The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRUDENTIAL LOCATIONS LLC, a
Hawaii limited liability company, No. 09-16995
Plaintiff-Appellant, D.C. No.
v. 1:09-cv-00128-
U. S. DEPARTMENT OF HOUSING AND SOM-KSC
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
Filed June 9, 2011
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
7597
7600 PRUDENTIAL LOCATIONS v. HUD
COUNSEL
Paul Alston and Jason H. Kim, Alston Hunt Floyd & Ing,
Honolulu, Hawaii, for the plaintiff-appellant.
Tony West, Assistant Attorney General, Steve Frank and
Leonard Schaitman, Attorneys, U.S. Department of Justice,
Civil Division, Washington, D.C., and Edward H. Kubo, Jr.,
United States Attorney, Honolulu, Hawaii, for the defendant-
appellee.
OPINION
BERZON, Circuit Judge:
This is a Freedom of Information Act (“FOIA”) case con-
cerning a request for documents about individuals who
reported to the U.S. Department of Housing and Urban Devel-
opment (“HUD”) their suspicions that Prudential Locations
LLC (“Prudential”), a real estate company, was violating the
law. HUD produced the documents, but redacted the two of
them at issue here to conceal information that identified the
complaining individuals. In defense of the redactions, HUD
asserted, and the district court agreed, that the redactions were
justified pursuant to FOIA Exemption 6, which allows an
agency to withhold “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwar-
ranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6);
see Prudential Locations LLC v. HUD, 646 F. Supp. 2d 1221,
1228 (D. Haw. 2009).
Under the case law, Exemption 6 requires courts to balance
the personal privacy interests protected by the exemption
against the public interest furthered by disclosure. See Lahr v.
Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009).
That inquiry requires assessing the magnitude of the privacy
PRUDENTIAL LOCATIONS v. HUD 7601
interests at stake and the severity of the invasion of those
interests that would be occasioned by disclosure. Here, we are
faced with an additional, different question: How likely is it
that disclosure would result in any privacy invasion at all? We
remand because HUD has not provided a factual basis suffi-
cient to answer any of those three questions. See Fiduccia v.
U.S. Dep’t of Justice, 185 F.3d 1035, 1040 (9th Cir. 1999);
Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991). In light of
the FOIA’s strong presumption in favor of disclosure, and the
narrow reach of the FOIA exemptions, see, e.g., Milner v.
Dep’t of Navy, 131 S. Ct. 1259, 1265 (2011), we cannot
affirm the grant of summary judgment on the current record.
While HUD has conjured the specter of privacy interests, it
has not adduced evidence establishing such interests are actu-
ally at stake, or if they are, how much weight they should be
accorded.
I
HUD is responsible for administering and enforcing the
Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§§ 2601-2617. One of the purposes of RESPA is to
“eliminat[e] . . . kickbacks or referral fees that tend to increase
unnecessarily the costs of certain settlement services.” 12
U.S.C. § 2601(b)(2). To achieve that purpose, the act prohib-
its, among other things, giving or accepting “fee[s], kick-
back[s] or thing[s] of value” for referring “business incident
to or a part of a real estate settlement service involving a fed-
erally related mortgage loan.” Id. § 2607(a). The documents
at issue here are two communications notifying HUD of sus-
pected violations of RESPA’s prohibitions on kickbacks and
referral fees.
The first document is a short letter dated July 7, 2003 (the
“2003 Letter”). The letter averred that “Prudential Locations
Real Estate Salespersons get monetary kickbacks ($$,$$$) for
the amount of business that is referred to Wells Fargo.”
Attached to the letter was an article from the Honolulu Star-
7602 PRUDENTIAL LOCATIONS v. HUD
Bulletin purportedly supporting the allegations. The informant
did not expressly request an investigation, but did ask: “Is it
a violation of RESPA for real estate agents to receive com-
pensation for steering business to a specific Lender?” The
author of the letter neither requested anonymity nor affirma-
tively authorized release of his name.
Based on that letter, HUD initiated an investigation into
Prudential’s business practices, ultimately confirming the
informant’s allegations. HUD found Prudential had violated
RESPA by giving valuable things, including expensive vaca-
tion packages and a lease on a Mercedes-Benz, to its sales-
people in return for referral of business to Wells Fargo Home
Mortgage Hawaii, LLC, a company in which Prudential had
a financial interest. After the investigation, Prudential entered
into a settlement agreement with HUD in 2005, consenting to
a $48,000 penalty and promising not to violate RESPA in the
future.
