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Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`--- -- X
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`JOHN COOK,
`
`Plaintiff,
`
`11-cv-8624 (KTD)
`
`-v-
`
`MEMORANDUM & ORDER
`
`NATIONAL ARCHIVES AND RECORDS
`ADMINISTRATION,
`
`Defendant.
`
`-- - --- ----------- X
`
`KEVIN T. DUFFY
`UNITED STATES DISTRICT JUDGE
`
`Plaintiff John Cook, a political reporter for Gawker Media,
`
`requested documents from the National Archives and Records
`
`Administration ("NARA" or "the government") pursuant to the
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`Freedom of Information Act ("FOIA") relating to research
`
`requests made on behalf of former President George W. Bush and
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`former Vice President Dick Cheney. NARA denied Mr. Cook's
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`request in part, citing the Presidential Records Act and FOIA
`
`Exemption 6 as its reasons for withholding certain information.
`
`Mr. Cook initiated this lawsuit to challenge NARA's
`
`determination and the parties have cross moved for summary
`
`judgment. For the reasons discussed below, Plaintiff's motion
`
`is DENIED and the government's motion is GRANTED.
`
`BACKGROUND
`
`The President
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`Records Act ("PRA"), 44 U.S.C. §§ 2201-07
`
`(2012), was passed in 1978 in the wake of Watergate to establish
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`1
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 2 of 16
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`"the public ownership of records created by future presidents
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`and their staffs in the course of discharging their official
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`duties ll and "procedures governing the preservation and public
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`availability of these records at the end of a Presidential
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`administration. II H.R. Rep. No. 95-1487, at 2 (1978). Prior to
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`the Nixon Administration, Presidential records were generally
`
`viewed as the President's personal property. See Jonathan
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`Turley, Presidential Papers and Popular Government: The
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`Convergence of Constitutional and Property Theory in Claims of
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`Ownership and Control of Presidential Records, 88 Cornell L.
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`Rev. 651, 657-67 (2003) (discussing the history of access to
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`presidential records).
`
`The PRA makes public "Presidential records," which are
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`defined as "any documentary materials relating to the political
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`activities of the President or members of his staff, but only if
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`such activities relate to or have a direct effect upon the
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`carrying out of constitutional, statutory, or other official or
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`ceremonial duties of the President."
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`44 U.S.C. § 2201(2) (A)
`
`(2012). The PRA explicitly does not encompass a President's
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`personal records. See 44 U.S.C. § 2201 (2) (B) (iii) (2012)
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`("The
`
`term 'Presidential records'
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`. does not include any
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`documentary materials that are .
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`(ii) personal records
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`.. "). It tasks NARA's chief officer, the Archivist of the
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`United States, with "responsibility for the custody, control,
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`2
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 3 of 16
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`and preservation of, and access to, the Presidential records .
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`/I
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`44 U.S.C. § 2203 (f) (l) (2012).
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`The PRA places two restrictions on public access to
`
`Presidential records:
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`(i) a five-year time period during which
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`an administration's files are made available only for archival
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`purposes, see 44 U.S.C. § 2204 (b) (2) (A)
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`(2012), and (ii) a
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`period of up to 12 years during which access is restricted for
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`documents in six enumerated categories designated by the
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`President before he leaves office. See 44 U.S.C. § 2204(a)
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`(2012) . Former officials of the relevant Administration are
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`permitted to access the documents during the restricted periods,
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`and they may designate representatives to access the documents
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`on their behalf.
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`42 U.S.C. § 2205(3)
`
`(2012). The incumbent
`
`President, the judiciary, and Members of Congress are also
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`permitted early access to the restricted documents for
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`government business.
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`44 U.S.C. § 2205(2)
`
`(2012). To access
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`these documents, officials or their designees must make a
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`request to NARA.
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`See Robinson Decl. ~ 17. Collectively, NARA
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`refers to these requests made by or on behalf of current and
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`former officials as "special access requests."
