Prudential Locations LLC v. U.S. Department of Housing & Urban Development

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PRUDENTIAL LOCATIONS LLC, a No. 09-16995
Hawaii limited liability company,
Plaintiff-Appellant, D.C. No.
1:09-cv-00128-
v. SOM-KSC

U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawai’i
Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted
February 15, 2011—Honolulu, Hawaii
Reargued and Resubmitted
March 9, 2012—Pasadena, California

Filed October 9, 2013

Before: A. Wallace Tashima, William A. Fletcher,
and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion;
Dissent by Judge Berzon
2 PRUDENTIAL LOCATIONS LLC V. HUD

SUMMARY*

Freedom of Information Act

The panel affirmed the district court’s summary judgment
in favor of the U.S. Department of Housing and Urban
Development and held that Exemption 6 of the Freedom of
Information Act justified the agency’s decision to redact
identifying information.

Plaintiff filed a Freedom of Information Act (“FOIA”)
request with HUD, asking it to disclose the names of the
individuals who had complained to HUD that plaintiff had
violated the Real Estate Settlement Procedures Act. The panel
held that the identity of a person complaining to a federal
agency about a violation of law is protected from disclosure
under Exemption 6 of FOIA.

Judge Berzon dissented, and would remand to the district
court for further factual development because the present
record is inadequate to confirm the existence of any personal
privacy interest to justify invocation of FOIA’s Exemption 6.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PRUDENTIAL LOCATIONS LLC V. HUD 3

COUNSEL

Jason H. Kim (argued), Schneider Wallace Cottrell Brayton
Konecky, LLP, San Francisco, California; Paul Alston,
Alston Hunt Floyd & Ing, Honolulu, Hawaii, for Plaintiff-
Appellant.

Steve Frank (argued), United States Department of Justice,
Civil Division, Washington, D.C., for Defendant-Appellee.

OPINION

PER CURIAM:

The question in this case is whether the identity of a
person complaining to a federal agency about a violation of
law is protected from disclosure under Exemption 6 of the
Freedom of Information Act (“FOIA”). Plaintiff Prudential
Locations (“Prudential”) filed a FOIA request with the U.S.
Department of Housing and Urban Development (“HUD”),
asking it to disclose the names of the individuals who had
complained to HUD that Prudential had violated the Real
Estate Settlement Procedures Act (“RESPA”). (For
convenience, we will use the plural even though it is possible
that the two complaints were written by the same person.)
HUD invoked Exemption 6 to justify redacting the documents
to conceal the authors’ identities. Exemption 6 covers
“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). The district court
held that Exemption 6 justifies the agency’s decision to redact
identifying information. Prudential Locations LLC v. U.S.
4 PRUDENTIAL LOCATIONS LLC V. HUD

Dep’t of Housing & Urban Dev., 646 F. Supp. 2d 1221 (D.
Hawai’i 2009). We affirm.

A. Background

HUD is the agency responsible for administering and
enforcing RESPA, 12 U.S.C. §§ 2601–2617. RESPA
prohibits referral fees for real estate settlement services: “No
person shall give and no person shall accept any fee,
kickback, or thing of value [for referring] business incident to
or a part of a real estate settlement service involving a
federally related mortgage loan.” Id. § 2607(a). HUD
initiated two investigations of Prudential when it received
communications, sent five years apart, alleging that
Prudential gave referral awards in violation of RESPA.

In the first communication, the author wrote a one-page
letter dated July 7, 2003, (the “2003 Letter”) alleging that
“Prudential Locations Real Estate Salespersons get monetary
kickbacks ($$,$$$) for the amount of business that is referred
to Wells Fargo.” The author explained that “Wells Fargo”
was shorthand for Wells Fargo Home Mortgage of Hawaii, a
joint venture formed by Wells Fargo Bank and Prudential
Locations. The author attached an article published on
January 26, 2003, in the Honolulu Star-Bulletin, quoting it as
saying that “agents from firms . . . throughout Hawaii . . .
were eligible to win [a] Mercedes by referring at least $1
million in loans to Wells Fargo in 2002.” The author asked,
“Is it a violation of RESPA for real estate agents to receive
compensation for steering business to a specific Lender?”
The author stated that he or she anticipated that HUD would
provide a written reply. The author neither asked for
anonymity nor authorized HUD to reveal his or her identity.
 PRUDENTIAL LOCATIONS LLC V. HUD 5