The second document at issue is an email, dated January
19, 2008 (the “2008 Email”), alleging that Prudential was
continuing to violate RESPA even after the settlement. The
author of the email claimed to know about the continued vio-
lations because “an agent from Prudential . . . expressed con-
cern that his company was violating RESPA laws again.” The
sender urged HUD to “interview [Prudential’s] agents [to]
confirm there was a direct violation of RESPA again and be
very strict on them.” Unlike the first complainant, this author
specifically requested anonymity in his communication to
HUD.
After receiving this email, HUD initiated a second investi-
gation of Prudential. That investigation did not reveal any
RESPA violations, and it was closed in March 2009.
In June 2008, while the second investigation was in prog-
ress, Prudential filed a FOIA request with HUD, seeking
“[d]ocuments sufficient to show the identity of all parties who
PRUDENTIAL LOCATIONS v. HUD 7603
provided information to HUD relating to the initiation” of the
two investigations. HUD produced about four hundred pages
of responsive documents in March 2009.
As part of that bundle, HUD released the 2003 Letter,
redacting what appears to be a letterhead and a signature.
HUD also produced a redacted copy of the 2008 Email, con-
cealing the information contained in the email’s “from” line,
the first half of the first sentence of the email, and the signa-
ture line. Also redacted was a sentence in the body of the
email, leaving it to read: “Please take this action and I can be
contacted at [REDACTED] but I would like to remain anony-
mous [REDACTED].” The first redaction in that sentence
looks to be about the length of a phone number or email
address, and the second spans approximately 10-12 average-
length words.
In a letter accompanying the released documents, HUD
relied on FOIA Exemption 6 to justify the redactions, stating
that “[r]elease of this information would constitute an unwar-
ranted invasion of personal privacy” and “[t]he interest of the
general public in reviewing these portions of government doc-
uments does not outweigh the individuals’ right to privacy.”
Unsatisfied with this response, Prudential filed a complaint
in the United States District Court for the District of Hawai’i
seeking unredacted copies of the two documents. In reply,
HUD supported withholding the information by submitting a
declaration from Ivy Jackson, the Director of the Office of
RESPA and Interstate Land Sales at HUD. Jackson averred
that “[i]t has been the policy of this office to never disclose
the identity of a complainant whether or not the complainant
affirmatively authorized the release. . . . These industry insid-
ers are potentially vulnerable to retaliation, i.e. loss of
employment, loss of business and legal action.” She further
declared that “when speaking before industry groups I have
stated that it is the policy of the office not to disclose the iden-
tity of any complainant.” Finally, according to Jackson, the
7604 PRUDENTIAL LOCATIONS v. HUD
RESPA investigations office has a “consistent policy and
practice” of “protect[ing] the identity of persons providing
information about possible RESPA violations, unless the per-
son has specifically authorized release of his or her name.”
On cross-motions for summary judgment, the district court
agreed with HUD that Exemption 6 justified redacting the
information, and granted the agency’s motion. Prudential
appealed.
II
1
We apply a two-step standard of review to summary judg-
ment in FOIA cases. We “first determine[ ] under a de novo
standard whether an adequate factual basis exists to support
the district court’s decision[ ].” Lane v. Dep’t of Interior, 523
F.3d 1128, 1135 (9th Cir. 2008) (citing Lion Raisins, Inc. v.
U.S. Dep’t of Agric., 354 F.3d 1072, 1078 (9th Cir. 2004)). If
the district court did not have an adequate factual basis, we
remand. Fiduccia, 185 F.3d at 1040. “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, 523 F.3d at 1135.
2
[1] The FOIA is a disclosure statute, enacted to “permit
access to official information long shielded unnecessarily
from public view.” Milner, 131 S. Ct. at 1262 (quoting EPA
v. Mink, 410 U.S. 73, 80 (1973)). Such access to government
information helps “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 gov-
erned.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation and quotation marks omitted).
PRUDENTIAL LOCATIONS v. HUD 7605
Of course, not all governmental information must be made
publicly available; accordingly, the FOIA contains specific
discretionary exemptions to its disclosure requirements. See 5
U.S.C. § 552(b)(1)-(9); Elec. Frontier Found. v. Office of the
Dir. of Nat’l Intelligence, ___ F.3d ___, 2010 WL 1407955,
at *4 (9th Cir. Apr. 9, 2010) (citing Lahr, 569 F.3d at 973).
