# Petition for Writ of Certiorari — Minnis v. United States Department of Agriculture > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3203%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1053 ## Text Office - Supreme Court. US. 84-663 FILED OCT 15 teg4 ALEXAN 3 ; No. DER lL. STEVag | CLERK ee ee er rr ere rrr or ae eee eee eee ee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1984 MARK G. MINNIS, PETITIONER V. THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Thomas E. Cooney Counsel of Record Jeffrey B. Wihtol Cooney, Crew & Wihtol 205 Riviera Plaza 1618 S.W. First Avenue Portland, OR 97201 (503) 221-1529 Of Attorneys for Petitiorer October 15, 1984 nen an QUESTION PRESENTED Whether the Government is collater- ally estopped, from litigating whether disclosure of the the names and addresses of 1983 recipients of Forest Service permits to float the Rogue River in the State of Oregon would constitute a clearly unwarranted invasion of personal privacy, by the 1981 judgment of The United States District Court for the District of Oregon whieh held, as one of two alternative and independent grounds for its judgment, that disclosure of the 1981 recipients was not "clearly unwarranted" under the Freedom of Information Act, 5 U.S.C. § 552(b)(6). PARTIES TO THE PROCEEDING Other parties, in addition to those named in the caption are R. Max Peterson, Chief of the United States Forest Service, R.E. Worthington, Regional Forester of ii Region 6, United States Forest Service, and William E. Butler, District Ranger, Galice Ranger District, United States Forest Service. iii TABLE OF CONTENTS Page QUESTION PRESENTED. ......~ i PARTIES TO THE PROCCEDINGS ... i Pim OMIM. wt CO UESUICTICON 2 wt STATUTE INVOLVED. ........~ 2 STATEMENT. «© «© «© © © 8s © © © 8 3 REASONS FOR GRANTING gg a a a ee | ole ht le | i a a Y | APPENDIX . . » + 0 © © © «© «© o 6 oApp 1 TABLE OF AUTHORITIES CASES PAGES Commissioner v. Sunnen, “So. O8 est «+ + sw Oy OS S3. i Department of the Air Force v. Rose, 425 U.S. DES / << «5 « 5 6 « « « « 10 Department of State v. Washington Post Co., 456 ue. io. ) Dozier v. Ford Motor Co., 702 F.2d 1189 (1983). . . . . . 17, 18 Halpern v. Schwartz, 426 F.2d 102 (2d Cir. 1970) . . 18, 14, 15 16, 17, 18 iv Huntley v. United States, 4 Ct. Cl. 65 (1983) Union Carbide Corp. v. C.1.R., 671 F.2d 67 (2nd Cir. 1982) Williams v. Ward, 556 F.2d 1143 (2nd Cir. 1977). Winters v. Levine, 574 F.2d 46 (2nd Cir. 1978). STATUTES Freedom of Information Act, 5 U.S.C. § 552(b)(6). 268 U.8.C. § 1984€2). .. . MISCELLANEOUS Restatement (Second) of Judgments. Tentative Draft No. 4 of the Restatement (Second) of Judgments . J. Lueas, The Direct and Collateral Estoppel Effects of Alternative Holdings, 50 U. Chi. L. REV. 701 (1983). 18 19, 22 16 16, 15 19 17 15 19 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1984 MARK G. MINNIS, PETITIONER V. UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Mark G. Minnis petitions for a Writ of Certiorari to review the judgment of The United States Court of Appeals for the Ninth Cireuit in this case. =2@ OPINIONS BELOW The opinion of the court of appeals (App. ___, infra) is reported at 737 F.2d 784. The 1983 Order of the District Court in this lawsuit (App. ___, infra) is not reported. The 1981 Order of the District Court in the prior lawsuit (App. infra) is not reported. JURISDICTION The judgment of the court of appeals was entered May 22, 1984 (App. , infra) and a petition for rehearing and sug- gestion for rehearing en banc was denied on July 18, 1984 (App. , infra). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTE INVOLVED Subsection (b)(6) of the Freedom of Information Act, 5 U.S.C. § 552(b)(6), provides: =3< (b) This section does not apply to matters that are-- * * * * * (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; * * * STATEMENT This Freedom of Information Act ("FOIA") suit arose out of a request by petitioner Mark G. Minnis for the names and addresses of the applicants for permits to float the Rogue River during 1983. The Forest Service denied the FOIA request on the basis of Exemption 6 of the Act, which protects from disclosure "personnel and medical files and similar files the disclo- sure of which would constitute a clearly unwarranted invasion of personal privacy." 59 U.S.C. § 552(b)(6). The petitioner filed a motion for summary judgment contending, in part, that the Government was collaterally estopped ago from relitigating its duty to disclose the names and addresses of the permit recipi- ents. This issue was decided in 1981 by the United States District Court in the District of Oregon. In 1980 Minnis made an FOIA re- quest for the names and addresses of the 1980 permit recipients. Each year the Forest Service conducts a “secret lottery" to award prized permits to lucky appli- cants. Without a permit it is unlawful to float the Rogue River from Memorial Day through Labor Day. The Forest Service denied his 1980 request on the same ground, Exemption 6. The parties fully briefed and argued both prongs of Exemption 6: 1) whether the names and addresses of the 1980 permit recipients were "similar" to medical or personnel files, and 2) would disclosure constitute a clearly unwarranted invasion of the personal privacy of the permit recipients?” The district court granted Minnis' motion for summary judgment, holding in favor of Minnis on both prongs, and entered judgment in 1981 requiring the Government to disclose the names_ and addresses of the 1980 permittees. The Government appealed from the 1981 judgment but unilaterally dismissed its appeal before the Ninth Circuit could rule on the merits. The Forest Service disclosed the names and addresses of the permit recipi- ents for 1981 and 1982. Because of this Court's decision in Department of State vy. Washington Post Co., 456 U.S. 595 (1982), Petitioner no longer contended in 1983 that the names. and addresses were not "similar files." “he 1983 lawsuit revolved around the issues of collateral estoppel and whether disclosure would constiute a clearly unwarranted inva- Sion of personal privacy. The Government argued in the dis- trict court that the doctrine of collateral ~£- estoppel did not apply because the 1981 judgment applied only to recipients of per- mits and not to applicants as pliaintiff requested in 1983. The district court held that the facts and issues presented in 1983 were not the same as in 1980 since the 1980 request concerned permit recipients while the 1983 request concerned permit appli- cants. While the district court held col- lateral estoppel was not