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Long v. Office of Personnel Management

February 23, 2010

SUSAN B. LONG AND DAVID BURNHAM, PLAINTIFFS,
v.
OFFICE OF PERSONNEL MANAGEMENT, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Susan B. Long and David Burnham, co-directors of the Transactional Records Access Clearinghouse ("TRAC"), a data gathering, research, and distribution organization associated with Syracuse University, brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of: the names and duty station information of all employees in the United States Department of Defense ("DOD"), the Drug Enforcement Agency ("DEA"), the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the U.S. Mint, the Secret Service; the names and duty station information of employees engaged in "sensitive" occupations; bargaining units for DOD personnel; and award dollar amounts for various Internal Revenue Service ("IRS") employees. This information is contained in the Central Personnel Data File ("CPDF"),*fn1 which is maintained by defendant Office of Personnel Management ("OPM").

In a Memorandum Decision and Order dated September 30, 2007, the Court held that the name and duty station information of employees engaged in General National Resources & Biological Science, Plant Protection and Quarantine, Hearings and Appeals, and Border Patrol

Agent occupations, or who work for the ATF, DEA, Secret Service, U.S. Mint, or DOD, and the names of IRS employees using pseudonyms, were personnel*fn2 files, the disclosure of which would be a "clearly unwarranted invasion of personal privacy", and therefore could be withheld by OPM under Exemption 6 to FOIA. 5 U.S.C. § 552(b)(2). Accordingly, the Court granted defendant's motion for summary judgment dismissing plaintiffs' FOIA claims in connection with those files. However, with respect to the name and duty station information for employees engaged in the twenty other occupations OPM deemed "sensitive", and the IRS award amounts, the Court found that the evidence OPM relied upon was insufficient to show disclosure "clearly unwarranted" under Exemption 6. Additionally, plaintiffs indicated in their submissions that they required additional time, due to OPM's late disclosure of certain records, to address OPM's withholding of "organizational component codes". For these reasons, the Court denied the balance of the parties' motions for summary judgment and directed the parties to file additional briefs and/or new motions for summary judgment on these issues. Presently before the Court are OPM's second motion for summary judgment and plaintiffs' second cross-motion for summary judgment (Dkt. No. 15).

II. EVIDENCE

Familiarity with the facts regarding the circumstances out of which this action arose, as well as those facts material to resolution of the prior motion for summary judgment, is assumed.*fn3 CPDF files. Id. Ex. I. On June 13, 2005, Long requested, and on August 23, 2005, OPM produced, the "Status and Dynamic Files" for the March 2005 CPDF. Id. Exs. K, L. Unlike previous CPDF files plaintiffs had received, however, these files did not include any DOD employee records. Id. Ex. L. In letters accompanying the CPDF files from OPM, Lukowski informed plaintiffs that OPM had excluded DOD employees from the files, and that plaintiffs should contact the DOD directly to obtain "Defense data". Id. According to plaintiffs, OPM, without explanation, also redacted names and most duty station information for more than 150,000 other government employees. Long Decl. ¶ 7. Plaintiffs commenced this action on December 5, 2005. Dkt. no. 1. The parties, however, continued to correspond: plaintiffs submitted further FOIA requests, and OPM provided responses to the new requests as well as new copies of CPDF files in response to plaintiffs' prior FOIA requests.

On January 25, 2006, plaintiffs requested from OPM the "Status and Dynamics files" for the June and September 2005 CPDF. Lukowski Decl. Ex. M. OPM produced these files on February 22, 2006. Id. Ex. N. According to plaintiffs, OPM redacted these files, too, omitting all records on DOD employees, the names of all IRS employees, duty station information for approximately 23,000 IRS employees, and name and duty station information for approximately 139,000 employees in other federal agencies. Long Decl. ¶ 8. In a letter accompanying these files, Lukowski explained that the "data elements" for employees in occupations related to national security were "masked." Lukowski Decl., Ex. N.