In light of the Act’s purpose of encouraging ready access to
information, however, “these exemptions are explicitly made
exclusive, and must be narrowly construed.” Milner, 131 S.
Ct. at 1262 (citations and quotation marks omitted).
Moreover, “the 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 (1991); Maricopa Audubon Soc’y v. U.S. For-
est Serv., 108 F.3d 1089, 1092 (9th Cir. 1997). We apply that
burden “with an awareness that the plaintiff, who does not
have access to the withheld materials, ‘is at a distinct disad-
vantage in attempting to controvert the agency’s claims.’ ”
Maricopa, 108 F.3d at 1092 (quoting Ollestad v. Kelley, 573
F.2d 1109, 1110 (9th Cir. 1978)). It follows, of course, that
we cannot take the government at its word when it claims an
exemption applies; like all parties on summary judgment, the
government must adduce specific evidence to carry its bur-
den. See Fed. R. Civ. P. 56(c).
[2] Exemption 6, the exemption relied on by HUD, applies
to “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). Prudential does not
dispute that the 2003 Letter and 2008 Email are “similar files”
under Exemption 6. We express no view on that question and
assume without deciding that the documents qualify. The only
issue then is whether disclosing the redacted information
“would constitute a clearly unwarranted invasion of personal
privacy.” Id.
[3] To answer that question, we must first confirm that
some “personal privacy” interest is at stake. See Church of
7606 PRUDENTIAL LOCATIONS v. HUD
Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 746
(9th Cir. 1979) (recognizing that courts “should first deter-
mine if disclosure would constitute an invasion of privacy”
(quoting Rural Hous. Alliance v. U.S. Dep’t of Agric., 498
F.2d 73, 77 (D.C. Cir. 1974)); see also Multi Ag Media LLC
v. Dep’t of Agric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008);
Schiffer v. FBI, 78 F.3d 1405, 1410 (9th Cir. 1996). For
instance, releasing intimate information about an individual’s
“marital and employment status, children, [and] living condi-
tions” no doubt implicates privacy interests protected by
Exemption 6 if “linked publicly with particular, named indi-
viduals.” Ray, 502 U.S. at 175-76. In contrast, disclosure of
documents threatening merely to tarnish a corporation’s repu-
tation would not, as corporations do not have personal privacy
interests under the FOIA. See FCC v. AT & T Inc., 131 S. Ct.
1177, 1185 (2011). A “ ‘nontrivial privacy interest’ ” can
sometimes be sufficient to justify withholding information,
see Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1026-27 (9th Cir. 2008) (quoting U.S. Dep’t
of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 501
(1994)), but if no nontrivial privacy interest is implicated, the
FOIA demands disclosure. See Multi Ag Media, 515 F.3d at
1229-30.
[4] If some nontrivial personal privacy interest is at stake,
the government can withhold the information only upon a
showing that the invasion of privacy would be “clearly
unwarranted.” 5 U.S.C. § 552(b)(6). That inquiry, ordinarily
the meat and potatoes of the Exemption 6 analysis, requires
us to “balance the privacy interest protected by the exemp-
tion[ ] against the public interest in government openness that
would be served by disclosure.” Lahr, 569 F.3d at 973.
[5] Finally, we must assess the likelihood that a privacy
invasion will occur. We have not articulated a precise stan-
dard governing what the government must show in this
respect, but a few precepts are apparent: Exemption 6 speaks
of disclosure that “would constitute a clearly unwarranted
PRUDENTIAL LOCATIONS v. HUD 7607
invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (emphasis
added). At a minimum, and unsurprisingly given the emphatic
“would” requirement in the statutory text, the threat to privacy
interests must be “more palpable than [a] mere possibilit[y].”
Dep’t of Air Force v. Rose, 425 U.S. 352, 380 n.19 (1976).
The government, however, is not required to establish that a
privacy invasion is certain to occur. Rather, it is enough to
show a “substantial probability that the disclosure will lead
to” an invasion of privacy. Painting Indus. of Haw. Mkt.
Recovery Fund v. Dep’t of Air Force, 26 F.3d 1479, 1483 (9th
Cir. 1994) (quoting Nat’l Ass’n of Retired Fed. Emps. v.
Horner, 879 F.2d 873, 878 (D.C. Cir. 1989)).