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`rd. ~ 10. These
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`special access requests "reveal the identity of the requester
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`and the substance of what the requester seeks." 1 Def.'s Mem.
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`1 More specifically, " [s]pecial access requests generally may include,
`research on behalf of the former President, former Vice President, and former
`First Lady for their memoirs; research for specific documents, including for
`
`3
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 4 of 16
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`Law in Supp. Mot. Summ. J. at 5. NARA maintains records of
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`special access requests.
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`On October 21, 2010, Plaintiff John Cook submitted a ForA
`
`request to NARA requesting the agency's documentation of:
`
`• "all requests for access to records received by the George
`W. Bush Presidential Library since February 1, 2009";
`
`• "all requests for access to the records of former Vice
`President Dick Cheney received by NARA staff since February
`1, 2009"; and
`
`• all correspondence regarding those requests.
`
`Compl. Ex. 1.
`
`NARA responded on December 1, 2010, indicating that it
`
`would disclose ForA requests for access to Presidential records
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`made by the general public, but that it was categorically
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`withholding the special access requests. See Compl. Ex. 2.
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`NARA indicated that it treats special access requests as
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`"researcher reference requests," which, in its view, are
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`nondisclosable under ForA Exemption 6, 5 U.S.C. § 552(b) (6)
`
`(2012)
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`("Exemption 6"). Exemption 6 protects the disclosure of
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`information that would "constitute a clearly unwarranted
`
`invasion of personal privacy."
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`rd. NARA also explained that
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`"ForA requesters are not subject to the same right to privacy as
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`researchers." Compl. Ex. 2.
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`scholarly publications; requests for copies of textual and audiovisual
`materials to be sent to the permanent facility's museum design firm; as well
`as requests from individuals requesting copies of their photographs taken
`with the former President or Vice President." Robinson Decl. , 15.
`
`4
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 5 of 16
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`Mr. Cook appealed, see Compl. Ex. 3, and upon
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`reconsideration NARA retracted its decision to withhold the
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`requests made by the incumbent President, the judiciary, and
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`Members of Congress on the basis that those officials do not
`
`have a personal privacy interest in the information sought as
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`required by Exemption 6, since they are only permitted access to
`
`the records for government business. See 44 U.S.C. § 2205(2)
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`(2012) i compl. Ex. 4. NARA maintained its position, however,
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`that former President Bush and Vice President Cheney's requests
`
`for records from their own Administration are protected by
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`Exemption 6.
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`See Compl. Ex. 4.
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`Mr. Cook filed this lawsuit on November 29, 2011. Mr.
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`Cook, who is a political reporter for Gawker Media, has offered
`
`two public interest justifications for seeking this information:
`
`(i) ~[T]o gain insight into the way in which the former
`
`President and Vice President have chosen to shape the public's
`
`perception of their time in office, and to provide this insight
`
`to the public through online news stories," Compl. ~ 5, and (ii)
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`to "shed light on how NARA is administering the PRA." PI.'s
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`Memo. Law in Supp. Mot. Summ. J. at 1.
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`The parties have agreed by stipulation that the issues in
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`this case are narrowed to the FOIA requests for (1) special
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`access requests to NARA by former President Bush, former Vice
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`President Cheney, and their designated representatives, and (2)
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`5
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 6 of 16
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`NARA!s responses.
`
`See Dkt. NO.6. The parties have cross-
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`moved for summary judgment.
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`I.
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`Standard of Review
`
`ANALYSIS
`
`FOIA cases are generally! and most appropriately, resolved
`
`on summary judgment.
`
`See Bloomberg L.P. v. Board of Governors
`
`of the Fed. Reserve Sys., 649 F. Supp. 2d 262,271
`
`(S.D.N.Y.
`
`2009) .
`
`Summary
`
`judgment
`
`is appropriate where "there is no
`
`genuine issue as to any material fact and that the moving party
`
`is entitled to judgment as a matter of law."
`
`Fed. R . C i v . P .
`
`56 (a) .
