Electronic Frontier Foundation v. Office of the Director of National Intelligence

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELECTRONIC FRONTIER FOUNDATION,  No. 09-17235

Plaintiff-Appellee, D.C. Nos.

v. 3:08-cv-01023-JSW

3:08-cv-02997-JSW

OFFICE OF THE DIRECTOR OF

NATIONAL INTELLIGENCE;  ORDER

DEPARTMENT OF JUSTICE, AMENDING

Defendants-Appellants. OPINION AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

January 12, 2010—San Francisco, California

Filed February 9, 2010

Amended April 9, 2010

Before: Myron H. Bright,* Michael Daly Hawkins, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation.

5357

5362 EFF v. ODNI

COUNSEL

Douglas N. Letter and Scott McIntosh, United States Depart-

ment of Justice, Civil Division, Washington, D.C., for the

defendants-appellants.

Marcia Hofmann, San Francisco, California, for the plaintiff-

appellee.

ORDER

The Motion by Appellants to Correct Factual Misstatement

in Panel Opinion is GRANTED. The Opinion filed on Febru-

ary 9, 2010, slip op. page 2313, and appearing at 595 F.3d

949 (9th Cir. 2010), is hereby amended as follows:

We delete the sentence on page 962 that currently reads:

On appeal, defendants concede that subsequent to

the district court order, the government determined

the district court was correct to order disclosure of

the documents exchanged between the Executive

Branch and Congress, as well as those in which the

telecommunications firms were involved in the

exchange.

In its place, we substitute the following sentence:

EFF v. ODNI 5363

After the district court’s disclosure order, the

Solicitor General chose not to appeal the Exemption

5 ruling as it pertained to the documents exchanged

between the Executive Branch and Congress, as well

as those documents in which the telecommunications

firms were involved in the exchange.

No petitions for rehearing or petitions for rehearing en banc

will be entertained following the filing of this Order.

OPINION

HAWKINS, Circuit Judge:

In the wake of the September 11, 2001 terrorist attacks, the

President authorized the National Security Agency (“NSA”)

to conduct a warrantless, electronic surveillance program on

millions of American telephones. Numerous lawsuits have

claimed the program was illegal and unconstitutional, e.g., Al-

Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190,

1192-93 (9th Cir. 2007), including a consolidated action for

damages against allegedly cooperating telecommunications

providers, see In re NSA Telecomms. Records Litig., 633 F.

Supp. 2d 949, 959 (N.D. Cal. 2009); see also U.S. Dep’t of

Justice, Office of Inspector Gen., A Review of the Federal

Bureau of Investigation’s Use of Exigent Letters and Other

Informal Requests for Telephone Records 20-25 (Jan. 2010)

(describing three unnamed telecommunications carriers’

cooperation with the FBI). The merits of those claims, how-

ever, are not at issue here.

This case concerns the discussions between telecommuni-

cations carriers (including their lobbyists and attorneys) and

the government, as the carriers sought retroactive liability

protection for any participation in the program. This appeal

concerns the extent to which the public has the right to infor-

5364 EFF v. ODNI

mation about those discussions and related lobbying efforts

under the Freedom of Information Act (“FOIA”).

I. BACKGROUND

A. Enactment of the Foreign Intelligence Surveillance

Act Amendments

Efforts to provide liability protection for the providers

began in 2007. In April of that year, as part of a broader dis-

cussion of reforming electronic surveillance laws, the Depart-

ment of Justice (“DOJ”) sent a legislative proposal to

Congress, which included a provision creating retroactive

immunity for telecommunications providers alleged to have

participated in the surveillance activities. In August 2007,

Congress enacted the Protect America Act of 2007 (“PAA”),

Pub. L. No. 110-55, 121 Stat. 552, a temporary measure,

which did not include a liability shield.

Contemporaneously with the PAA debate, news organiza-

tions such as The New York Times and Newsweek reported on

a “campaign” involving “some of Washington’s most promi-

nent lobbying and law firms”1 to pressure the Bush adminis-

1

The Newsweek article included the following:

Among those coordinating the industry’s effort are two well-

connected capital players who both worked for President George

H.W. Bush: Verizon general counsel William Barr, who served

as attorney general under 41, and AT&T senior executive vice

president James Cicconi, who was the elder Bush’s deputy chief

of staff.

Working with them are a battery of major D.C. lobbyists and

lawyers who are providing “strategic advice” to the companies on

the issue, according to sources familiar with the campaign who

asked not to be identified talking about it. Among the players,

these sources said: powerhouse Republican lobbyists Charlie

Black and Wayne Berman (who represent AT&T and Verizon,

respectively), former GOP senator and U.S. ambassador to Ger-

many Dan Coats (a lawyer at King & Spaulding who is represent-

EFF v. ODNI 5365

tration to “quickly approve a measure wiping out all private

lawsuits against them for assisting” with the warrantless sur-

veillance program. The news accounts highlighted the provid-

ers’ “hidden role in the political battle,” and Newsweek

claimed Director of National Intelligence Mike McConnell

(“McConnell”) had “raise[d] the stakes,” stating in a recent

interview that the lawsuits could “bankrupt these companies.”