The “substantial probability” standard is necessarily quite
a high threshold. For one, it is a judicial gloss on the statute’s
plain text, which requires a showing that making information
public “would constitute”—rather than “might” or “could”
constitute—an invasion of privacy, connoting something
nearly certain to occur. Moreover, Exemption 6 has a law
enforcement analogue, Exemption 7(C), which allows the
government to withhold “records or information compiled for
law enforcement purposes” if disclosure “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C) (emphasis added). The
marked difference in the statutory text of these exemptions
indicates that our “substantial probability” gloss on Exemp-
tion 6 requires a significantly higher showing that an invasion
will occur than the “could reasonably be expected” standard
found in Exemption 7(C). See Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 166 (2004) (“Exemption
7(C)’s . . . breadth [as compared to Exemption 6] is no mere
accident in drafting. We know Congress gave special consid-
eration to the language in Exemption 7(C) because it was the
result of specific amendments to an existing statute.” (citation
omitted)); Hunt v. FBI, 972 F.2d 286, 287-88 (9th Cir. 1992)
7608 PRUDENTIAL LOCATIONS v. HUD
(acknowledging textual differences between exemptions 6 and
7(C)).1
With these principles in mind, we turn to the information
in dispute here.
3
[6] Releasing unredacted versions of the 2003 Letter and
the 2008 Email could, but only possibly, invade personal pri-
vacy interests under Exemption 6. For instance, if the com-
plainants work at Prudential, they could be stigmatized as
disloyal employees by management and face retaliation in
their employment. They might also be harassed or mistreated
by their colleagues. After all, the kick-back scheme uncovered
by HUD involved employee benefits—parties, expensive
prizes, and exotic vacations—and some co-workers might
resent losing such perks in the future. Likewise, the complain-
ants could face retaliation even if they were, but are no lon-
ger, employees of Prudential. Disclosure of their
whistleblower activities, for example, could affect their ability
to obtain positive job references, diminishing their employ-
ment prospects. Also, even if the informants now work in
non-managerial positions in the same industry as Prudential,
they could face some stigma or harassment, as their employ-
ers or colleagues might view them as troublemakers or busy-
bodies.
1
The exemptions differ in another way as well: Exemption 7(C) does
not require that a privacy invasion be “clearly” unwarranted. That exemp-
tion is therefore satisfied upon a lesser showing by the government of the
strength of the privacy interests required to override the respective public
interest at stake. See Favish, 541 U.S. at 165-66; Lahr, 569 F.3d at 974.
Despite these differences, exemptions 6 and 7(C) require balancing the
same privacy and public interest factors, so cases interpreting one exemp-
tion can illuminate application of the other. See Fed. Labor Relations
Auth., 510 U.S. at 496 n.6. HUD has not invoked Exemption 7(C) in this
case, and we express no view on whether it would have been applicable.
PRUDENTIAL LOCATIONS v. HUD 7609
[7] These examples of possible stigmatization, harassment,
and retaliation resulting from cooperation with a governmen-
tal investigation would be cognizable personal privacy inter-
ests under the Exemption 6 precedents. For instance, in
United States Department of State v. Ray, the plaintiff sought
interviews conducted by the State Department with emigrants
who had been involuntarily returned to Haiti by the United
States. 502 U.S. at 167. The interviews were part of a pro-
gram to monitor compliance by the Haitian Government with
its assurance that returning Haitians would not be subject to
prosecution for illegally departing the country. Id. at 167-68.
The government produced summaries of the interviews but
relied on Exemption 6 to redact the names and other identify-
ing information from the documents. Id. at 168-69.
The Supreme Court acknowledged that the emigrants had
privacy interests in personal details revealed in the interviews,
such as marital and employment status, if those details could
be linked to particular individuals. See id. at 175-76. More
pertinent here, the Court also held that revealing their cooper-
ation with the State Department could subject them to “em-
barrassment in their social and community relationships.” Id.
at 176 (quotation marks and citation omitted). Further, the
interviewees had privacy interests in avoiding “retaliatory
action that might result from a renewed interest in their
aborted attempts to emigrate.” Id. at 177.