In response to the letter, HUD opened an investigation.
HUD discovered, consistent with the letter’s allegations, that
Prudential rewarded agents with “prizes” in return for
referring over $1 million of business to Wells Fargo. The
prizes included a Mercedes-Benz lease and vacation packages
to Thailand and Las Vegas. HUD closed the investigation in
2005 after entering into a settlement agreement under which
Prudential agreed to stop violating RESPA and to pay a
penalty of $48,000.

In the second communication, the author wrote HUD an
email dated January 19, 2008 (the “2008 Email”). The
author, who was aware of the $48,000 penalty imposed under
the 2005 settlement agreement, wrote that Prudential was
“blatantly violating RESPA laws again.” The author alleged
that Prudential was “charging an extra fee for an in house
transaction coordinator EVERY TIME to agents that do not
use ($75 extra fee) Wells Fargo (affiliated company of
Prudential Locations LLC) and ($50 extra fee) Island Title
(affiliated company of Prudential Locations LLC).” The
author wrote that an agent from Prudential gave the author
this information and “expressed concern that his company
was violating RESPA laws again.” The author of the 2008
Email asked HUD to keep his or her name anonymous.

In response to the 2008 Email, HUD opened a second
investigation. In March 2009, it concluded that the evidence
did not substantiate the email’s allegations and closed the
investigation.

In June 2008, while the second investigation was
underway, Prudential made a FOIA request for HUD’s
records of the two investigations. Prudential specifically
asked HUD to produce information “to show the identity of
6 PRUDENTIAL LOCATIONS LLC V. HUD

all parties who provided information to HUD relating to the
initiation” of both HUD investigations. In March 2009, HUD
produced roughly four-hundred pages of responsive
documents.

HUD produced the 2003 Letter and the 2008 Email in
response to the FOIA request, but it redacted information in
both documents in order to conceal the authors’ identities.
HUD redacted the letterhead and the signature line of the
2003 Letter. HUD produced a redacted version of the 2008
Email as part of its initial response, and it turned over a less
redacted version of the email during the course of this
litigation. In the less redacted version, HUD redacted the
“From” field in the email header, the first sentence, and the
author’s contact information. HUD also redacted language
after the phrase “but I would like to remain anonymous.” The
length of this redaction suggests that it contained ten or
eleven average-length words. Its location in the email
suggested that the redacted language explained why the
author desired anonymity.

In a letter to Prudential’s attorney, HUD justified the
redactions under Exemption 6. HUD explained that
“[r]elease of this information would constitute an
unwarranted invasion of personal privacy” outweighing any
“interest of the general public in reviewing these portions of
government documents.”

Shortly thereafter, Prudential brought suit in federal
district court specifically seeking disclosure of the identities
of the authors of the two communications. Prudential moved
for summary judgment. HUD filed a cross-motion for
summary judgment that included an affidavit from Ivy
Jackson, HUD’s Director of the Office of RESPA and
 PRUDENTIAL LOCATIONS LLC V. HUD 7

Interstate Land Sales. Jackson described HUD’s general
policy of concealing the identity of any complainant “whether
or not the complainant affirmatively authorized the release
[of his or her name].” However, it appears that HUD may
release the complainant’s name under certain circumstances
if the “person has specifically authorized release of his or her
name.” She explained that HUD relies on “industry
competitors and insiders” as sources of information to detect
RESPA violations. She feared that industry insiders would be
“vulnerable to retaliation, i.e. loss of employment, loss of
business and legal action,” if HUD were forced to disclose
their identities. Jackson stated that when she speaks before
industry groups, she reminds industry insiders of HUD’s
policy of confidentiality.