applicable, it held that disclosure of the names and addresses would not constitute a clearly unwarranted invasion of personal privacy and ordered disclosure of the names and addresses of the 1983 applicants. The Government appealed the 1983 judgment. Petitioner again asserted collateral estoppel as support for that portion of the district court's judgment holding disclosure of the names_~ and addresses of the 1983 permittees would not constitute a clearly unwarranted invasion = oo of personal privacy. The Ninth Circuit reversed the district court, finding that disclosure of the names and addresses of the 1983 applicants would constitute a clearly unwarranted invasion of personal privacy. The Ninth Circuit rejected application of eollateral estoppel based upon its miscon- ception of the district court's ruling. The Ninth Circuit mistakenly believed that the district court had never addressed whether disclosure of ‘he 1980 permittees would constitute a ciearly unwarranted invasion of personal privacy. Petititoner filed a Petition for Rehearing and Suggestion for Rehearing En Bane which was rejected on July 18, 1984. The order rejecting the Petition for Rehearing amended the May 22, 1984 opinion of the Ninth Circuit by deleting the state- ment that the district court had not consid- ered whether disclosure of the 1980 permit- tees would constitute a clearly unwarranted alin invasion of personal privacy. However, rather than reconsidering its rejection of collateral estoppel, the Ninth Circuit added the following: Minnis also suggests that the Forest Service is collaterally estopped from relitigating the ‘clearly unwarranted' issue. The district court in the earlier action did note its view that dis- closure of the list of all permit recipients would not be clearly unwarranted. However, the district court also recognized that it was unnecessary for it to address that issue. Because the district court's expression of its view regarding the issue was dictum, the Forest Service is not collaterally estopped from relitigating the ‘clearly unwarranted' question. Moreover, the earlier question per- tained to permit recipients while the issue before us relates to per- mit applicants. For that reason also, collateral estoppel is inapp- licable. The Ninth Circuit did not ask for, and the parties did not brief the issue of whether collateral estoppel will apply to a judgment resting upon alternative grounds, either of which would be sufficient to inde- pendently support the judgment. =Sa The parties agree that only permit applicants may receive permits. Peti- tioner's 1983 FOIA request was not phrased as an "all the applicants or nothing" request. Petitioner requested: the mames and addresses of the private permit trip applicants for the 1983 regulated Rogue River season. .. The information is not exempted from required disclosure under present interpretations of the Act, as you are aware from the decision in the matter of Mark G. Minnis v. United States Department of Agriculture, R. Max Peterson and R.E. Worthington, Civil No. 80- 1138, U.S. District Court for the District of Oregon. . . If any portion of this request is deemed denied, I request a detailed statement for the reasons for the withholding. If you withhold any portion of the requested information, you are requested to disclose and provide the balance of .the requested information. The Act also expressly contemplates segre- gation and disclosure of nonexempt portions of a request: “i f- Any reasonably segregable por- tion of a record shall be provided to amy person’ requesting such record after deletion of the portions which are exempt under this subsection. 5 U.S.C. § 552(b). See also, Department of the Air Force v. Rose, 425 U.S. 325 (1976). The Ninth Circuit cited no author- ity for its narrow interpretation of Peti- tioner's request to be for 1983 permit applicants only, to the exclusion of 1983 permit recipients. The Government cited no authority in support of this unique "all or nothing" approach adopted by the Ninth Circuit. The Government has never contended that the district court's holding that dis- closure of the 1980 permittees would not constitute a clearly unwarranted invasion of privacy, was unnecessary to the 1981 judgment. The Government has not contended that following the 1981 judgment there was 4 change in the applicable law with respect to the determination of whether a clearly «tle unwarranted invasion of personal privacy would result from disclosure. The Govern- ment has not contended that new evidence exists, which was unavailable to’. the Government at the time of the 1980 lawsuit, and which would have been determinative of the outcome of the 1980 lawsuit if the district court had been presented with the evidence, REASONS FOR GRANTING THE PETITION This case presents an_ important question concerning the application of collateral estoppel to judgments resting on alternative grounds, each of which is inde- pendently sufficient to sustain the judg- ment. In its holding in this ease, the Ninth Circuit, without the benefit of briefing by the parties, ruled in harmony with a minority view that collateral estop- pel does not apply to judgments based on independent and alternative grounds, even «} 2 if all grounds for the judgment are actually litigated. Relatively recently a conflict amongst the circuits and within the Second Circuit has developed as to the application of collateral estoppel to such a situation. The issue hinges on whether each of the alternative bases for a judgment is actu- ally necessary to the judgment if an inde- pendent basis for the judgment also exists. The implications of the application of collateral estoppel to such judgments affects the certainty, and finality, and redundency of litigation, and the burden on trial and appellate courts. Alternative grounds for judgments are not unusual. Trial courts often reach decisions on issues which would uphold the basis for the judgment even if another aspect of the court's findings were over- turned on appeal. The district court did so here in 1981. This promotes judicial econ- omy by obviating retrial even if the trial =] 3= eourt is in error on one ground for the judgment. It is impractical, uneconomical, and unfair that a litigant who prevails on but one theory and obtains a judgment on that theory can assert collateral estoppel to preclude relitigation of the decided issue by the same parties at a later time, while the litigant who asserts two inde- pendent theories, each of which are adopted and each of which would support a judgment, cannot assert