Congress designed the PAA as a stopgap, and allowed it to

expire on February 16, 2008. One day before the PAA’s expi-

ration, McConnell discussed the need for statutory protection

for the carriers, stating in a TV interview, “The companies are

telling us if you can’t protect us, the cooperation you need is

not going to be there.” On February 23, DOJ and the Office

of the Director of National Intelligence (“ODNI”) issued a

joint press release noting the “private partners are cooperating

for the time being,” but the government also expressed con-

cern because the carriers “have indicated that they may well

discontinue cooperation if the uncertainty [over their liability

exposure] persists.” News reports claimed AT&T in fact

stopped cooperating with the government for six days after

the expiration of the PAA. Similar reports indicated Verizon

expressed its concerns to the government but did not cease its

assistance.

In July 2008, Congress passed, and the President signed,

the Foreign Intelligence Surveillance Act of 1978 Amend-

ments Act of 2008 (“FISA Amendments Act”), Pub. L. No.

110-261, 122 Stat. 2436, updating FISA on a more permanent

basis than did the PAA. As their lobbyists had sought, the leg-

islation included a liability shield for the carriers. Under Title

ing Sprint), former Democratic Party strategist and one-time

assistant secretary of State Tom Donilon (who represents Veri-

zon), former deputy attorney general Jamie Gorelick (whose law

firm also represents Verizon) and Brad Berenson, a former assis-

tant White House counsel under President George W. Bush who

now represents AT&T.

5366 EFF v. ODNI

VIII of the Act, section 802, “Procedures for Implementing

Statutory Defenses,” established the immunity procedure.

Specifically, section 802 provided that “a civil action may

not lie or be maintained in a Federal or State court against any

person for providing assistance to an element of the intelli-

gence community, and shall be promptly dismissed,” so long

as the Attorney General certified either that a defendant pro-

vided assistance pursuant to a number of reasons, such as

court order or presidential authorization, see § 802(a)(1)-(4),

122 Stat. at 2468-69, or certified that “the person did not pro-

vide the alleged assistance,” id. § 802(a)(5) (emphasis added).

B. EFF’s FOIA Requests

After passage of the PAA but before enactment of the FISA

Amendments Act, the Electronic Frontier Foundation (“EFF”)

made a FOIA request to ODNI and five DOJ components

(together “Defendants” or “the government”),2 seeking all

records from September 1, 2007, through December 21, 2007,

concerning “briefing, discussions, or other exchanges” agency

officials had with 1) members of Congress, and “2) represen-

tatives or agents of telecommunications companies concern-

ing amendments to FISA, including any discussion of

immunizing telecommunications companies or holding them

otherwise unaccountable for their role in government surveil-

lance activities.” Elec. Frontier Found. v. Office of the Dir. of

Nat’l Intelligence, 542 F. Supp. 2d 1181, 1184 (N.D. Cal.

2008) (“EFF”).

Some four months later, EFF submitted a second round of

FOIA requests to the same agencies seeking “all agency

records” concerning briefings, discussions, or other exchanges

2

The five DOJ components were the Office of the Attorney General

(“OAG”), the Office of Legislative Affairs (“OLA”), the Office of Legal

Policy (“OLP”), the Office of Legal Counsel (“OLC”), and DOJ’s

National Security Division (“NSD”).

EFF v. ODNI 5367

between the agencies and “representatives or agents of tele-

communications companies concerning amendments to

FISA,” or shielding the companies from liability as a result of

their cooperation with government surveillance activities.

This round of FOIA requests also sought information regard-

ing communications from the agencies to members of Con-

gress or their staffs, as well as agency communications,

regardless of subject matter, with a number of named, high-

profile telecommunications industry employees and lobbyists.3

In both FOIA letters, EFF sought expedited processing of

their requests. See 5 U.S.C. § 552(a)(6)(E)(v)(II) (2000), 32

C.F.R. § 1700.12(c)(2) (2007), and 28 C.F.R. § 16.5(d)(1)(ii).

When the agencies failed to timely respond, EFF filed two

separate actions, which were later consolidated by the district

court.

3

EFF’s specific FOIA request sought all records:

A. from December 21, 2007 to the present concerning briefs,

discussions, or other exchanges, any [agency] official has

had with representatives or agents of telecommunications

companies concerning amendments to FISA, including any

discussion of immunizing telecommunications companies or

holding them otherwise unaccountable for their role in gov-

ernment surveillance activities;

B. from December 21, 2007 to the present concerning briefings,

discussions, or other communications from any OAG offi-

cial to any member of the Senate or House of Representa-

tives or their staffs;

C. from December 21, 2007 to the present concerning any com-

munications, discussions, or other exchanges regardless of

subject that any [agency] official has had with Charlie

Black, Wayne Berman, Dan Coats, Tom Donilon, Jamie

Gorelick or Brad Berenson; and

D. from January 1, 2007 to the present that are responsive to

the categories above, and have not yet been produced in

response to previous EFF FOIA requests.

5368 EFF v. ODNI

C. Procedural History

On April 4, 2008, the district court granted a preliminary

injunction requiring ODNI and DOJ to expedite processing of

EFF’s December 2007 FOIA requests. EFF, 542 F. Supp. 2d

at 1187. The parties negotiated a schedule for processing the

June 2008 requests.