The district court entered summary judgment in favor of
HUD, holding that the redacted information was protected
from disclosure under Exemption 6. Prudential Locations,
646 F. Supp. 2d at 1228. The court balanced the privacy
interest of the individuals whose names were redacted against
the public’s interest in disclosure. Id. at 1226. On the
privacy-interest side, the court found that complainants
reporting RESPA violations could be subject to retaliation.
Id. at 1226–27. On the public-interest side, the court found
that disclosure of the complainants’ identities would not
reveal significant and otherwise unavailable information
about HUD’s activities. Id. at 1227. The court also found
that Prudential provided no evidence indicating that the
identity of complainants would reveal any misconduct or bias
on the part of HUD. Id.

After initial argument in this case, we reversed the district
court, holding that HUD could not redact identifying
information under Exemption 6, absent an additional showing
8 PRUDENTIAL LOCATIONS LLC V. HUD

concerning the identity of the complainants and the privacy
interests that were likely to be infringed. Prudential
Locations LLC v. U.S. Dep’t of Housing & Urban Dev.,
648 F.3d 768 (9th Cir. 2011). On the government’s petition
for panel rehearing, we ordered the case reargued. We now
affirm.

B. Standard of Review

“[A] two-step standard of review applies to summary
judgment in FOIA cases. The court first determines under a
de novo standard whether an adequate factual basis exists to
support the district court’s decisions. If an adequate factual
basis exists, then the district court’s conclusions of fact are
reviewed for clear error, while legal rulings, including its
decision that a particular exemption applies, are reviewed de
novo.” Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th
Cir. 2008) (internal citations omitted).

C. Discussion

FOIA grants access to government archives for public
dissemination of “‘official information long shielded
unnecessarily from public view.’” Milner v. Dep’t of Navy,
131 S. Ct. 1259, 1262 (2011) (quoting EPA v. Mink, 410 U.S.
73, 80 (1973)). Under FOIA, an agency must make
government records available to the public upon a properly
made request. 5 U.S.C. § 552(a)(3)(A). However, the agency
need not disclose documents or information falling within any
of nine statutory exemptions. Id. § 552(b)(1)–(9). The
agency bears the burden of justifying the withholding of
information under an exemption. Id. § 552(a)(4)(B).
 PRUDENTIAL LOCATIONS LLC V. HUD 9

Exemption 6 allows an agency to withhold “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy.” Id. § 552(b)(6). We ask two questions in deciding
whether an agency has properly withheld records or
information under Exemption 6. First, we ask whether the
document qualifies under the heading of “personnel and
medical files and similar files.” Id. Second, we ask whether
production of the document, or information contained therein,
“would constitute a clearly unwarranted invasion of personal
privacy.” Id.; see, e.g., Elec. Frontier Found. v. Office of the
Dir. of Nat’l Intelligence, 639 F.3d 876, 886 (9th Cir. 2010);
Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1024 (9th Cir. 2008).

1. “Personnel and Medical Files and Similar Files”

Exemption 6 was “‘intended to cover detailed
Government records on an individual which can be identified
as applying to that individual.’” U.S. Dep’t of State v. Wash.
Post Co., 456 U.S. 595, 602 (1982) (quoting H.R. Rep. No.
89-1497, at 11, reprinted in 1966 U.S.C.C.A.N. 2418, 2428).
“Information unrelated to any particular person presumably
would not satisfy the threshold test.” Id. at 602 n.4. The
Supreme Court has concluded that the phrase “similar files”
in Exemption 6 has a “broad, rather than a narrow, meaning.”
Id. at 600. “Similar files” include files containing citizenship
information on specific individuals, id. at 602; reports on
interviews with Haitian nationals involuntarily returned to
Haiti, U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991);
a report analyzing an agency’s response to a wildfire, Forest
Serv. Emps., 524 F.3d at 1024; and an “Excelsior list” of
names and addresses of employees eligible to vote in a union
10 PRUDENTIAL LOCATIONS LLC V. HUD

representation election, Van Bourg, Allen, Weinberg & Roger
v. NLRB, 728 F.2d 1270, 1273 (9th Cir. 1984).