collateral estoppel as _ to either issue. The wisdom of such a rule of law, while adopted by the Restatement (Second) of Judgments, has been heavily criticized. The implications of this rule of law are widespread, and deserve resolution by this Court. Until the decision in Halpern v. Schwartz, 426 F.2d 102 (2d Cir. 1970), it had been the well-settled rule that =Léo collateral estoppel did apply to judgments resting on independently sufficient deter- minations. In Halpern the Second Circuit reconsidered this long-settled rule and carved out an exception to the rule in bankruptey cases based upon facts similar to those in Halpern. While the facts in Halpern are not at all analogous to those of the instant case, the reasoning of the Second Circuit is important. The Court advanced two reasons for not’ applying collateral estoppel under the circumstances of the Halpern case: (1) If the court were sure as to one of the alternative grounds and this ground were alone sufficient to support the judgment, other grounds for the judgment may not receive as_ rigorous consideration, (2) vigorous review of an asserted error as to one ground for the judgment would be less likely to occur since even if there were error as to one basis for the judgment, the judgment would be =} 5- affirmed as to the other grounds and the motivation for appeal would be diminished. The instant case demonstrates the folly of such a general rule. Here, the district court carefully considered both grounds for its 1981 judgment after vigor- ous briefing and argument by both sides on both grounds. And here, a timely appeal of the 1981 judgment may have obviated the need for this second lawsuit and its consequent burden on the parties' and the judiciary's resources. In 1977, when Tentative Draft No. 4 of the Restatement (Second) of Judgments was published, the Halpern decision was the most recent judicial examination of the effect of judgments resting on indepem- ently sufficient grounds. Comment (e) to Section 20 of the Restatement (Second) applies the Halpern reasoning and abandons the former rule that collateral estoppel applied to all of the independent grounds -16= for a judgment. The Halpern ruling has been limited and criticized by numerous courts, including the Second Circuit itself. The Second Circuit in Williams v. Ward, 556 F.2d 1143 (2nd Cir. 1977) noted that the Halpern court limited its decision to "the facts before us" 426 F.2d 105. The Williams court distinguished the Halpern decision on the basis that in Halpern one of the bases for the judgment was on an issue not essential and which may not have been afforded careful deliberation, whereas in the Williams case both bases for the judg- ment were litigated at the same time and had apparently been afforded the careful delib- eration and analysis normally associated with a judgment. The Williams court did not vary from the traditional rule that res judicata applied to all of the bases for the judgment. A year later, in Winters v. Levine, 574 F.2d 46, (2nd Cir. 1978), the Second aiFe Circuit Stated that Halpern was not intended to have "broad impact outside the specific context, bankruptcy proceedings, in which the issue was presented there. . ." Winters at 574 F.2d 67. The Winters court abided by the traditional rule that collat- eral estoppel will apply to alternative grounds for a judgment and refused to apply the rule applied in Halpern and by the Ninth Circuit in this case. The Winters court confined the Halpern rule to "narrow circumstances" and stated the traditional rule "has continuing viability in ecireum- stances divergent from those in Halpern." Winters at 67. Significantly, Judge Waterman was a member of both the Halpern and the Winters panels. The District of Columbia Circuit recognized the split of authority over the res judicata and collateral estoppel effect of alternative and independent bases for a judgment in Dozier v. Ford Motor Co., 702 aie F.2d 1189 (1983). It eharacterized the problem as follows: A rule declining to accord res judicata effect to an alternate ground must of course apply to both grounds, which would mean that a case which is doubly inadequate can be refiled whereas a case inade- quate in only one respect cannot. On the other hand, a rule which give res judicata effect to both grounds leaves the losing party who con- cedes the adequacy of one no appel- late remedy for the patent invalid- ity of the other except a frivolous appeal. 702 F.2d at 1194. The facts in Dozier, however, did not require a resolution of the problem by the Distriet of Columbia Circuit. In Huntley v. United States, 4 Ct. Cl. 65 (1983), the split of authority was again recognized. The Court of Claims noted the limitation of Halpern by the Second Circuit, and the disapproval it has received, and itself declined to follow the Halpern rule. Legal scholars have also condemned the rule pronounced in Halpern, and adopted -19- by the Restatement (Second), as_ ineffi- cient, often unfair, and promoting uncert- ainty in litigation where finality is essential. J. Lueas, The Direct’ and Collateral Estoppel Effects of Alternative Holdings, 50 U. Chi. L. REV. 701 (1983). The fact that 1980 mnaemes_ and addresses may not be the same as those in 1983 is not a bar to the application of collateral estoppel since the same legal and factual issues are present. Commissioner v. Sunnen, 333 U.S. 591 (1947); Union Carbide Corp. v. C.I.R., 671 F.2d 67 (2nd Cir. 1982). In Sunnen, this Court considered the application of collateral estoppel to relitigation of the same income tax issues in succeeding tax years. This Court held that even though a new tax year was involved, and new income was_ involved, collateral estoppel may still be appli- cable, even though res judicata was not: »20« These same concepts are appli- eable in the federal income tax field. Income taxes are levied on an annual basis. Each year is the origin of a new liability and of a separate cause of action. Thus, if a claim of liability or_ non- liability relating to a particular tax year is litigated, a judgment on the merits is res judicata, as to any subsequent proceeding involving the same claim and the same tax year. But if the later proceeding is e@oneerned with a_ similar or unlike claim relating to a diff- erent tax year, the prior judgment acts as a collateral estoppel only as to those matters in the second proceeding which were actually presented and determined in_ the first suit. Collateral estoppel operates in other words to relieve the Government and the taxpayer of "redundant litigation of the ident- ical