We have also similarly recognized privacy interests under
exemptions 6 and 7(C) even though intimate personal details
were not at stake. In Forest Service Employees, for example,
a watchdog organization requested the release of an agency
report regarding an incident in which two firefighters died
during a wildfire. 524 F.3d at 1022-23. The fire received sig-
nificant public attention, and the Forest Service was heavily
criticized for creating unsafe working conditions. The agency
thereupon generated a report, concluding its “own manage-
ment failings contributed to the tragedy.” Id. at 1023. The
Forest Service released its report but redacted under Exemp-
7610 PRUDENTIAL LOCATIONS v. HUD
tion 6 the names of all twenty-three employees identified
therein, some of whom were subject to disciplinary sanctions,
and some of whom “merely served as cooperating witnesses”
in the investigation. Id. at 1023.
We affirmed the application of Exemption 6, holding that
the employees had cognizable privacy interests in avoiding
the “embarrassment and stigma” that might arise from associ-
ation with the incident. Id. at 1026. We also acknowledged
the employees possessed privacy interests in avoiding “ha-
rassment” by the plaintiff, who planned to contact them, as
well as by the media, which was likely to follow suit given
the significant public attention generated by the fire. Id.; see
also Lahr, 569 F.3d at 975-77 (recognizing a privacy interest
under Exemption 7(C) implicated by releasing the names of
eyewitnesses to an airplane crash, because it would reveal
publicly their involvement in the ensuing investigation, and it
was likely that the plaintiff and the media would contact them
about the incident).
Therefore, if the complainants are or were employed by
Prudential, or even if they worked in non-managerial posi-
tions in the same industry as Prudential, there might well be
a substantial probability that disclosure would lead to an inva-
sion of personal privacy—namely, revealing their whistle-
blower status could result in stigmatization, harassment, or
retaliation.
[8] At the same time, the disclosure of names and other
identifying information is not “inherently and always a signif-
icant threat to the privacy of the [named] individuals.” Ray,
502 U.S. at 176 n.12. A threat may be “de minimis” if disclo-
sure reveals nothing about the individual pertinent to his pri-
vacy, and no adverse consequences are likely to ensue. Id.
(citation omitted). Here, releasing the informants’ identifying
information might not threaten any nontrivial invasion of per-
sonal privacy. Even if some cognizable interest is at stake, it
PRUDENTIAL LOCATIONS v. HUD 7611
could be substantially less compelling than in the hypothetical
scenarios suggested above.
We fail to see, for example, how disclosing the names of
managerial employees at an industry competitor of Prudential
would infringe personal privacy interests in any nontrivial
way. Such individuals would not face an apparent risk of
harassment or stigmatization, and because such complaints
would have been made primarily for business reasons, any
plausible personal privacy interests would be nonexistent or
seriously diminished.2 See Elec. Frontier Found., ___ F.3d
___, 2010 WL 1407955, at *10 (holding that the personal pri-
vacy interests of industry lobbyists in their employment activ-
ities were not weighty, as disclosing their names would “not
reveal sensitive personal information” (citation and quotation
marks omitted)); see also Wash. Post Co. v. U.S. Dep’t of Jus-
tice, 863 F.2d 96, 100 (D.C. Cir. 1988) (“Information relating
to business judgments and relationships does not qualify” as
personal privacy interests under Exemption 7(C), “even if dis-
closure might tarnish someone’s professional reputation”
(citations omitted)).
Likewise, complainants entirely unaffiliated with Pruden-
tial or the real estate industry might have some nontrivial pri-
vacy interest in not being associated with the investigation,
see Lahr, 569 F.3d at 974-75; Schiffer, 78 F.3d at 1410, but
2
Similarly, it is not unheard of for unscrupulous individuals to accuse
a business of legal violations to depress the company’s stock price or oth-
erwise gain an advantage in securities trading. See Medifast, Inc. v. Min-
kow, 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 com-
pany, including accusations of regulatory violations, designed “to increase
the value of a short position”); see also Robbie Whelan, Barry Minkow
Charged in Fraud Against Lennar, WALL ST. J., Mar. 25, 2011, available
at http://online.wsj.com/article/SB100014240527487044381045762196
62795056534.html (reporting a defendant’s anticipated guilty plea to
charges that he induced federal law enforcement to investigate a company,
and then bet against that company’s stock) (last visited May 31, 2011).
7612 PRUDENTIAL LOCATIONS v. HUD
it is doubtful on these facts that any such interest would mir-
ror the ordinary concerns accompanying law enforcement
investigations, such as fear of retaliation or harassment. At a
minimum, a cognizable privacy interest would need to be
identified, and could then, if weak, be discounted in the bal-
ancing test. It might also be the case that any risk to personal
privacy, if one could be identified, would be no “more palpa-
ble than [a] mere possibilit[y],” Rose, 425 U.S. at 380 n.19,
and so insufficient to justify the redactions no matter the pub-
lic interest.