In a letter dated February 24, 2006, plaintiffs notified OPM that they were appealing OPM's withholding of information from the June and September 2005 CPDF files. Id. Ex. O. In a letter dated March 28, 2006, Kathie Ann Whipple, Acting General Counsel for OPM, denied plaintiffs' appeal. Id. Ex.P. Whipple explained that OPM withheld the information of employees in sensitive occupations on personal privacy grounds pursuant to Exemption 6. Id. Whipple advised plaintiffs that OPM had referred their FOIA request to the DOD and the IRS in accordance with OPM's agreements with those agencies. Id. Plaintiffs filed an amended complaint in this action on April 13, 2006. Dkt. no. 9.

On June 6, 2006 and September 19, 2006, OPM gave plaintiffs revised copies of the March, June, and September 2004 and 2005 CPDF files. OPM, however, continued to redact the names and specific duty station information for all employees of the DEA, ATF, U.S. Mint, and Secret Service or who worked in any of the 24 occupations OPM deemed sensitive. Long Decl. ¶ 11. According to plaintiffs, OPM also redacted the names and/or duty stations of 908 federal employees who neither worked for the above enumerated agencies nor in any of the 24 occupations OPM deemed sensitive. Long Decl. ¶ 14. Lukowski responded that OPM redacted the names and/or duty stations of these particular employees because they worked either in a "sensitive occupation" or for the DEA, ATF, U.S. Mint, or Secret Service "at any point during the requested period". Second Lukowski Decl. ¶ 5. The IRS and OPM also provided plaintiffs with new copies of the March, June and September 2005 CPDF records regarding IRS employees which included the names of all employees except those who were employed in "sensitive" occupations or in the IRS's Registered Pseudonym Program. Long Decl. ¶ 12. Additionally, the IRS withheld the dollar amounts of the "Total Awards" for some of its employees on the ground that the award amounts could be used to calculate an employee's performance rating. Second Adams Decl. ¶ 6.

In support of its second motion for summary judgment, OPM submitted two declarations by Gary Lukowski, Manager of Workforce Information and Planning within the Strategic Human Resources Policy Office in the Office of Personnel Management and a declaration by Janet Miner, Chief, Disclosure, Office of Governmental Liaison and Disclosure, Internal Revenue Service. In opposition to OPM's motion and in support of their cross-motion for summary judgment, plaintiffs submitted two declarations by plaintiff Susan Long, with exhibits, and a declaration by Henry Ruth, who, during his legal career, "served for many years in federal, state, and local law-enforcement capacities".

A. Name and Duty Station - "Sensitive" Occupations

1. Lukowski Declarations

In his third declaration, Lukowski states that OPM withheld name and duty station information regarding employees in the following "sensitive" occupations: correctional officer,

United States Marshal, police, nuclear materials courier, intelligence, intelligence clerk/aide, Long stated that:

The CPDF files provided to us on September 19, 2006, also included a field, "Organizational Component," that had not been provided in any of the previous copies of these CPDF files. OPM had not informed us in its responses to our FOIA internal revenue agent, nuclear engineering, internal revenue officer, general inspection, investigation and compliance, compliance inspection and support, general investigating, criminal investigating, game law enforcement, immigration inspection, alcohol, tobacco, and firearms inspection, customs and border interdiction, custom patrol officer, customs inspection, customs and border protection. Lukowski notes that plaintiffs seek "massive electronic lists of personal information regarding individuals in these occupations" and asserts that "[t]he privacy of these individuals is the highest when the request seeks comprehensive lists of personal information regarding individuals in these occupations" because the "electronic format . . . easily lends itself to searches for potential targets". Further, and in addition to addressing specifically why OPM deemed each occupation at issue "sensitive", Lukowski explains:

In consideration of the extremely sensitive nature of the occupations listed here, OPM determined that individuals and their families were exposed to an increased risk of being targeted for attack and harassment by international and domestic terrorists, foreign powers, violent criminals, and criminal organizations. These organizations and individuals could target any of the employees in sensitive occupations or their families as a means of degrading their ability to perform in their jobs or to vent misplaced frustrations against their agencies or the U.S. Government. Therefore, OPM concluded that all individuals in these occupations have an extremely strong privacy interest in their identities and duty station location information that heavily outweighs the virtually non-existent public interest in this information, and that this information should be protected under Exemption 6 of the Freedom of Information Act, and I protected this information accordingly.