question of the statute's application to the taxpayer's status. (Citations omitted) 333 U.S. at 598-599. Thus, the mere fact that a different tax year was involved and different dollars were received by the taxpayer as income, collateral estoppel applied if the control- ling facets and applicable laws remained unchanged: so And so where two cases involve income taxes in different taxable years, collateral estoppel must be used with its limitations carefully in mind so as to avoid injustice. It must be confined io situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged. Id., at 599-600 In Union Carbide, supra, the IRS contested the taxpayer's consolidated foreign tax credit for the 1971 tax year. The same issue had been litigated between the two parties regarding the taxpayer's 1967 tax liability. The Court held collat- eral estoppel prevented relitigation of the issue: We decline to reverse and we affirm the application <* ecollat- eral estoppel to the facts of this case on the reasoning of Judge Tannenwald's opinion. We agree with the Tax Court that recent decisions, particularly Montana v. United States, 440 US 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), indi- cate that it is appropriate to invoke collateral estoppel here to bar the Commissioner from reliti- gating with the same taxpayer the ~ > precise issue on which the Commissioner has already lost for a prior year. Union Carbide, supra, at 68 The same reasoning and result applies to the instant case. The nature of the requested information remains unchanged from the 1980 litigation. The fact that the names and addresses may have changed is irrelevant to the application of collateral estoppel, just as the fact that the tax- payers received new income in different tax years was irrelevant in Sunnen and Union Carbide. Insofar as the names and addresses of the successful permit applicants is concerned, there have been no factual changes and no changes in the applicable law which would affect the outcome of the case. Defendants were obligated to segregate and disclose the names and addresses of the 1983 permittees. 5 U.S.C. § 552(b). The Ninth Circuit's ruling that collateral estoppel cannot apply to any of =23- two or more independent grounds for a judgment was made without briefing by the parties and without significant discussion of the issue. The ruling will add weight to the Restatement (Second) position. The effect of a widening application of such a rule will be to create a dramatic change in the heretofore settled law of collateral estoppel and res judicata, resulting in uncertainty in litigation due to a lack of finality, an excessive burden upon. the courts from repetitious litigation, and outright unfairness. It will promote situ- ations, such as the instant case, where an unsuccessful litigant will be given unlimited bites at the apple. It will promote justice for the rich at the expense of financially less able who are unable to repeatedly litigate an issue over and over again. o2£0 CONCLUS ION The judgment of the Ninth Circuit should be reversed and the case remanded for entry of judgment in favor of the Petitioner diieeting disclosure of the mnames_= and addresses of the 1983 permittees. Dated: October 15, 1984 Respectfully submitted, Thomas E. Cooney Counsel of Record Jeffrey B. Wihtol Of Attorneys for Petitioner App. l Appendix Order Denying Petition For Rehearing and Rejecting the Suggestion For Rehearing En Banc, Filed July 18, 1984 Opinion of The Ninth Circuit Court of Appeals, Filed May 22, 1984 — Opinion and Order of the United States District Court, June 6, 1983 Judgment Order of the United States District Court For The District of Oregon, Filed August 15, 1983 Judgment Order of The United States District Court For The District of Oregon. App. . App. . App. . App. App. 16 30 34 App. 2 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARK G. MINNIS, No. 83-4089/4209 Plaintiff-Appellee- Cross-Appellant, DC # 83-469-FR (District of Vv. Oregon) ORDER UNITED STATES DEPART - MENT OF AGRICULTURE, et al. Defendants- Appellants-Cross Appellees. ee ee ee Before: SCHROEDER, FARRIS, and REINHARDT, Circuit Judges. The panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b). App. 3 The petition for rehearing is denied and the suggestion for rehearing en bane is rejected. The opinion filed on May 22, 1984 shall be amended by deleting the third sentence from footnote 1: "The dis- trict court never addressed whether disclo- Sure would be ‘clearly unwarranted.'" and adding to the end of footnote 1 the follow- ing paragraph: Minnis also suggests that the Forest Service is collaterally estopped from relitigating the "clearly unwarranted" issue. The district court in the earlier action did note its view that dis- closure of the list of all permit recipients would not be clearly unwarranted. However, the district court also recognized that it was unnecessary for it to address that issue. Because the district court's expression of its view re- garding the issue was dictum, the Forest Service is not collaterally estopped from relitigating the "clearly unwarranted" question. Moreover, the earlier question per- tained to permit recipients while the issue before us relates to per- mit applicants. For that reason also, collateral estoppel is inap- plicable. App. 4 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARK G. MINNIS, No. 83-4089-4209 Plaintiff-Appellee, DC # 83-469-FR v. OP INION UNITED STATES DEPART- MENT OF AGRICULTURE, et al. Defendants- Appellants. Appeal from the United States District Court for the District of Oregon Helen J. Frye, District Judge, Presiding Argued and submitted March 5, 1984 Before: SCHROEDER, FARRIS, and REINHARDT, Circuit Judges. SCHROEDER, Circuit Judge. Mark G. Minnis owns a conmercial lodge on the bank of the Rogue River in Oregon. He filed this action under the Freedom of Information Act, 5 U.S.C. § 552 (1982)(FOIA), to ~wompel the Forest Service to disclose the names and addresses of all persons who applied for permits to travel on —_ Avp. 5 the Rogue River during the 1983 regulated season. The Rogue River is a designated wild and scenic river under the Wild and Seenic Rivers Act of 1968, 16 U.S.C. §§ 1271-1287 (1982), and the Forest Service restricts traffic on it between Memorial Day and Labor Day by requiring all] persons to obtain permits through a random computer lottery. Approximately 9,370 people applied for permits for the 1983 regulated season, and 639 permits were awarded. The Forest Service denied Minnis's request for the permit applicant list on the basis that disclosure would violate the privacy exemption to FOIA, 5 U.S.C. § 552(b)(6). Minnis then filed this action. The district court concluded, on the basis of facts that were not materially disputed, that there was a strong public interest in Minnis informing permit applicants about available accommodations on the River, and that release of the list App. 6 to Minnis would entail no more than a minimal invasion of privacy. It ordered disclosure plus an award of attorney fees pursuant to 5 U.S.C. § 552(a)(4)(E). We stayed action pending this appeal and now reverse because we conclude that disclosure would confer no discernible public benefit and would entail more than a_e minimal invasion of privacy. FOIA's privacy exemption applies to "personnel and medical files and similar files the disclosure of which would consti- tute a clearly unwarranted invasion of per- sonal privacy." 