In response to the preliminary injunction, ODNI and DOJ

released many documents, but withheld others pursuant to a

number of FOIA exemptions and privileges. Under Exemp-

tion 5 (protecting “inter-agency or intra-agency” documents

privileged in civil litigation, 5 U.S.C. § 552(b)(5) (2006)),

Defendants withheld email messages and other information

exchanged between the agencies and Congress, the agencies

and the telecommunications carriers, and the agencies and

other parts of the Executive Branch, including the White

House.

Defendants also withheld the identities of telecommunica-

tions company representatives under Exemption 3 (permitting

the withholding of information “specifically exempted from

disclosure by statute,” 5 U.S.C. § 552(b)(3)), and Exemption

6 (permitting withholding of certain personnel, medical, and

similar files for which disclosure “would constitute a clearly

unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6)).

EFF challenged withholdings related to unclassified com-

munications between and among Executive agencies, Con-

gress, the White House, and telecommunications carriers,

concerning amendments to FISA. It also challenged Defen-

dants’ withholding of the identities of individual agents or

representatives of the carriers within both the released and

withheld communications. The parties each moved for sum-

mary judgment, which they agreed to consolidate, and the dis-

trict court denied the government’s motion, granted EFF’s

EFF v. ODNI 5369

cross-motion, and ordered the government to disclose the con-

tested documents.

After the district court rejected Defendants’ motions for

reconsideration and refused a temporary stay pending the

Solicitor General’s determination regarding appeal of the dis-

closure order, Defendants sought the stay in this court. We

granted a stay pending appeal to allow the Solicitor General

the opportunity to decide which part(s) of the summary judg-

ment order to appeal.

Defendants decided not to appeal the district court order as

it pertained to information Defendants exchanged with Con-

gress and with the telecommunications firms, and the govern-

ment then disclosed the content of all communications

between the agencies and Congress and the agencies and tele-

communications carriers, though redacted the identities of

telecommunications firms and their agents or representatives.

This substantial disclosure left only two types of information

Defendants continue to withhold.

Under Exemption 5, Defendants are withholding materials

claimed to have been circulated solely within the Executive

Branch. Defendants also continue to withhold the previously

redacted identities of telecommunications firms and their

agents or representatives involved in the FISA Amendments

Act communications under Exemption 3 and Exemption 6.

II. DISCUSSION

A. Standard of Review under FOIA

[1] FOIA was enacted to create a “judicially enforceable

public right to secure” government documents. EPA v. Mink,

410 U.S. 73, 80 (1973); see also U.S. Dep’t of State v. Ray,

502 U.S. 164, 173 (1991) (FOIA “was enacted to facilitate

public access to Government documents.”). The statutory

scheme provides public access to government information

5370 EFF v. ODNI

“shielded unnecessarily” from the public and establishes a

“judicially enforceable public right to secure such information

from possibly unwilling official hands.” Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976) (internal quotation marks

omitted). FOIA’s purpose was thus 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) (internal quotation marks

omitted).

[2] “At the same time, FOIA contemplates that some infor-

mation may legitimately be kept from the public.” Lahr v.

NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The statute contains

nine exemptions, pursuant to which the government can with-

hold information otherwise available for disclosure. See 5

U.S.C. § 552(b)(1)-(9) (2006). “FOIA’s ‘strong presumption

in favor of disclosure’ means that an agency that invokes one

of the statutory exemptions to justify the withholding of any

requested documents or portions of documents bears the bur-

den of demonstrating that the exemption properly applies to

the documents.” Lahr, 569 F.3d at 973 (quoting Ray, 502 U.S.

at 173). Because of its overarching goal of public disclosure,

FOIA “exemptions are to be interpreted narrowly.” Id.

On summary judgment, we employ a two-step standard of

review in FOIA cases. Lion Raisins Inc. v. U.S. Dep’t of

Agric., 354 F.3d 1072, 1078 (9th Cir. 2004). First, whether,

de novo, “an adequate factual basis exists to support the dis-

trict court’s decisions.” Milner v. U.S. Dep’t of the Navy, 575

F.3d 959, 963 (9th Cir. 2009). If so, “ ‘then we review the dis-

trict court’s conclusions of fact for clear error, while legal rul-

ings, including its decision that a particular exemption

applies, are reviewed de novo.’ ” Id. (quoting Lane v. Dep’t

of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008)). The burden

rests on the government to justify its decision to exclude dis-

closures under FOIA. U.S. Dep’t of Justice v. Reporters

EFF v. ODNI 5371

Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)

(“Reporters Comm.”).

B. Information on Carriers’ and their Agents’ Lobbying

Communications

1. FOIA Exemption 3

The government argues it is entitled to withhold the names

of the participating carriers and their agents pursuant to FOIA

Exemption 3. Due to confusion evident in the parties’ cross-

motions for summary judgment, the district court did not

squarely address the factual or legal basis of the government’s

Exemption 3 argument.

[3] FOIA Exemption 3 allows a responding agency to

withhold information “specifically exempted from disclosure

by statute.” 5 U.S.C. § 552(b)(3). The government argues two

statutes justify its withholdings: First, Section 103(c)(7) of the

National Security Act of 1947, obligating the Director of

National Intelligence to “protect intelligence sources and

methods from unauthorized disclosure,” 50 U.S.C. § 403-

1(i)(1) (2006); see also CIA v. Sims, 471 U.S. 159, 178-79

(1985); and second, Section 6 of the National Security

Agency Act of 1959, which prevents “disclosure of the orga-

nization or any function of the National Security Agency, or

any information with respect to the activities thereof, or of the

names, titles, salaries, or number of persons employed by

such agency,” Pub. L. No. 86-36, 73 Stat. 63, codified at 50

U.S.C. § 402 note.