Finally, we have long recognized that government officials,
particularly those in senior positions, have diminished privacy
interests. See Lahr, 569 F.3d at 977; Forest Serv. Emps., 524
F.3d at 1025-26. Either complainant could be such an official.
Even if a far-fetched possibility, that fact, if true, would be
quite pertinent to the weight accorded personal privacy inter-
ests in the Exemption 6 balancing test.
[9] Nothing on the face of the redacted communications, or
any explanatory evidence adduced by HUD, precludes these
possibilities. The 2003 Letter reveals no clues whatever as to
the complainant’s interest in the suspected violations, or as to
his relationship to Prudential or the real estate industry. The
author of the 2008 Email requested anonymity, suggesting he
feared some adverse consequences could ensue from reveal-
ing his identity. At the same time, he claimed to have heard
of the RESPA violations from an agent at Prudential, indicat-
ing, perhaps, that he was not employed there. That inference
could well be incorrect, but we would be required to make it,
as it is favorable to the nonmoving party on summary judg-
ment. See, e.g., Las Vegas Sands, LLC v. Nehme, 632 F.3d
526, 532 (9th Cir. 2011). The bottom line is that absent more
information, we are required to speculate about the likelihood
that a nontrivial interest is at stake with regard to either com-
plainant, something we are not permitted to do at this proce-
dural stage. See Fed. R. Civ. P. 56(c); Paladin Assocs., Inc.
v. Mont. Power, Co., 328 F.3d 1145, 1161 (9th Cir. 2003)
PRUDENTIAL LOCATIONS v. HUD 7613
(acknowledging summary judgment requires admissible fac-
tual support, not conjecture).
This “likelihood” problem—that is, whether there is a sub-
stantial probability of an invasion of privacy—does not often
arise in cases approving withholding identifying information
to protect privacy interests, because ordinarily evidence exists
that some privacy concern will be infringed. In many cases,
courts are aware of characteristics about the protected individ-
uals themselves—for instance, their status as potentially vul-
nerable emigrants, see Ray, 502 U.S. at 176; cadets who had
been subject to disciplinary proceedings, see Rose, 425 U.S.
at 355; or government employees associated with serious alle-
gations of misconduct. See Forest Serv. Emps., 524 F.3d at
1026; Lane, 523 F.3d at 1137; Hunt, 972 F.2d at 288. In other
cases, there is evidence that the protected individuals will be
harassed or contacted against their will. See, e.g., Fed. Labor
Relations Auth., 510 U.S. at 500-01; Lahr, 569 F.3d at 976;
Painting Indus., 26 F.3d at 1483; Minnis v. U.S. Dep’t of
Agric., 737 F.2d 784, 785-86 (9th Cir. 1984). Courts armed
with either type of information can make reasonably accurate
predictions about how disclosure would affect the protected
individuals, and, if privacy interests are determined to exist,
can weigh those concerns against the public interests fur-
thered by disclosure. Here, no analogous evidence exists.3
[10] In sum, HUD has yet to advance evidence sufficient
to establish that an invasion of privacy is more than a specula-
tive possibility. The district court, consequently, did not have
3
The district court found that Prudential demonstrated a desire to con-
tact and possibly sue the authors of the complaints. Prudential, 646 F.
Supp. 2d at 1227. Such a finding, if true, could be evidence that an inva-
sion of privacy would be likely to occur. Cf. Forest Serv. Emps., 524 F.3d
at 1026 (holding an invasion of privacy would occur, where the plaintiff
planned to contact the individuals whose names were being withheld).
HUD, however, does not defend that finding on appeal, and nothing in the
record supports it. Accordingly, it cannot constitute a sufficient factual
basis for the district court’s grant of summary judgment.