5 U.S.C. § 552(b)(6). To fall within the exemption, the information requested must be contained in a personnel, medical, or similar file. The Supreme Court has defined “similar file" broadly as government records containing “information which applies to a particular individual." United States Department of State v. Washington Post Co., 456 U.S. 595, 602 App. 7 (1982.1/ See Washington Post Co. v. United States Department of Health and Human Services, 690 F.2d 252, 260 (D.C. Cir. 1982). Lists of names and addresses meet this definition. Van Bourg, Allen, Weinberg & Roger v. NLRB, No. 83-1722, slip op. at 1490 (9th Cir. March 22, 1984); see also Wine Hobby USA, Inc. v. United States Internal Revenue Service, 502 F.2d 133, 135 (3d Cir. 1974). The issue here, therefore, is whether release of the _ information requested would be a clearly unwarranted invasion of personal privacy. United States Department of State v. Washington Post Co., 456 U.S. at 602. To determine whether an invasion of privacy is clearly unwarranted, this court balances four factors: (1) the plaintiff's interest in disclosure; (2) the publie interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of any alternate means of App. 8 obtaining the requested information. Van Bourg, Allen, Weinberg & Roger v. NLRB, slip op. at 1490; Church of Scientology of California v. United States Department of the Army, 611 F.2d 738, 746 (9th Cir. 1979). Even though we construe exemptions from FOIA disclosure narrowly, Department of the Air Force v. Rose, 425 U.S. 352, 361-62 (1976), the balance here weighs against release of the information. Minnis's’_ principal interest in obtaining the permit applicant list is purely commercial in character. He wants to advertise his lodge to people who are inter- ested in visiting the Rogue River. At least one other circuit has considered such a commercial interest in the context of the privacy exemption. Wine Hobby USA, Ine. v. United States Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974). In Wine Hobby, a distributor of wine-making equipment requested the names and addresses. of App. 9 persons registered with the United States Bureau of Alcohol, Tobacco and Firearms to produce wine for family use. The court denied the request, reasoning that Congress did not intend FOIA to allow the disclosure of names of potential customers to commer- cial businesses. Id. at 137. The court concluded that, absent any asserted public interest in disclosure, a commercial interest would not justify the invasion of privacy. Id. See also HMG Marketing Associates v. Freeman, 523 F. Supp. 11, 14 (S.D.N.Y. 1980) (list of people who ordered specially minted silver sollars exempt from disclosure to direct mail advertiser because court "hard pressed" to discern any public interest in advertiser's acquisition of the mailing list). We agree with the Third Circuit that commercial interest should not weigh in favor of mandating disclosure of a name and address list. Congress designated FOIA App. 10 "to ensure an informed citizenry . . needed to check against corruption and to hold the governors accountable to the governed," NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978), and "to open agency action to the light of publie seru- tiny." Department of the Air Force vy. Rose, 425 U.S. at 361. FOIA was not intended to require release of otherwise private information to one who intends to use it solely for personal gain. Minnis attempts to distinguish Wine Hobby by arguing that disclosure of the list would benefit the public in two ways: first, because it would inform interested people of available accommodations on the River; and second, because the list would allow Minnis to verify the fairness of the permit lottery system. In assuming that the publie would benefit from the receipt of his direct mail advertising, Minnis ignores the possibility App. ll that some members would be irritated rather than enlightened by unwanted solicitations. See Rowan v. United States Post Office Department, 397 U.S. 728, 736 (1970). More- over, Minnis can communicate his lodge's availability to those who are interested by advertising in specialty publications, con- tacting local Chambers of Commerce, or obtaining a listing in the telephone yellow pages. Thus, he has not shown that govern- ment disclosure of this list is needed to inform the interested public. Use of the list for advertising purposes confers no public benefit weighing in favor of disclo- sure. Minnis is on stronger ground in arguing that there is a public benefit in allowing outside scrutiny of the permit lottery's fairness. See Department of the Air Force v. Rose, 425 U.S. at 360-62; EPA v. Mink, 410 U.S. 73 (1973). The difficulty is, however, that the information Minnis App. 12 seeks would not further such an objective. The Forest Service submitted an uncontrad- ieted affidavit that disclosure of names and addresses alone would not enable Minnis to assess the fairness of the lottery; he also wuld need other informaticn, including the size of the parties, the types of craft, and the dates requested; Minnis has not asked the Forest Service for this informa- tion. The district court itself observed that Minnis had not explained how disclos- ure would help him oversee the lottery's fairness. Thus, we must conclude that there is little or no publie interest served by disclosure of the information sought. Against the asserted private and public interest in disclosure, which is negligible, we must balance the degree of invasion of ther permit applicants' privacy interests. Disclosure would reveal not only the applicants' names and addresses, but also their personal interests in water =< App. 13 sports and the