`
`"In ruling on a motion for summary judgment! a court must
`
`resolve all ambiguities and draw all factual inferences in favor
`
`of the nonmoving party." McClellan v. Smith, 439 F.3d 137, 144
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`(2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
`
`242, 255 (1986)). "Inferences and burdens of proof on cross­
`
`motions for summary judgment are the same as those for a
`
`unilateral summary judgment motion." Ferrigno v. U.S. Dep't of
`
`Homeland Sec., No. 09 Civ. 5878, 2011 WL 1345168, at *3
`
`(S.D.N.Y. Mar. 29, 2011) (citing Straube v. Florida Union Free
`
`Sch. Dist., 801 F. Supp. 1164, 1174 (S.D.N.Y. 1992).
`
`"[E]ach
`
`cross-movant must present sufficient evidence to satisfy its
`
`burden of proof on all material facts." U.S. Underwriters Ins.
`
`Co. v. Roka LLC, No. 99 Civ. 10136, 2000 WL 1473607, at *3
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`6
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 7 of 16
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`(S.D.N.Y. Sept. 29, 2000).
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`The agency asserting the exemption - here, NARA - bears the
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`burden of justifying nondisclosure. Wilner v. Nat'l Sec.
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`~ency, 592 F.3d 60, 69 (2d Cir. 2009).
`
`"The agency's decision
`
`that the information is exempt from disclosure receives no
`
`deferencei accordingly, the district court decides de novo
`
`whether the agency has sustained its burden." Bloomberg, L.P.
`
`v. Board of Governors of the Fed. Reserve Sys., 601 F.3d 143,
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`147 (2d Cir. 2010).
`
`II. FOIA Exemption 6
`
`FOIA requires federal agencies to make certain information
`
`available to the public and sets forth the methods by which the
`
`public can request the information. See generally 5 U.S.C. §
`
`522 (2012).
`
`FOIA was enacted to "open agency action to the
`
`light of public scrutiny." U.S. Dep't of Justice v. Reporter's
`
`Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989) (citing
`
`of Air Force v. Rose, 425 U.S. 352, 372 (1976)). There
`
`are, however, nine categories of information that are exempt
`
`from disclosure under FOIA. See 5 U.S.C. § 522(b}
`
`(2012).
`
`Exemption 6 of FOIA -
`
`the exemption the government is
`
`asserting here
`
`permits an agency to withhold "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)
`
`(2012).
`
`"Exemption 6 is intended to
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`7
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 8 of 16
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`'protect individuals from the injury and embarrassment that can
`
`result from the unnecessary disclosure of personal
`
`information. III Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005)
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`(citing u.s. Dep't of State v. Washington Post Co., 456 U.S.
`
`595,599 (1982)).
`
`To determine whether information is protected from
`
`disclosure under Exemption 6, courts undertake a two-part
`
`inquiry.
`
`See Wood, 432 F.3d at 86. First, the Court must
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`"determine whether the personal information is contained in a
`
`file similar to a medical or personnel file. 1I
`
`Id. Second, the
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`Court must "balance the public's need for the information
`
`against the individual's privacy interest to determine whether
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`the disclosure of the names would constitute a clearly
`
`unwarranted invasion of personal privacy." Wood, 432 F.3d at 86
`
`(internal citations omitted).
`
`If the information sought is not
`
`a personnel, medical, or similar file, the Court need not engage
`
`in the balancing inquiry. See, ~~, Families for Freedom v.
`
`U.S. Customs and Border Prot., 837 F. Supp. 2d 287, 301
`
`(S.D.N.Y. 2011).
`
`A. The Special Access Requests are 'Similar Files.'