Under these statutes and Exemption 3, the government’s

summary judgment brief argued, “ODNI and DOJ withheld

information that could reveal whether any particular telecom-

munications carrier has assisted, or may in the future assist,

the government with intelligence activities.” The government

claimed disclosure “could deter telecommunications compa-

nies from assisting the government in the future,” and disclo-

5372 EFF v. ODNI

sure “provides our adversaries with valuable information

about our intelligence sources, methods, and capabilities.”

[4] The government’s argument was predicated on the fol-

lowing inference: Revealing the identity of carriers and their

agents working for a carrier liability shield would allow for-

eign intelligence agents to determine contours of NSA intelli-

gence operations, sources, and methods. In other words,

knowledge of which firms were and were not lobbying for lia-

bility protection could lead to inferences regarding the firms

that participate in the surveillance program. EFF disputes the

propriety of this inference. However, because the district

court did not address Exemption 3 due to confusion in the

parties’ summary judgment briefing, we remand for the dis-

trict court to address these claims in the first instance. See

Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1147

(9th Cir. 2008).

EFF’s motion opposing the government’s summary judg-

ment motion is likely the source of the district court’s confu-

sion. The government relied on the following statement from

EFF’s motion in claiming EFF abandoned its objection to the

government’s withholding the names of telecommunications

firms and agents under Exemption 3: “EFF has decided not to

challenge . . . the withholding of any material under Exemp-

tions 1, 2, 3, or 7(E).” The district court, in passing, men-

tioned this same statement from EFF’s motion in failing to

discuss Exemption 3 in its summary judgment ruling.

Although EFF’s statement seems to abandon its Exemption

3 challenge, other language contradicts such a conclusion. For

example, the sentence quoted above ended in a footnote,

which included the following: “In some cases, the govern-

ment claims Exemptions 1 and/or 3 in conjunction with

Exemptions 5 and/or 6. EFF continues to challenge the

Exemption 5 and 6 withholdings to the extent the records can

be disclosed without revealing classified information or the

government’s intelligence sources and methods.” In the same

EFF v. ODNI 5373

paragraph with the confusing sentence, EFF went on to claim,

“as a result of EFF’s efforts to narrow the scope of the litiga-

tion, the only material still at issue relates to unclassified

communications between and among executive agencies,

Congress, the White House, and telecommunications compa-

nies concerning amendments to FISA, and the identities of

individual agents or representatives of the carriers within

those communications.”

The government’s reply to EFF claimed EFF had “clearly

abandoned its challenge of Exemption 3 withholdings,” and

the government did not discuss the merits of whether releas-

ing names of telecommunications firms and their agents was

adequately withheld under Exemption 3.

EFF countered, claiming the government’s arguments

under Exemption 3 were “coextensive” with the Exemption 6

arguments. EFF explained, “[a]s noted in EFF’s opening

brief, despite not challenging Exemption 3 directly, ‘EFF con-

tinues to challenge the Exemption 5 and 6 withholdings to the

extent that records can be disclosed without revealing classi-

fied information or the government’s intelligence sources and

methods.’ ” It continued, “[t]he identities of the individuals

contacting the government would reveal neither classified

information nor the government’s intelligence sources and

methods.” The parties thus placed the district court in the dif-

ficult position of determining, over disputed claims, whether

Exemption 3 claims were actually at issue.

The district court seemed to accept the government’s asser-

tion that EFF abandoned its Exemption 3 challenge, but, then,

when it found the government could not withhold the same

documents under Exemption 6, it ordered them released with-

out considering the documents for which the government also

claimed Exemption 3. Assuming the district court found EFF

abandoned its Exemption 3 arguments, these would appear to

be validly withheld documents under the government’s sup-

posedly unchallenged Exemption 3 claim.

5374 EFF v. ODNI

A single valid exemption is sufficient to support withhold-

ing. See Milner, 575 F.3d at 971 n.8; Painting Indus. of Haw.

Mkt. Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479,

1486 (9th Cir. 1994). Therefore, if the district court found

EFF had abandoned its argument against Exemption 3 with-

holding, the documents the government withheld pursuant to

Exemption 3 should not have been ordered released. If the

district court found EFF was actually challenging whether

releasing the names of telecommunications firms and their

agents constituted an unauthorized disclosure of intelligence

sources and methods, it should have undertaken that analysis.

[5] Based on the nature of EFF’s challenge, we take the

latter position. Because the district court did not review the

governments’ arguments pursuant to Exemption 3, we remand

for it to conduct the Exemption 3 review. See Pac. Fisheries,

Inc., 539 F.3d at 1147. A remand is particularly appropriate

because our two-step review of FOIA determinations presup-

poses the district court has determined a contested issue. See

Milner, 575 F.3d at 963; Berman v. CIA, 501 F.3d 1136,

1139-40 (9th Cir. 2007).