out-of-doors. See Wine Hobby, 502 F.2d at 137. Other commercial advertisers could obtain the list, subj- ecting the applicants to an_ unwanted barrage of mailings and personal solicita- tions. Id. See American Federation of Government Employees Local 1923 v. United States Department of Health and Human Services, 712 F.2d at 931, 932 (4th Cir. 1983). Thus, contrary to the district court's conclusion, disclosure would impli- cate more than a minimal privacy interest. Indeed, this court recently recognized the privacy interest in a name and address list in Van Bourg, Allen, Weinberg & Roger vy. NLRB, supra, involving a rival union's request for the list of eligible voters in a representation election. Slip op. at 1488. In allowing disclosure, this court emphas- ized that the parties to the election already had a copy of the list, slip op. at 1491, and that the public would benefit from App. 14 ensuring the fairness of union elections. Id. The factors militating in favor of dis- elosure in that case do not exist here. While we note that Minnis had no alternative means for obtaining the exact list he requests, Chureh of Scientology of California, 611 F.2d at 746, this factor alone is not determinative, particularly since alternative means exist to further the commercial interest for which the information is sought. Minnis's interest in obtaining the list is commercial; no dis- ecernible public benefit would result from disclosure; and more than a minimal privacy interest is involved. We conclude that the invasion of privacy here is "clearly unwar- ranted." 5 U.S.C. § 552(b)(6). Accordi- ngly, we reverse the judgment of the district court and the award of attorney fees to plaintiff. OM an na the 0 NE AM aot A 8 App. 15 FOOTNOTE 1/ Minnis filed an action for the list of all permit recipients prior to United States Department of State v. Washington Post Co., 456 U.S. 595 (1982). The district court in the earlier action ordered disclosure on the basis that names and addresses were not a "similar file." The district court never addressed whether dis- closure would be "clearly unwarranted." Minnis's argument that the Forest Service is collaterally estopped from relitigating the "similar file" issue, however, lacks merit. It has long been the rule in this circuit that an intervening Supreme Court decision clarifying an issue that had been uncertain in the lower courts’ defeats collateral estoppel. See Segal v. American Telephone & Telegraph Co., 606 F.2d 842, 845-46 (9th Cir. 1979). App. 16 UNITED STATEDS DISTRICT COURT DISTRICT OF OREGON MARK G. MINNIES, Plaintiff, ) ) ) ) v. UNITED STATES DEPARTMENT OF ) AGRICULTURE, R. MAX PETERSON) individually and as Chief, ) United States Forest ) Service; R. E. WORTHINGTON, ) individually and as Regional) Forester, Region 6, United ) States Forest Service; and ) WILLIAM E. BUTLER, individu-) ally and as District Ranger, ) Galice Ranger District, ) United States Forest Service) ) Defendants. ) Jeffrey B. Wihtol Cooney & Crew Civil No. 83-469-FR . OPINION AND ORDER 1618 SW First Avenue, Suite 205 Portland, OR 97201 Attorneys for Plaintiff Charles H. Turner, U.S. Attorney Judith D. Kobbervig, Asst. U.S.Attorney 312 United States Courthouse Portland, OR 97205 Attorneys for Defendants FRYE, Judge: Sk brandi sl ee Sin ced Oran ows ache 2 App. 17 This matter is before the court on eross motions for summary judgment. Plain- tiff seeks disclosure under the Freedom of Inforamtion Act, 5 U.S.C. § 552, of the names and addresses of private permit trip applicants for the 1983 regulated Rogue River season, Defendants have previously disclosed to plaintiff the names~ and addresses of private permit trip recipients for the years 1981 and 1982, pursuant to this court's order of April 16, 1981 in a previous case, Minnis v. U.S. Dept. f Agriculture, et al., Civil No. 80-1138. Plaintiff's request for information this year was denied by defendants pursuant to Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6), which protects against disclosure of infor- mation which would constitute a clearly unwarranted invasion of personal privacy. Plaintiff contends that defendants’ are barred by collateral estoppel from reliti- gating this issue which was decided in the App. 18 previous lawsuit and that the court's order of April 16, 1981 compels defendants to dis- close the requested information. Defend- ants contend that the undisputed facts of this case differ from the facts of the prev- ious case and that under the new facts and recent case law, judgment should be granted in their favor. SUBJECT MATTER JURISDICTION Defendants argue that because plaintiff did not appeal the Forest Service's denial of this request, he failed to exhaust his administrative remedies and this court therefore lacks subject matter jurisdiction. 5 U.S.C. § 552(a)(6)(A)(i) requires agencies to determine whether to comply with a request within ten days of its receipt and to notify the person making the request immediately. 5 U.S.C. § 552(a) (6)(C) provides that a person making a request shall be deemed to have exhausted his administrative remedies with respect to ar Sey Wate App. 19 that request if the agency fails to comply within the applicable time limits. Plaintiff's original request for information was dated February 28, 1983. On March 7, 1983, the District Ranger wrote to plaintiff, asking him the intended use of the requested information. Plaintiff's response is dated March 14, 1983. By letter dated March 29, 1983, and mailed March 31, 1983, plaintiff's request was’ denied. Defendants failed to make a determination on plaintiff's request within the ten days allowed by the statute. Hence, plaintiff is deemed to have exhausted his administrative remedies, and this court has subject matter jurisdiction. COLLATERAL ESTOPPEL Plaintiff contends that collateral estoppel entitles plaintiff to judgment as a matter of law, since the issues and facts decided in the previous case are the same as those presented here; the parties are the App. 20 same, with the addition of William E. Butler; and the issues were actually liti- gated and decided. See, Lewis v. International Business Machines Corp., 393 F.Supp. 305, 307 (D.Ore. 1974). In the previous case, plaintiff's request for names and addresses of private trip permittees on the Rogue River was denied by the Forest Service pursuant to Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6). This court examined the nature of the infor- mation requested, the private and public interests served by its disclosure, and alternative means to the same end. It determined that