`
`Since the special access requests are not medical or
`
`personnel files, they are only exempt from disclosure under
`
`Exemption 6 if they constitute 'similar files.' See 5 U.S.C. §
`
`552(b) (6)
`
`(2012). The Supreme Court has interpreted the term
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`8
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 9 of 16
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`'similar files' broadly to include any ~detailed Government
`
`records on an individual which can be identified as applying to
`
`that individual." Washington Post, 456 U.S. at 602 (protecting
`
`from disclosure under FOIA Exemption 6 documents indicating
`
`whether two Iranian nationals
`
`ld valid United States
`
`passports) i see Wood 432 F.3d at 86 (~[W]e ask whether the
`
`records at issue are likely to contain the type of personal
`
`ormation that would be in a medical or personnel file."). As
`
`the Supreme Court has observed, ~The House and Senate Reports,
`
`although not defining the phrase 'similar files,' suggest that
`
`Congress' primary purpose in enacting Exemption 6 was to protect
`
`individuals from the injury and embarrassment that can result
`
`from the unnecessary disclosure of personal information."
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`Washington Post, 456 U.S. at 599.
`
`Courts have considered records that contain information
`
`such as "place of birth, date of birth, date of marriage,
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`employment history, and comparable data" as 'similar files' for
`
`the first step of the Exemption 6 analys
`
`Washington Post,
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`456 U.S. at 600. Documents containing marital status and names
`
`of personnel's spouses are also 'similar files.' See Simpson v.
`
`Vance, 648 F.2d 10, 17 (D.C. Cir. 1980) (marital status and
`
`names of spouses of foreign-service personnel were properly
`
`withheld under Exemption 6), abrogated on other grounds
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`Washington Post, 456 U.S. 595. Likewise, an agency's
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`9
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 10 of 16
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`investigative files that likely contain identifying information
`
`about (i) the sUbject of an investigation or (ii) third parties
`
`such as witnesses constitute 'similar files.' See Wood, 432
`
`F.3d at 87 ("highly detailed" records containing "personal
`
`information about the sUbjects of the investigation" - FBI
`
`agents accused of filing false affidavits for arrest warrants ­
`
`and "private information about other individuals, particularly
`
`witnesses" were 'similar files' for Exemption 6 analysis) i
`
`Perlman v. U.S.
`of Justice, 312 F.3d 100, 106 (2d Cir.
`-------------------------------------
`2002) (report of investigation involving improper conduct by
`
`agency official was a
`
`'similar file' because it was a "detailed
`
`Government record" containing identifying information about the
`
`subject of the investigation), aff'd on rehearing, 380 F.3d 110
`
`(2d Cir. 2004).
`
`In contrast, inter-agency emails - even ones that included
`
`the sender's name, position, department, and phone number - are
`
`not 'similar files' entitled to protection under Exemption 6.
`
`See Families for Freedom, 837 F. Supp. 2d at 301.
`
`"[M]undane
`
`interoffice communications that do not contain any detailed
`
`personal information .
`
`can in no way be construed as similar
`
`to personnel or medical files."
`
`Id. i see also VoteHemp, .. Inc. v.
`
`DEA, 567 F. Supp. 2d I, 15 (D.D.C. 2004) (redacted names of DEA
`
`employees who authored or received documents are not 'similar
`
`10
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 11 of 16
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`files,' but names and addresses of third parties contained in
`
`documents constitute 'similar files').
`
`Courts determining whether a file is 'similar' to a medical
`
`or personnel file have thus drawn a line between documents that
`
`contain, on the one hand, personal information about (i) third
`
`parties who are not agency personnel or (ii) agency personnel
`
`who are subjects of an investigation, and, on the other hand,
`
`(iii) information pertaining to agency personnel who are going
`
`about their normal work duties. The former two are 'similar
`
`files' while the latter is not. This application is consistent
`
`with FOIA's dual objectives of permitting citizens to know "what
`
`their government is up to," Dep't of Justice v. Reporter's Comm.
`
`for Freedom of Press, 489 U.S. 749, 773 (1989), whi
`
`at the
`
`same time protecting the privacy of citizens whose personal
`
`information unwittingly turns up in agency documents.
