of the exemptions

Congress created. Milner, for instance, rejected on textual

grounds a long-settled interpretation of Exemption 2, despite

the danger that disclosure might “wreak havoc and make

catastrophe more likely.” 131 S. Ct. at 1271 (internal

quotation marks and brackets omitted). The Court reasoned

that, if “Congress has not enacted the FOIA exemption the

Government desires,” or if the exemption that Congress

enacted proves unworkable, then the government—here,

HUD—may take its complaint to Congress. Id.

In any case, demanding some evidence with which a

reviewing court can substantiate and evaluate the nature and

magnitude of a putative personal privacy interest is not

especially burdensome. Take Landano: That case required

an agency invoking FOIA exemption 7(D) to protect the

identify of informants to “point to more narrowly defined

circumstances that will support” the application of that

exemption. Landano, 508 U.S. at 179. Such a

“particularized approach,” the Court held, “is consistent with

40 PRUDENTIAL LOCATIONS LLC V. HUD

Congress’ intent to provide workable rules of FOIA

disclosure.” Id. at 180 (internal quotation marks omitted).

I would require no more. Such evidence need not be

adduced via elaborate, costly procedures; affidavits that

“contain reasonably detailed descriptions of the documents

and allege facts sufficient to establish an exemption” suffice.

Bowen v. U.S. Food & Drug Admin., 925 F.2d 1225, 1227

(9th Cir. 1991). In those rare circumstances that such

affidavits would themselves compromise the identity of

informants, they may be reviewed in camera. Landano,

508 U.S. at 180.

B.

In addition, as the majority recognizes, Maj. Op. 19–20,

much of the difficulty the government has putatively

encountered in protecting the identity of voluntary

government informers under Exemption 6 is of its own

creation. FOIA includes a separate exemption expressly

designed to facilitate the protection of informants, but the

government did not invoke it here.

Exemption 7(D) authorizes withholding “records or

information compiled for law enforcement purposes, but only

to the extent” that disclosure “could reasonably be expected

to disclose the identity of a confidential source . . . .”

5 U.S.C. § 552(b)(7)(D) (emphasis added). “[A] source is

‘confidential,’” under this exemption, “if it ‘provided

information under an express assurance of confidentiality or

in circumstances from which such an assurance could be

reasonably inferred.’” Rosenfeld v. U.S. Dep’t of Justice,

57 F.3d 803, 814 (9th Cir. 1995) (quoting Landano, 508 U.S.

at 172). The exemption applies equally to the enforcement of

PRUDENTIAL LOCATIONS LLC V. HUD 41

civil and criminal law. Church of Scientology Int’l v. IRS,

995 F.2d 916, 919 (9th Cir. 1993). Its application is not

contingent on the existence of a personal privacy interest in

nondisclosure, and does not require balancing that interest

against the interest in disclosure. To the contrary, Exemption

7(D) represents Congress’ own assessment of the appropriate

balance when it comes to informants.

HUD has not invoked that exemption here. Whether it

could sustain HUD’s nondisclosure of these informants’

names is thus a question for another day and another court.

The very existence of Exemption 7(D), however, strongly

implies that Exemption 6 applies quite narrowly, if at all, to

information concerning government informants. “‘[I]t is a

commonplace of statutory construction that the specific

governs the general.’ That is particularly true where, as

[here], ‘Congress has enacted a comprehensive scheme and

has deliberately targeted specific problems with specific

solutions.’” RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 132 S. Ct. 2065, 2071 (2012) (quoting Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 384 (1992), and

Varity Corp. v. Howe, 516 U.S. 489, 519 (1996) (Thomas, J.,

dissenting)). Exemption 7(D) specifically applies to the

withholding of information provided by informants. And it,

unlike Exemption 6, sets a condition, requiring that any such

informant be assured that his identity will remain

confidential. Given this statutory scheme, Exemption

7(D)—not Exemption 6—ought to control the government’s

request to withhold information concerning its informants.8

8

The same point applies with even greater force to Exemption 7(C),

which the majority urges the government to invoke in the future. Maj. Op.

19–20. Exemption 7(C) is part of the very same subsection of FOIA as

42 PRUDENTIAL LOCATIONS LLC V. HUD

Moreover, HUD’s legitimate desire to withhold

informants’ identities can be readily accommodated by

implementing procedures to document HUD’s assurance that

informants’ names would be kept confidential. Where “the

Government has other tools at hand to shield” the information

it seeks to withhold, Milner, 131 S. Ct. at 1271, judicial

distortion of other of FOIA’s narrow exemptions, to avoid the

requirements of the most directly applicable one, is

unnecessary as well as illegitimate.

HUD, and other federal agencies, would be well advised

to restrict their invocation of FOIA exemptions for voluntary

informants to Exemption 7(D). Here, Prudential failed to

contest whether HUD’s correspondence with the informants

qualified as “similar files” within the meaning of Exemption

6. Future plaintiffs will be less reticent. Meanwhile, the

majority, while not rejecting their pertinence, does not weigh

in its analysis the full range of the public interests in

disclosure, seemingly on the ground of inadequate invocation.

Future litigants, I suspect, will be more specific in cases like

this one in articulating the public interests in disclosure, so

future panels will conduct a more complete balancing

analysis.

CONCLUSION

For all these reasons, I respectfully dissent.

Exemption 7(D), so the general/specific canon should have particular

force.