The record indicates EFF never conceded its challenge to

withholding the names of the carriers and their agents despite

its statement it was abandoning its Exemption 3 challenge.

Thus, finding EFF did relinquish this challenge, and deciding

the issue solely under Exemption 6, would not be an accurate

reading of EFF’s arguments as a whole, nor is it reason to

reject out-of-hand all challenges to the government’s with-

holding of the carriers’ and agents’ identities.

The government claims that releasing identities of firms

and individuals working for a carrier liability shield will

create an inference of the government’s sources of intelli-

gence. Determining whether this claim is meritorious may

require factual determinations, and it also may require—

though it may not—the reviewing court to view the disputed

documents in camera as opposed to simply relying on the

EFF v. ODNI 5375

Vaughn indices currently in the record. Further, our well-

established procedure for reviewing FOIA exemption deter-

minations is not perfectly applicable where, as here, the dis-

trict court did not make an actual determination. See Milner,

575 F.3d at 963; Berman, 501 F.3d at 1139-40.

[6] For the foregoing reasons, we vacate and remand the

district court’s Exemption 3 analysis, to the extent one exists,

for the district court to address whether the government prop-

erly withheld telecommunications firms’ and their agents’

identities pursuant to FOIA Exemption 3.

2. FOIA Exemption 6

Defendants also claim they are entitled to withhold the

names of the telecommunications carriers and their agents

pursuant to Exemption 6 to protect the agents’ personal pri-

vacy. Because satisfying a single FOIA exemption is all the

government must show to withhold a given piece of informa-

tion, see Berman, 501 F.3d at 1141 n.2, we must also reach

the Exemption 6 issue.

The district court found the “public interest in an informed

citizenry” outweighed the carriers’ agents’ “not substantial”

privacy interests. For the reasons explained below, we affirm

the district court on the Exemption 6 summary judgment grant

for EFF.

[7] Exemption 6 removes “personnel and medical files and

similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy” from FOIA’s dis-

closure requirements. 5 U.S.C. § 552(b)(6). In considering

whether Exemption 6 applies to a particular request for infor-

mation, we must consider, first, whether the information is

contained in a personnel, medical, or “similar” file, and, sec-

ond, “whether release of the information would constitute a

clearly unwarranted invasion of the person’s privacy.” U.S.

Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)

5376 EFF v. ODNI

(finding citizenship status properly withheld under Exemption

6). In conducting this second inquiry, we balance the individ-

ual’s privacy interest against “the extent to which FOIA’s

central purpose of opening agency action to public scrutiny

would be served by disclosure.” U.S. Dep’t of Def. v. Fed.

Labor Relations Auth., 510 U.S. 487, 491 (1994); see Lahr,

569 F.3d at 973 (A court “must balance the privacy interest

protected by the exemptions against the public interest in gov-

ernment openness that would be served by disclosure.”).

The first question is thus whether communications docu-

mented in the records in question constitute “similar” infor-

mation as that contained in personnel and medical files under

Exemption 6. As the government points out, EFF does not

contest whether the emails are “similar files.” Though this

may be a closer question than the government describes, we

assume without deciding that the documents at issue here

qualify as “similar files.” See Nat’l Ass’n of Home Builders

v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002) (assuming with-

out deciding that the documents in question were similar files

because invasion of privacy question was dispositive and

more straightforward).

[8] We next consider “whether release of the information

would constitute a clearly unwarranted invasion of that per-

son’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o deter-

mine whether a record is properly withheld, we must balance

the privacy interest protected by the exemptions against the

public interest in government openness that would be served

by disclosure.” Lahr, 569 F.3d at 973.

The district court concluded “that there is some, although

not a substantial, privacy interest in the withheld documents

indicating the identities of the private individuals and entities

who communicated with the ODNI and DOJ in connection

with the FISA amendments.” It found, however, “that the

public interest in an informed citizenry weighs in favor of dis-

closure” because “there is a strong public interest in disclo-

EFF v. ODNI 5377

sure of the identity of the individuals who contacted the

government . . . to protect telecommunications companies

from legal liability for their role in government surveillance

activities.” We agree.

[9] Because Exemption 6 cases often involve a dispute

over whether to redact a government employee’s name, or a

record of an individual in a large government database, there

is little authority on the privacy interest under Exemption 6

when a private individual voluntarily seeks to engage with

and persuade the government on a policy position. However,

as described below, the few cases considering a private party

attempting to influence government policy typically find in

favor of disclosure, lacking countervailing concerns not pres-

ent in this case. See, e.g., Alliance for the Wild Rockies v.

Dep’t of the Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999).

Perhaps the most factually analogous case is People for the

American Way Foundation v. National Park Service, in which

a district court rejected Exemption 6 withholding of the iden-

tities of a group urging the National Park Service to alter the

video shown at the Lincoln Memorial to remove “photographs

and video coverage of demonstrations that occurred at the

Lincoln Memorial, including gay rights, pro-choice and anti-

Vietnam War footage.” 503 F. Supp. 2d 284, 288-89 (D.D.C.

2007). Discussing Exemption 6, the court stated, “[w]hen a

citizen petitions his government to take some action, courts

have generally declined to find the identity of the citizen to

be information that raises privacy concerns under exemption

6.” Id. at 305-06 (internal quotation marks omitted).