The district court in this case held that the 2003 Letter and
the 2008 Email are “similar files” within the meaning of
Exemption 6. Prudential Locations, 646 F. Supp. 2d at 1226.
We are skeptical that a communication sent by an individual
to a federal enforcement agency complaining about illegal
business activity is sufficiently “similar” to a “personnel or
medical . . . file” of that individual for the communication to
qualify under Exemption 6. We recognize that the district
court’s holding has out-of-circuit support. See, e.g., Lakin
Law Firm, P.C. v. Fed. Trade Comm’n, 352 F.3d 1122 (7th
Cir. 2003) (upholding redaction under Exemption 6 of
identities of individuals who complained to the FTC about
illegal business activity); Strout v. U.S. Parole Comm’n,
40 F.3d 136 (6th Cir. 1994) (upholding redaction under
Exemption 6 of identity of individuals who wrote to the
Parole Commission opposing Strout’s parole). Indeed, our
own circuit’s decision in Forest Service Employees,
upholding redaction of employees’ names from a report on a
forest fire prepared by the Forest Service, provides some
support for the district court’s holding. See 524 F.3d at 1024.

Prudential has not contested on appeal the holding that the
2003 Letter and 2008 Email are “similar files” under
Exemption 6. We therefore assume without deciding that the
2003 Letter and 2008 Email are “similar files” within the
meaning of Exemption 6. See Elec. Frontier Found.,
639 F.3d at 886 (analyzing under Exemption 6 redaction of
identities of lobbyists from communications sent by the
lobbyists to federal agencies in attempts to influence
legislation; noting that “this may be a closer question than the
government describes”; and assuming without deciding that
 PRUDENTIAL LOCATIONS LLC V. HUD 11

the communications were “similar files” in the absence of
objection by the requesting party).

2. “Clearly Unwarranted Invasion of Personal Privacy”

The second requirement under Exemption 6 is that
disclosure of the information “would constitute a clearly
unwarranted invasion of personal privacy.” § 552(b)(6). To
answer this question, “we must balance the privacy interest
protected by the exemptions against the public interest in
government openness that would be served by disclosure.”
Elec. Frontier Found., 639 F.3d at 886; see also Ray,
502 U.S. at 175.

(i) Cognizable Personal Privacy Interest

To withhold information under Exemption 6, an agency
must show that “some nontrivial privacy interest” is at stake.
U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 501 (1994). If
only a trivial privacy interest is implicated, then Exemption
6 cannot apply. But if there is a “nontrivial privacy interest,”
then the agency must balance the individual’s interest in
personal privacy against the public’s interest in disclosure.
See Forest Serv. Emps., 524 F.3d at 1027 (“‘[S]ome
nontrivial privacy interest’ is sufficient to justify the
withholding of information under Exemption 6 unless the
public interest in disclosure is sufficient to outweigh it.”
(emphasis omitted)); Multi Ag Media LLC v. Dep’t of Agric.,
515 F.3d 1224, 1229–30 (D.C. Cir. 2008) (once a court finds
“anything greater than a de minimis privacy interest,” it must
then address “whether the public interest in disclosure
outweighs the individual privacy concerns” (internal
quotation marks omitted)).
12 PRUDENTIAL LOCATIONS LLC V. HUD

A broad range of personal privacy interests are cognizable
under FOIA, including under Exemption 6. The Court has
emphatically rejected a “cramped notion of personal privacy.”
U.S. Dept. of Justice v. Reporters Comm. for Freedom of
Press, 489 U.S. 749, 763 (1989). Individuals not only have
an obvious privacy interest in being free from retaliation,
harassment, embarrassment, or stigma. Ray, 502 U.S. at
176–77; Forest Serv. Emps., 524 F.3d at 1026. They also
have a privacy interest in simply “keeping personal facts
away from the public eye.” Reporters Comm., 489 U.S. at
769. “[P]rivacy encompass[es] the individual’s control of
information concerning his or her person.” Id. at 763.