the requested information did not come from personnel, medical or "similar" files, and that its disclosure would not constitute a clearly unwarranted invasion of personal privacy; therefore, it was not protected from disclosure by 5 U.S.C. § 552(b)(6). App. 21 The information plaintiff seeks in the instant case is not the same information he sought before. Whereas before he sought the names and addresses of permittees only, plaintiff now seeks disclosure of the names and addresses of all applicants for permits to float the Rogue River during the regu- lated period from Memorial Day through Labor Day. Of the 9,372 applicants for permits for the 1983 season, oniy 639 received permits. Plaintiff's stated purpose in requesting this information is to verify the fairness of the lottery. Defendants have presented evidence to show that disclosure of this information would not serve that purpose and that alternative means are available. Sinee the facts and issues pre- sented here are not the same ones decided previously by this court, collateral estoppel does not compel a judgment in favor of plaintiff. The issues will be re- App. 22 examined here in light of the new facts presented, and with reference to. this court's previous ruling. THE PRIVACY EXEMPTION The personal privacy exemption of the FOIA applies to a request for informa- tion if (1) the information comes from per- sonnel, medical, or similar files; (2) the disclosure of the information would consti- tute an invasion of personal privacy; and (3) the severity of the invasion would out- weigh the publie interest in disclosure. Sims v. Central Intelligence Agency, 642 F.2d 562, 573 (D.C.Cir. 1980). Four factors must be balanced in weighing claims of exemption for clearly unwarranted invasions of privacy: (1) the plaintiff's interest in disclosure; (2) the public interest in disclosure; (3) the degree of invasion of personal privacy; and (4) the availability of any alternative means of obtaining the requested information. App. 23 Church of Scientology v. U.S. Dept. of the Army, 611 F.2d 738, 746 (9th Cir. 1979). In its order in the previous case, this court decided that: the names and addresses of the private trip leader permittees for the regulated 1980 Rogue River season are not "similar" to person- nel or medical files, that disclo- sure of the permittees' names and addresses would constitute a minimal invasion of personal privacy, that plaintiff has a private commercial interest and the public has an interest in disclo- sure which outweighs the minimal invasion, that no alternative means for obtaining the information is available to plaintiff, .. . and that the requested information is not exempt from disclosure under 5 U.8.C. [$ 552(b)(6)], ... and that plaintiff's primary interest in requesting the names and addresses is commercial, .. . Since this court's decision the United States Supreme Court decided the case of Dept. of State v. Washington Post Co., U.S. ., 102 &.Ct. 1957 (1982), in which it held: [We] do not think that Congress meant to limit Exemption 6 to a narrow class of files containing App. 24 only a discrete kind of personal information. Rather, "([t]he exemption [was] intended to cover detailed Government records on an individual which can be identified as applying to that individual." H.R.Rep. No. 1497, supra, at ll, U.S. Code Cong. & Admin. News 1966, p. 2438. When disclosure of information which applies to a particular individual is sought from government records, courts must determine whether release of the information would constitute a clearly unwarranted invasion of that person's privacy. 102 S.Ct. at 1961. (Footnotes omitted.) The District of Columbia Circuit has _ inter- preted this to mean that "[a]1l information which ‘applies to a particular individual’ is covered by Exemption 6, regardless of the type of file in which it is contained." Washington Post Co. v. U.S. Dept. of Health and Human Services, 690 F.2d 252, 260 (D.C.Cir. 1982). Both parties to this dispute agree that under. the Supreme Court's ruling the information sought in this case is covered by Exemption 6 in that it eomes from medical, personnel, or "similar" files. This court must still Piet’ he PE Vey App. 25 determine if disclosure would constitute an unwarranted invasion of personal privacy. In order to detemine if disclosure of the names and addresses of the applicants would constitute an unwarranted invasion of the applicants’ personal privacy, the court must balance the public and _ private interest in the release of the information against the invasion of privacy, and consider alternative means to the - same information. Plaintiff's private interest is a commercial interest in soliciting business for his lodge near the River. Plaintiff intends to serve the _ public interest by providing information about public accommodations within the wilderness area and by opening up the "secret" lottery conducted by the Forest Service and verify- ing its fairness. Defendants have submitted the affidavit of Kenneth M. Vines, Visitor Information Specialist at the Galice Ranger District, who is App. 26 responsible for administering the lottery. Vines states that the names and addresses of applicants can in no way explain or verify the fairness and accuracy of the lottery. Vines states that as part of his job he educates the public, either in person or through the media as to how the lottery system works and how to _ use it. The government has submitted a document explaining the lottery system and how the computer randomly selects from among the applicants. Furthermore, in the letter of March 29, 1983, denying plaintiff's request, the Regional Forester’ invited plaintiff to meet with the District Ranger and discuss the lottery. Plaintiff does not explain how he intends to use this information to verify the fairness of the system. He argues that the list of names and addresses is necessary to verify that each applicant is actually put into the lottery system. There is a App. 27 public interest in assuring that each step in the lottery procedure is carried out fairly and carefully. It is possible that this interest can be served and the fairness ascertained without disclosing the names and addresses of all applicants, but certainly no harm is done in allowing citizen participation in making sure the procedure is fair. This court previously held that the public had an interest in being informed about accommodations available along the River. This was in reference to plaintiff's request for the names and addresses of permittees, who would actually be travelling