The cases considering this issue largely reason along the

same lines. Although some cases have found little public

interest in disclosing the name of a constituent writing to a

member of Congress, they recognize the obvious distinction

between that and the public’s interest in knowing which polit-

ically active groups affect government decision making. See

id. (distinguishing constituent letters from more involved

5378 EFF v. ODNI

forms of policy influence). Compare Strout v. U.S. Parole

Comm’n, 40 F.3d 136, 139 (6th Cir. 1994) (finding consider-

able privacy interest in individuals writing to oppose parole

request), and Kidd v. Dep’t of Justice, 362 F. Supp. 2d 291,

297 (D.D.C. 2005) (“Providing personal identifying informa-

tion commonly found in constituent letters [to members of

Congress] does not advance the purposes of FOIA and, as

such, may be withheld from FOIA requests.”), and Voinche

v. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996) (“There is no

reason to believe that the public will obtain a better under-

standing of the workings of various agencies by learning the

identities of . . . private citizens who wrote to government

officials . . . .”), with Kurzon v. Dep’t of Health & Human

Servs., 649 F.2d 65, 69-70 (1st Cir.1981) (rejecting govern-

ment’s Exemption 6 argument to withhold names of scientists

turned down for research funding, holding that although the

“protection of professional reputation, even in this strict

sense, is not beyond the purview of exemption 6, it is not at

its core”), and Lardner v. U.S. Dep’t of Justice, No. Civ.A.03-

0180(JDB), 2005 WL 758267, at *18 (D.D.C. Mar. 31, 2005)

(holding public interest in identifying persons influencing

presidential pardon power outweighed modest privacy inter-

est), and Judicial Watch of Florida, Inc. v. U.S. Dep’t of Jus-

tice, 102 F. Supp. 2d 6, 18 (D.D.C. 2000) (“Depriving the

public of knowledge of the writer’s identity would deprive the

public of a fact which could suggest that their Justice Depart-

ment had been steered by political pressure rather than by the

relevant facts and law.”), and Alliance for the Wild Rockies,

53 F. Supp. 2d at 36-38 (names and addresses of individuals

who submitted comments on proposed rulemaking could not

be withheld under Exemption 6 because of public interest in

disclosure).

Here, we balance the public interest in obtaining informa-

tion about the effects of lobbying on government decision

making against the privacy concerns of telecommunications

industry lobbyists in keeping their names and the nature of

their employment activities private. Under Exemption 6, our

EFF v. ODNI 5379

inquiry is primarily concerned with privacy, here that of the

carriers’ agents and lobbyists.

[10] There is a clear public interest in public knowledge of

the methods through which well-connected corporate lobby-

ists wield their influence. As the Supreme Court has

explained, “[o]fficial information that sheds light on an agen-

cy’s performance of its statutory duties” merits disclosure.

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

[11] 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 reach-

ing its own policy decisions. Such information will allow the

public to draw inferences comparing the various agents’ influ-

ence in relation to each other and compared to the agents’ or

their corporate sponsors’ political activity and contributions to

either the President or key members of Congress. In short, we

find the public interest in “government openness that would

be served by disclosure” of how the government makes deci-

sions potentially shielding firms lobbying (and donating to

campaigns) from nine-figure liabilities to be plainly impor-

tant. See Lahr, 569 F.3d at 973.

[12] The district court also correctly found that lobbyists’

privacy interests in the nature of their employment, should not

counterbalance the public’s strong interest. See Sims v. CIA,

642 F.2d 562, 574-75 (D.C. Cir. 1980); People for the Am.

Way Found., 503 F. Supp. 2d at 303-07. Putting aside the

national security concerns discussed above, as we must under

Exemption 6, government acknowledgment of a lobbyist’s

lobbying activities does not reveal “sensitive personal infor-

mation” about the individual rising to a “clearly unwarranted

invasion of personal privacy.” Judicial Watch, Inc. v. Dep’t of

Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Reed v. NLRB,

927 F.2d 1249, 1251 (D.C. Cir. 1991). “Official information

that sheds light on an agency’s performance of its statutory

duties falls squarely within [Exemption 6’s] statutory pur-

5380 EFF v. ODNI

pose.” Reporters Comm., 489 U.S. at 773. Unlike situations

in which private citizens find themselves in a large govern-

ment database because of conduct unrelated to the inquiry

underlying the FOIA action, when “[t]he applicant is petition-

ing the government for the performance of a public act; this

is not a situation where he is a third-party who finds himself

in government records through no action of his own.” Lard-

ner, 2005 WL 758267 at *17.

[13] With regard to the carriers’ agents’ email addresses,

however, the district court did not perform the same careful

balancing in which it engaged for the agents’ names. As EFF

explained, the public interest in disclosing the identities of the

lobbyists’ names is to shed light on which companies and

which individuals influence government decision making. We

agree with that rationale, but we find no corresponding inter-

est as to the carriers’ agents’ email addresses. Yet we can eas-

ily envision possible privacy invasions resulting from public

disclosure of the email addresses. EFF provides no argument,

and we can think of none, countering our conclusion that the

email addresses may add to the risk of privacy invasion with

little additional benefit to the public interest. See Forest Serv.