3d Lukowski Decl. ¶ 23.

a. Correctional Officer

In his declaration Lukowski states that revealing the names and locations of correctional officers "potentially compromises the ability of the Bureau of Prisons to run a safe and effective correctional environment as it exposes officers to a greater risk of being pressured to commit illegal acts under duress (e.g. bringing in contraband, arranging for an escape, operating an outside criminal enterprise)." 3d Lukowski Decl. ¶ 3. Lukowski further states that disclosure of names or duty stations of correctional officers would "unduly place[] them and their families at heightened risk of harassment or attack". Id.

b. U.S. Marshals

Lukowski states that "[d]isclosing names and duty station locations of Marshals could compromise the ability of the Federal government to serve effective process and handle that aspect of the law enforcement system." Id. at ¶ 4. Lukowski further states that disclosure would compromise "the safety of Marshals and their families because Marshals perform undercover or sting operations where concealment of identity is essential." Id.

According to Lukowski, "only administrative heads and political appointees are identified [on websites]. Agents and officers are routinely not named as a group or in total. For example, the names of U.S. Marshals are not listed on the [web]site. Only the district Marshal - the most high profile and the administrative/managing/political officer - is listed; other marshals are not listed." 2d Lukoski Decl. ¶ 4.

c. Police

Lukowski states that disclosing the names and duty stations of federal police officers would compromise "the ability of the Federal government to conduct investigations and make arrests in matters of national concern," and would reveal "areas where investigations may be concentrated." Id. at ¶ 5. According to Lukowski, disclosure of the identity of federal police officers would place "them and their families at heightened risk of harassment or attack as it may lead to persecution and revenge by persons or members of gangs and organized crime who have had adverse interactions with these employees." Id.

d. Nuclear Materials Courier

Lukowski states that individuals employed in the occupation of nuclear materials courier are more susceptible to harassment or attack if their names and duty stations are disclosed because the sensitive nature of the jobs. According to Lukowski, a nuclear materials courier performs vehicle operations, armed escort, communications and security equipment operations, and related work designed for, and peculiar to, the safe and secure transport of highly sensitive nuclear materials." 4th Lukowski Decl. ¶ 6.

e. Nuclear Engineering

Lukowski states that nuclear engineers are involved in a variety of projects and programs such as: reactor operations, fuel cycle management program, fuel and fuel rod development, control of manufacturing, repair, or maintenance processes, licensing, safety, inspection and incident analysis, compliance with standards or contract provisions, design, instrumentation, and test operations, transportation and storage of radioactive materials and waste, and engineering staff or program responsibilities carried out in a research and development organization.

Id. at ¶ 10. Lukowski states that federal nuclear engineers "have intimate knowledge of nuclear principles and existing systems." Id. Based on the nature of their jobs, Lukowski explains, nuclear engineers are more susceptible to harassment or attack if their names and duty stations are disclosed.

f. Intelligence and Intelligence Clerk/Aide

Lukowski explains that OPM withheld the names and duty stations of employees engaged in the intelligence and intelligence clerk/aid occupations because these individuals are empowered with, or provide support to those who are empowered with, the collection of sensitive information that affects national security and national security policy. 3d Lukowski Decl. ¶¶ 7-8.