7614 PRUDENTIAL LOCATIONS v. HUD
an “adequate factual basis” to support its decision. Lane, 523
F.3d at 1135. Given the varying degrees of personal privacy
interests that could be at stake, HUD’s attempts to meet its
burden have not been “detailed enough for the district court
to make a de novo assessment of the government’s claim of
exemption.” Maricopa, 108 F.3d at 1092 (citation and quota-
tion marks omitted). In other words, absent some information
about who the informants are, or what privacy interests are
likely to be infringed, the government has not shown “some
nontrivial privacy interest” is at stake. Forest Serv. Emps.,
524 F.3d at 1027 (citation and quotation marks omitted). It
follows that, without more from HUD, it is impossible to
weigh the privacy and public interests implicated by releasing
the redacted information.4
[11] We therefore remand to allow the district court to
conduct such additional proceedings as it deems necessary.5
4
Prudential challenges the weight accorded by the district court to the
public and privacy interests in its balancing analysis. We express no opin-
ion on those arguments, other than to note that the government redacted
a limited amount of identifying information, and the court is to assess “the
marginal additional usefulness” of that withheld information. Forest Serv.
Emps., 524 F.3d at 1027 (citation and quotation marks omitted); Lahr, 569
F.3d at 978 (recognizing that this court has “viewed skeptically the asser-
tion that the public interest is materially advanced by disclosing names of
individuals redacted from documents already in the public record”). That
observation has particular force here: The factual bases underlying the
investigations are public, and Prudential’s limited request is unlikely to
reveal patterns regarding the efficacy or propriety of HUD’s practices.
See, e.g., Lane, 523 F.3d at 1138; Hunt, 972 F.2d at 289. In short, like the
district court, we are somewhat skeptical that revealing these names will
shed much, if any, light on HUD’s “performance of its statutory duties”
or otherwise let citizens know “what their government is up to.” See U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 773 (1989) (internal quotation marks omitted; emphasis deleted).
5
For the reasons given, were HUD to establish only that the complain-
ants are industry insiders, the agency must be prepared for the district
court to draw the reasonable inference that that category encompasses
managerial employees at a competitor organization with little or no per-
sonal privacy interests at stake.
PRUDENTIAL LOCATIONS v. HUD 7615
See Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 813 (9th
Cir. 1995); Wiener, 943 F.2d at 979.
III
Before concluding, we pause to acknowledge HUD’s worry
that releasing the names of persons who report suspected ille-
gal activity will have a chilling effect on the ability of agen-
cies to investigate legal violations. That concern is valid, but
HUD has other tools to protect future informants in the event
Exemption 6 proves inadequate.
Exemption 7(D), for example, specifically protects confi-
dential sources.6 “[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,
57 F.3d at 814 (quoting U.S. Dep’t of Justice v. Landano, 508
U.S. 165, 172 (1993)). Nothing in the record indicates that the
informants were assured their identities would remain confi-
dential, and HUD admits Exemption 7(D) does not apply. But
if HUD is worried about not discouraging future complain-
ants, it might consider implementing confidentiality proce-
dures that satisfy the Exemption 7(D) dictates.
Likewise, as previously mentioned, Exemption 7(C) allows
6
Exemption 7(D) protects from disclosure “records or information com-
piled for law enforcement purposes, but only to the extent” that disclosure
“could reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any pri-
vate institution which furnished information on a confidential basis, and,
in the case of a record or information compiled by criminal law enforce-
ment authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation, informa-
tion furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D) (empha-
sis added); see also Church of Scientology Int’l v. IRS, 995 F.2d 916, 919
(9th Cir. 1993) (acknowledging that “civil as well as criminal law enforce-
ment activities are within the purview of” Exemption 7 (citation omitted)).
7616 PRUDENTIAL LOCATIONS v. HUD
agencies to withhold “records or information compiled for
law enforcement purposes, but only to the extent that the pro-
duction of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). That
exemption requires less from the government to justify with-
holding information than Exemption 6, both in terms of the
likelihood that an invasion will result and in determining
whether such an invasion would be “unwarranted.” See supra
note 1 and accompanying text. It too might be invoked in the
future.
In light of the FOIA’s goal of “broad disclosure” and the
Supreme Court’s repeated “insist[ance] that the exemptions
be given a narrow compass,” Milner, 131 S. Ct. at 1265 (cita-
tion and quotation marks omitted), we must be cautious not
to interpret the exemptions so broadly that they “tend to
engulf” one another. Id. at 1270. Given the plausible applica-
bility of at least three different exemptions to situations like
this one, we are mindful of our duty to police their bounda-
ries.
We therefore vacate the grant of summary judgment to
HUD and remand to allow the parties to develop an adequate
factual basis for the district court to determine whether the
information at stake may be withheld pursuant to Exemption
6.
Each side shall bear its own costs on this appeal.
VACATED and REMANDED.