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

1021, 1025 (9th Cir. 2008) (“[I]nformation about private citi-

zens that is accumulated in various governmental files but that

reveals little or nothing about an agency’s own conduct is not

the type of information to which FOIA permits access.”)

(internal quotation marks omitted).

[14] Thus the carriers’ agents’ email addresses, when not

needed to identify the party communicating with the govern-

ment, are protected from release by Exemption 6. If, however,

a particular email address is the only way to identify the carri-

ers’ agent at issue from the disputed records, such information

is not properly withheld under Exemption 6 because this

minor privacy interest does not counterbalance the robust

interest of citizens’ right to know “what their government is

EFF v. ODNI 5381

up to.” Reporters Comm., 489 U.S. at 773 (internal quotation

marks omitted).

[15] In short, we affirm the district court’s careful balanc-

ing of the public interest against the privacy interests of

agents for the carriers, finding disclosure of the names of peo-

ple seeking to influence the agencies’ pursuit of a retroactive

carrier shield does not constitute “a clearly unwarranted inva-

sion of personal privacy.” 5 U.S.C. § 552(b)(6) (2006). How-

ever, we reverse the district court as to the agents’ email

addresses—so long as they are not needed to identify the

agent—for which there is little public interest in disclosure

and at least some privacy interest.

C. Information Excluded Under Exemption 5

The parties also dispute the propriety of the government

withholding information, primarily in emails, pursuant to

FOIA Exemption 5. Exemption 5 provides that FOIA “does

not apply to matters that are . . . inter-agency or intra-agency

memorandums or letters which would not be available by law

to a party other than an agency in litigation with the agency.”

Id. § 552(b)(5).

In the district court, the government attempted to withhold

communications regarding the FISA Amendments between

the Executive Branch, Congress, and the telecommunications

firms under Exemption 5. As the district court explained, “the

bulk of the records at issue consist[ed] of confidential email

messages exchanged between ODNI or DOJ official[s] and

congressional staff in which the parties to the emails dis-

cussed, analyzed and negotiated possible amendments to

FISA.” The district court found the government had improp-

erly withheld documents under Exemption 5 and ordered the

disclosure of all disputed documents, including all

“documents exchanged between ODNI and DOJ officials and

congressional staff or those documents regarding communica-

5382 EFF v. ODNI

tions between representatives of the telecommunications com-

panies and government officials.”

Unlike more thorough district court opinions in compli-

cated FOIA cases specifying groups of documents to disclose

according to the government’s Vaughn indices, see, e.g., Peo-

ple for the Am. Way Found., 503 F. Supp. 2d at 297-304 (ana-

lyzing each category of withheld documents in detail), the

district court here ordered complete disclosure of all disputed

documents without focusing on information in the Vaughn

indices showing distribution only within the DOJ and ODNI

or between the DOJ and the White House.

After the district court’s disclosure order, the Solicitor Gen-

eral chose not to appeal the Exemption 5 ruling as it pertained

to the documents exchanged between the Executive Branch

and Congress, as well as those documents in which the tele-

communications firms were involved in the exchange. See

Dep’t of the Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 8 (2001). The government thus released

these documents per the district court order, redacting infor-

mation identifying telecommunications firms or their agents

pursuant to the Exemption 3 and Exemption 6 issues dis-

cussed above. However, the government essentially takes

issue with the thoroughness of the district court, noting its

broad order includes categories of information from the

Vaughn indices circulated only within executive agencies and

the White House.

EFF focuses on arguments regarding whether the Executive

Office of the President is an “agency,” and how we should

address the privilege claims if we find the district court

improperly concluded all documents were not inter-branch or

intra-branch communications. Presumably EFF focuses on

these arguments because, in passing, it concedes the district

court erred in finding all documents at issue were not inter-

branch or intra-branch memorandums or letters. EFF notes,

“[t]he government argues, and EFF agrees, that communica-

EFF v. ODNI 5383

tions within DOJ and ODNI or between Executive Branch

agencies satisfy the threshold.”

This explanation highlights the district court’s error and

demonstrates why remand on Exemption 5 is necessary.

While a district court’s broad rejection of an Exemption 5

withholding is not necessarily problematic, its inquiry should

be fact-specific, and, as demonstrated below, the absence of

a careful review of the record in this case warrants remand.

[16] To qualify for Exemption 5’s protection from disclo-

sure, “a document must . . . satisfy two conditions: its source

must be a Government agency, and it must fall within the

ambit of a privilege against discovery under judicial standards

that would govern litigation against the agency that holds it.”

Klamath, 532 U.S. at 8.

The government primarily challenges the district court’s

finding that none of the still-disputed documents are “inter-

agency or intra-agency memorandums or letters.” See 5

U.S.C. § 552(b)(5). In support of its argument, the govern-

ment partially undertakes the exercise that the district court

should have engaged to reach its decision: the government

looks to specific entries in the Vaughn indices and declara-

tions, arguing they are inter-agency or intra-agency docu-

ments. Specifically, the government points to a number of

documents which it convincingly argues the district court

improperly found were not inter-agency or intra-agency mem-

orandums or letters.4

4

Relying on the declaration of Melanie Ann Pustay, Director of the

Office of Information and Privacy (“OIP”), U.S. DOJ, the government

cites the following documents:

1. OIP Vaughn Index categories 1, 2, 3, and 9, which are “con-

fidential communications exchanged within the Executive

Branch or between offices within the Department of Justice

discussing options, forwarding draft language, and exchang-

ing ideas regarding FISA amendments.”