along the River. The information he now seeks includes the names of approximately 8700 people who did not receive permits for the summer. season. However, these people are still free to float the River during the non-regulated part of the year, and the fact that they App. 28 applied for permits indicates that they are interested in the Rogue River and its recreational opportunities. The public interest in providing information about Rogue River accommodations to this class of people is still a compelling interest. The government points out that 57 percent of all applicants indicated on their applications that they preferred not to have their names and addresses disclosed for commercial or political purposes. The results of this poll are irreievant for the purposes of this ruling. Diselosure is favored under FOIA, and the exemptions are to be narrowly construed. Dept. of Air Force v. Rose, 425 U.S. 352, 361 96 S.Ct. 1592 (1976). The court finds the invasion of the personal privacy of the applicants to be minimal. Furthermore, the court finds that’ the public interest in disclosure outweighs the minimal invasion of privacy and_ that Po hy App. 29 there is no alternative means by which plaintiff can provide this information to this group of persons. IT Is HEREBY ORDERED that plaintiff's motion for summary judgment is GRANTED. Defendants' motion for summary judgment is DENIED. Defendants are ordered to iteetess the requested information to plaintiff. DATED this 3 day of June, 1983. Helen J. Frye Unites States District Judge App. 30 Jeffrey B. Wihtol Cooney & Crew 1618 S.W. First Avenue, #205 Portland, OR 97201 Telephone: (503) 221-1529 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARK G. MINNIS Civil Plaintiff, No. 83-469 J UDGMENT ORDER vs. ) ) ) ) THE UNITED STATES DEPARTMENT ) OF AGRICULTURE, R. MAX ) PETERSON, individually and ) as Chief, United States ) Forest Service; R.E. : ) ) ) ) ) ) ) ) ) WORTHINGTON, individually, and as Regional Forester, Region 6, United States Forest Service; and WILLIAM E. BUTLER, individually, and as District Ranger, Galice Ranger District, United States Forest Service Defendants. This matter having come before the Honorable Helen J. Frye for hearing, on May 16, 1983 on ecross-motions for summary judg- ment, and on July 11, 1983 on plaintiff's App. 31 motion for an award of attorneys fees and litigation costs, Jeffrey B. Wihtol and Cooney & Crew appearing in behalf of the plaintiff, and Judith Kobbervig, Assistant United States Attorney, appearing in behalf of defendants, and the Court’ having determined that plaintiff's request under the Freedom of Information Act for the names and addresses of the private permit applicants for the regulated 1983 Rogue River season is not exempt from disclosure pursuant to 5 USC § 552(b)(6), as claimed by defendants, and the Court further finding that plaintiff should be awarded his reasonable attorneys fees and litigation costs reasonably incurred herein against defendant United States Department of Agriculture pursuant to 5 USC § 552(a)(4)(E), it is therefore ordered, adjudged and decreed as follows: 1. Plaintiff's motion for summary judgment is allowed; App. 32 2. Plaintiff's motion for an award of reasonable attorneys' fees and litigation costs is allowed; 3. Defendants' Motion for Summary Judgment is denied; 4. Defendants shall immediately make available to plaintiff the names and addresses of the private permit’ trip applicants for the 1983 regulated Rogue River season. 5. Plaintiff shall have judgment against defendant United States Department of Agriculture for plaintiff's reasonable attorneys fees and litigation costs incurred herein, the exact sum and the reasons allowing said sum to be set forth re separate order. 6. The Court denies plaintiff's motion to invoke the provisions of 5 USC §552(a)(4)(F). App. 33 Dated this 12 day of Aug., 1983. s/s Helen J. Frye Helen J. Frye U.S. District Court Judge PRESENTED BY: /s/ Jeffrey 8B. Wihtol Jeffrey B. Wihtol Of Attorney for Plaintiff App. 34 IN THE UNITED STATES DISTRICT COURT : FOR THE DISTRICT OF OREGON MARK G. MINNIS, Civil No. 80-1138 Plaintiff, JUDGMENT ORDER V. MENT OF AGRICULTURE, R. MAX PETERSON, and R.E. WORTHINGTON, ) ) ) ) ) ) UNITED STATES DEPART- ) ) ) ) ) Defendants. ) The above-captioned matter having come before The Honorable Helen J. Frye in the above-entitled court on Monday, April 13, 1981, on defendants' motions to dismiss or in the alternative for summary judgment, and for protective order, and plaintiff's motion for summary judgment, defendants appearing by their attorney Judith D. Kobbervig, and plaintiff appearing by his attorneys Morrison, Dunn, Cohen, Miller & Carney, and Jeffrey B. Wihtol, and the Court having determined that the names-~ and addresses of the private trip leader permittees for the regulated 1980 Rogue App. 35 River season are not "Similar" to personnel or medical files, that disclosure of the permittees' names and addresses would constitute a minimal invasion of personal privacy, that plaintiff has a= private commercial interest and the publie has an interest in disclosure which outweighs the minimal invasion, that no alternative means for obtaining the information is available to plaintiff, that defendants' refusal to disclose the requested information was not unreasonable, and that the requested information is not exempt from disclosure under 5 U.S.C. § 772b(6), and finding no need to punish’ defendants, and that plaintiff's primary interest in requesting the names and addresses is conmercial, now, therefore, it is ordered and adjudged as follows: 1. Plaintiff's motion for summary judgment be and hereby is allowed; App. 36 2. Plaintiff's request for an award for attorney's fees is denied; 3. Defendant's motion to dismiss is allowed with respect to the individual defendants, R. Max Peterson, and R.E. Worthington, and that defendant's motion to dismiss or in the alternative for summary judgment is denied in all other respects; 4. Defendants' motion for a protective order is rendered moot by the foregoing rulings; 5. Defendant United States Department of Agriculture shall promptly make available to plaintiff the names and addresses of the private trip leader permittees for the regulated 1980 Rogue River season and plaintiff shall recover his costs and disbursements incurred herein. App. 37 DATED this 16 day of April, 1981. s/s Helen J. Frye United States District Judge Presented by: s/s Jeffrey B. Wihtol Jeffrey B. Wihtol --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3203%3A1. Public record. Not legal advice.