`
`Here, NARA has identified approximately 1,000 responsive
`
`'special access requests,' see Robinson Decl. ~ 19, that "reveal
`
`the identity of the requester and the subject of what the
`
`requester seeks./f Def.'s Mem. Law in Supp. Mot. Summ. J. at 5i
`
`see also Robinson Decl. ~ 15. However, the government has not
`
`provided specific details on the contents of any particular
`
`document. 2 Regardless, the description the government has
`
`2 Typically in ForA cases the government is required to provide a Vaughn index
`to support its assertion of a ForA exemption, which should "describe with
`reasonable specificity the nature of the documents at issue and the
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`11
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 12 of 16
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`provided is sufficient for the Court to conclude that the
`
`records at issue here are 'similar fi s' under Exemption 6
`
`since they are ~detailed Government records on an individual
`
`which can be identified as applying to that individual."
`
`Was~ington Post, 456 U.S. at 602. Because the research requests
`
`contain the names and potentially the contact information of the
`
`researchers who have been designated by the former President and
`
`Vice President, the records that Mr. Cook requests can be
`
`identified as applying to those researchers, who are not NARA
`
`agency officials. Cf. Families for Freedom, 837 F. Supp. 2d at
`
`301.
`
`In addition, because the researchers are acting on former
`
`President George W. Bush and former Vice President Dick Cheney's
`
`behalf, the records that Mr. Cook requests can be identified as
`
`applying to the former President and Vice President. The
`
`records are detailed in the sense that they comprise
`
`approximately 1,000 pages of research requests made pertaining
`
`to the former President and former Vice President's time in
`
`office. Ultimately, given the Supreme Court's broad
`
`interpretation of the term, the records at issue here are
`
`'similar files.'
`
`justification for nondisclosure." See Halpern v. Fed. Bureau of
`Invest~gation, 181 F.3d 279, 290 (2d Cir. 1999); ~aughn v. Rosen, 484 F.2d
`820 (D.C. Cir. 1973). The government has not done so here, but does not need
`to since it is asserting a blanket exemption for all special access requests.
`
`12
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 13 of 16
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`B. Disclosure of Certain Portions of the Requested Documents
`Would Constitute a "Clearly Unwarranted Invasion of
`Personal Privacy."
`
`Since the Court has determined that the requested records
`
`are 'simi
`
`files,' it must next "balance the public's need for
`
`the information against the individual's privacy interest,"
`
`Wood, 432 F.3d at 86, to determine whether disclosure would
`
`constitute a "clearly unwarranted invasion of personal privacy."
`
`5 U.S.C. § 552(b) (6)
`
`(2012). To make this determination, courts
`
`balance the public's interest in disclosure against the
`
`individuals' privacy interests. Rose, 425 U.S. at 372; Hopkins
`
`v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 86 87 (2d Cir.
`
`1991) .
`
`The privacy side of the balancing test is broad. See
`
`929 at 87. "It encompasses all interests involving the
`
`individual's control of information concerning his or her
`
`person." Wood, 432 F.3d at 88 (internal citations omitted).
`
`The government
`
`the burden of demonstrating the existence
`
`of a substantial privacy interest. Sims v. Central Intelligence
`
`~~~, 642 F.2d 562, 573 (D.C. Cir. 1980).
`
`On the other side, the "relevant public interest in the
`
`FOIA balancing analysis" is "the extent to which disclosure of
`
`the information sought would 'shed light on an agency's
`
`performance of
`
`s statutory duties' or otherwise let citizens
`
`know
`
`'what their government is up to. "' Dep't of Defense v.
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`13
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 14 of 16
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`FLRA, 510 U.S. 487, 497 (1994)
`
`(quoting Reporter's Comm. for
`
`Freedom of Press, 489 U.S. at 773).
`
`"That purpose, however, is
`
`not fostered by disclosure of information about private citizens
`
`that is accumulated in various governmental files but that
`
`reveals little or nothing about an agency's own conduct./I
`
`Reporter's Comm. for Freedom of Press, 489 U.S. at 773.
`
`Balancing the public's need
`
`the requested information
`
`against the former official's and their designees' privacy
`
`interests, the Court finds that disclosure here would constitute
`
`a clearly unwarranted invasion of personal privacy.