5384 EFF v. ODNI

[17] Examining the Vaughn indices themselves shows the

importance of engaging in the admittedly time-consuming

analysis not performed here. Nearly all of the characteriza-

2. OIP Vaughn Index category 4, which “contains draft memo-

randa, notes, and talking points regarding amendments to the

FISA.”

3. OIP Vaughn Index categories 3 and 9, which include deliber-

ative emails exchanged within DOJ.

4. OIP Vaughn Index categories 1 and 2, which include deliber-

ative emails exchanged between DOJ and other Executive

Branch and White House officials.

Relying on the declaration of Charles Steele, Chief of Staff of DOJ’s

National Security Division, the government cites the following document:

1. NSD Vaughn Index groups 2 and 3, which are “communica-

tions exchanged within the Executive Branch or offices

within the Department of Justice.”

Relying on the declaration of Paul Colborn, Special Counsel in the

OLC, the government cites the following documents:

1. OLC Vaughn Index numbers 4, 9, 112, 114, and 115, which

“consist of internal Executive Branch e-mail deliberations

regarding communications . . . concerning FISA.”

2. OLC Vaughn Index numbers 46 and 74, which are “intra

Executive Branch e-mails discussing the substance of com-

munications with counsel for the telecommunications com-

panies sharing a common interest with the United States.”

3. 20 emails, for which the Vaughn Index numbers are not spec-

ified, “exchanged between OLC attorneys and other Depart-

ment of Executive Branch staff.”

Relying on the declaration of John Hackett, Director of the Information

Management Office for the ODNI, the government cites the following

document:

1. ODNI Vaughn Index category 5, which is an “email chain”

”between ODNI and NSA officials.”

This list may not be entirely exhaustive, but it is a powerful example

of documents that, according to the relevant Vaughn index, were

exchanged within the Executive Branch or between agencies.

EFF v. ODNI 5385

tions in the government-offered declarations comport with the

descriptions in the Vaughn indices of inter-branch or intra-

branch communications. Thus, for these emails, the district

court should have more closely examined the documents to

determine whether they were in fact inter-agency or intra-

agency memorandums or letters. Including them in a broad

disclosure order was error under any standard.

In addition, in at least two instances (OLC Vaughn Index

numbers 46 & 74), the plain language of the declaration

seems to imply an intra-Executive Branch email when, in fact,

the Vaughn Index makes clear the communications at issue

were between the Executive Branch and telecommunications

company representatives. This highlights the need for a fact-

specific inquiry under Exemption 5.

Thus the district court’s blanket finding that all of the dis-

puted communications were not inter-branch or intra-branch

memorandums or letters eligible for privilege analysis under

Exemption 5 is problematic, as is clear from the face of the

government’s declarations and Vaughn indices.5 This may

have occurred because the documents in question were

included with so many other documents exchanged between

the Executive Branch and either Congress or the telecommu-

nications carriers, as to which the district court correctly con-

cluded Exemption 5 did not apply.

[18] Accordingly, we remand to the district court on

Exemption 5 to examine each contested category of docu-

ments to determine whether its actual sender(s) and recipi-

ent(s) render it an inter-agency or intra-agency document,

5

This is not to say the district court must find all of these documents

inter-agency or intra-agency memorandums or letters on remand. How-

ever, it should examine the Vaughn indices and declarations, and conduct

an in camera examination of the actual documents if necessary, to deter-

mine exactly who in the government was transmitting and receiving the

information and whether Exemption 5 thus applies (in which case the dis-

trict court would have to consider if the information was privileged).

5386 EFF v. ODNI

keeping in mind the contours of the doctrine concerning

whether the Executive Office of the President and certain

other White House components are “agencies” for FOIA pur-

poses. See, e.g., 5 U.S.C. § 552(f)(1) (2006) (“ ‘[A]gency’ as

defined in section 551(1) of this title includes any executive

department, military department, Government corporation,

Government controlled corporation, or other establishment in

the executive branch of the Government (including the Execu-

tive Office of the President.)”); Kissinger v. Reporters Comm.

for Freedom of the Press, 445 U.S. 136, 156 (1980); Judicial

Watch Inc., 365 F.3d at 1113-22. For those documents the dis-

trict court classifies as inter-agency or intra-agency, the dis-

trict court will then have to consider whether any of the

government’s asserted privileges allow withholding. See

Klamath, 532 U.S. at 1865.

III. CONCLUSION

[19] We affirm the district court’s grant of summary judg-

ment for EFF as to the release of names and email addresses

under FOIA Exemption 6, though we reverse as to email

addresses only for which other information identifying the

agent at issue is available in the communication. This order

may not necessarily result in disclosure of names for which

the government also argues withholding pursuant to Exemp-

tion 3, because we vacate the district court’s denial of sum-

mary judgment for the government and grant of summary

judgment for EFF as to FOIA Exemptions 3 and 5, and

remand for consideration of these Exemptions consistent with

this Opinion.

AFFIRMED in part, REVERSED in part, VACATED

and REMANDED in part. Each party shall bear its own

costs on appeal.