g. Internal Revenue Agent and Internal Revenue Officer

According to Lukowski, IRS Agents "determine or advise on liability for Federal taxes" and "conduct independent on-site examinations of the Federal income tax returns of individuals, businesses, corporations, and other entities to determine correct tax liabilities." 3d Lukowski Decl. ¶ 9. Lukowski states that individuals employed as IRS officers "are empowered with activities relating to the collection of delinquent taxes." 3d Lukowski Decl. ¶ 11. In the performance of their duties, IRS officers "routinely deal with fearful, hostile, and defensive individuals and organizations". Id. Based on their occupations, Lukowski states that the disclosure of the names and locations of these individuals could place them "at risk of attack or harassment by persons who may seek to exact revenge based upon collection activities or seeking to vent misplaced frustrations." Id. at ¶¶ 9, 11. Lukowski further states that "[u]nder agreement with the IRS and Department of Treasury, based on the IRS's Registered Pseudonym Program, OPM does not release name and duty station of any IRS employee." Id.

h. General Inspection, Investigation, and Compliance and Compliance Inspection and Support

Lukowski states that these occupations include "positions that perform or supervise inspection or technical support work in assuring compliance with or enforcement of Federal law, regulations, or other mandatory guidelines that are not classifiable to another, more specific, occupational series." 3d Lukowski Decl. ¶¶ 12, 13. According to Lukowski, individuals employed in these occupations are located within the departments of Homeland Security and Justice, and centered in the FBI, ATF, and DEA, agencies "which have historically either NOT provided certain information to OPM or have had information redacted upon release." Id.

Disclosure of their identities "places them and their families at heightened risk of harassment or attack". Id.

Lukowski states that prior to September 2005, there were only four airport screeners employed by the Transportation Security Administration and their records were protected. Post 2005, however, over 51,000 individuals were classified into the same category as the four screeners, and consequently OPM has protected their records as well. 4th Lukowski Decl. ¶ 14.

i. General Investigating

Lukowski states that the occupation entitled general investigating "includes positions that involve planning and conducting investigations covering the character, practices, suitability or qualifications of persons or organizations seeking, claiming, or receiving Federal benefits, permits, or employment when the results of the investigation are used to make or invoke administrative judgments, sanctions, or penalties." 3d Lukowski Decl. ¶ 14. Individuals employed in this occupation are "concentrated" at OPM and the Equal Employment Opportunity Commission. Id. Lukowski explains that because "they are often responsible for investigating individuals and particularly sensitive situations, disclosure of their locations and identities places them and their families at heightened risk of harassment and attack from individuals seeking to undermine or disrupt the investigations or who were unhappy with the outcome of their investigation and wish to target the investigators or their families in retaliation." Id.

Lukowski further explains that "a large number of positions are indeed sensitive (not just one)" and "it is imperative to protect all those employees". According to Lukowski:

[t]he only way to do this effectively is to label the entire series as sensitive. It is not feasible or effective to attempt to identify each and every individual position that is sensitive versus those that are not. In addition, there is no way to identify which positions or individuals that are not currently performing sensitive duties might be assigned sensitive duties at a future date. 4th Lukowski Decl. ¶ 4.

j. Game Law Enforcement

Lukowski states that individuals employed in the occupation of game law enforcement "were located in the Department of the Interior's Fish and Wildlife Service, but were reclassified" in 2003. 3d Lukowski Decl. ¶ 16. According to Lukowski, "[t]his series is being considered for cancellation. " Id. Lukowski states that, presently, these individuals are in the Departments of Defense and Commerce. Id.

In his fourth declaration, Lukowski states that "[p]ersons in this series have enforcement responsibilities." 4th Lukowski Decl. ¶ 11. Lukowski states that individuals employed in Game Law Enforcement work in close coordination with multiple state and Federal agencies to enforce the laws protecting living marine resources." Id. at ¶ 11. Lukowski avers that these officers are involved in the "extremely hazardous" activity of "conducting surveillance and boarding vessels". Id. at ¶ 11. These individuals also work with the United States Coast Guard and the Department of Homeland Security. Id.

Lukowski further explains regarding the potential for cancellation of the series that the "work performed by persons in this series will be re-classified into a new series . . . and will still continue to perform ...


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