`
`First, the former President and Vice President's research
`
`designees have an obvious privacy interest their names and
`
`contact information, which evidently appear on the special
`
`access requests. Like the documents protected in Washington
`
`Post, 456 U.S. at 600, __~___ , 648 F.2d at 17, and Wood, 432
`
`F.3d at 87 - all of which contained personal identifying
`
`information that was unrelated to agency personnel going about
`
`their work duties -
`
`the documents here fit squarely within
`
`Exemption 6's purview to the extent they contain personal
`
`identifying information about the designees.
`
`Second, the government has presented a number of compelling
`
`arguments demonstrating that former President George W. Bush and
`
`Vice President Cheney have a substantial privacy interest in the
`
`requested documents. Given that the privacy side of the
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`14
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 15 of 16
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`balancing test encompasses "all interests involving the
`
`individual's control of information concerning his or her
`
`person," Wood, 432 F.3d at 88 (internal citations omitted), the
`
`Court agrees with the government that President Bush and Vice
`
`President Cheney have a great privacy interest in "not having
`
`the subject about which they think and gather information being
`
`involuntarily broadcast to the general public." Def.'s Mem. Law
`
`in Supp. Mot. Summ. J. at 12.
`
`It is evident that researchers
`
`have an expectation of confidentiality when they conduct
`
`research at NARA facilities, see, ~, Def.'s Mem. Law in Supp.
`
`Mot. Summ. J. at 14-17, and making NARA research requests
`
`accessible through FOIA will inevitably have a chilling effect
`
`on academic research. And since the PRA is in part designed to
`
`give former Presidents and Vice Presidents a time-limited
`
`monopoly on certain information to encourage the preparation of
`
`their memoirs, their research in particular has important
`
`privacy interests at stake.
`
`The public interest justifications for disclosing the
`
`research requests do not outweigh these privacy interests. 3 The
`
`3 Mr . Cook offered the following two public interest justifications for his
`FOIA request: (i) "[T]o gain insight into the way in which the former
`President and Vice President have chosen to shape the public's perception of
`their time in office, and to provide this insight to the public through
`online news stories," Compl. ~ 5, and (ii) to "shed light on how NARA is
`administering the PRA." Pl.'s Memo. Law in Supp. Mot. Summ. J. at 1. The
`latter justification was not pleaded in the Complaint, and, frankly, appears
`to be an after-the-fact attempt to shoehorn Plaintiff's request to fit within
`the existing legal framework in which "lolfficial information that sheds
`light on an agency's performance of its statutory duties falls squarely
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`15
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`Case 1:11-cv-08624-KTD-FM Document 22 Filed 02/01/13 Page 16 of 16
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`American public stands to gain little from knowing what the
`
`former officials are researching during the time period
`
`protected by the PRA.
`
`In contrast, the invasion of privacy on
`
`the former officials and their designees is great.
`
`The government has thus fulfilled its burden of showing a
`
`clearly unwarranted invasion of personal privacy, and the public
`
`interests that Mr. Cook articulates do not outweigh any privacy
`
`interest that the former President and Vice President, and their
`
`designees, have in the requested documents.
`
`CONCLUSION
`
`For the reasons discussed above, the Plaintiff's Motion for
`
`Summary Judgment is DENIED, and Defendant's Motion for Summary
`
`Judgment is GRANTED. The Clerk
`
`the Court is directed to
`
`terminate motions number 7 and 17 on the ECF docket, and to
`
`close the case.
`
`SO ORDERED:
`
`Dated:
`
`New York, New York
`January 30, 2013
`
`?,l
`
`:;j~~
`
`·'KEVIN T.
`UNITED STATES D
`
`within [FOIA's] statutory purpose." Dep't of Defense, 510 U.S. at 495 96.
`This argument could apply in each and every case -
`for every decision by NARA
`gives insight into "how NARA is administering the PRA." PI.'s Memo. Law in
`Supp. Mot. Summ. J. at 1.
`
`16

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