In Ray, the Supreme Court held that Exemption 6 allowed
the State Department to redact the names of Haitian nationals
interviewed by the agency after they were involuntarily
returned to Haiti. Ray, 502 U.S. at 171. The Court noted that
disclosure of the identities of those who cooperated with the
State Department investigation “could subject them or their
families to embarrassment in their social and community
relationships.” Id. at 176 (internal quotation marks omitted).
The Court gave “great weight” to the interviewees’ privacy
interest in being free “from any retaliatory action that might
result from a renewed interest in their aborted attempts to
emigrate,” even though it was “impossible to measure” the
danger of retaliation or other mistreatment. Id. at 176–77.
The Court emphasized that the interviewees “might have been
willing to discuss private matters that he or she would not
otherwise expose to the public” because they had secured an
“assurance of confidentiality.” Id. at 177.

Our court has also upheld the non-disclosure of
identifying information under Exemption 6. In Forest
Service Employees, a “public interest watchdog organization”
 PRUDENTIAL LOCATIONS LLC V. HUD 13

requested release of a report prepared by the U.S. Forest
Service. 524 F.3d at 1023. The report contained a detailed
narrative of the Service’s heavily criticized response to a
wildfire, and it concluded that the response contributed to the
fire. Id. The Service released the report but redacted under
Exemption 6 the names of its low- and mid-level employees
identified in the report. Id. at 1023, 1026. We held that the
redactions were justified under Exemption 6, recognizing as
cognizable privacy interests the “potential for harassment,”
“embarrassment,” and “stigma” that would arise from public
association with the incident. Id. at 1026. Among other
things, we noted that the plaintiff organization planned to
contact the employees once their identities were disclosed,
and that the media and others would likely contact the
employees as well. Id.

Similarly, in Lahr v. National Transportation Safety
Board, 569 F.3d 964 (9th Cir. 2009), the National
Transportation Safety Board released documents obtained
during an investigation of the midair explosion of TWA
Flight 800, but redacted under Exemptions 6 and 7(C) the
names of eyewitnesses and investigating officers. We wrote
that “protection from [unwanted contact by third parties]
facilitated by disclosure of a connection to government
operations and investigations is a cognizable privacy interest
under Exemptions 6 and 7(C).” Id. at 976. Relying on Forest
Service Employees, we held that the identities of both the
eyewitnesses and FBI investigators were protected from
disclosure. Id. at 976–78.

In some of these cases, the affected individuals had
received an assurance of confidentiality from the government.
Such an assurance is neither a necessary, nor a necessarily
sufficient, condition for the existence of a cognizable
14 PRUDENTIAL LOCATIONS LLC V. HUD

personal privacy interest under Exemption 6. See Ray,
502 U.S. at 177. But as the Court made clear in Ray, such an
assurance is a relevant factor. See id. Here, the affidavit of
HUD official Jackson tells us that HUD has a publicly
announced policy of preserving the confidentiality of
individuals who complain to the agency about violators of
RESPA. We recognize that only the author of the 2008 Email
specifically requested anonymity. But in light of the repeated
public pronouncements of HUD’s confidentiality policy, we
conclude that the authors of both the 2003 Letter and 2008
Email had reasonable expectations that HUD would protect
their confidentiality even without a specific request that it do
so.

Given the circumstances of this case, we conclude that the
authors of the 2003 Letter and 2008 Email have cognizable
personal privacy interests under Exemption 6.

(ii) Personal Privacy Interest and Public Interest in
Disclosure

To determine whether releasing the identities of the
authors of the letter and email “would constitute a clearly
unwarranted invasion of personal privacy,” we balance the
interest in personal privacy against the public interest in
disclosure. In performing that balancing, we “may properly
discount . . . the probability” of an invasion of personal
privacy. Dep’t of Air Force v. Rose, 425 U.S. 352, 380
(1976). But the invasion of a personal privacy interest may
be “clearly unwarranted” even when the invasion of privacy
is far from a certainty, as demonstrated by two recent cases.
In Lahr, we upheld the application of Exemption 6 to protect
the identities of eyewitnesses to the explosion of TWA Flight
800 when there was a “potential for unwanted contact by
 PRUDENTIAL LOCATIONS LLC V. HUD 15

third parties, including the plaintiff [an individual interested
in the cause of the explosion], media entities, and commercial
solicitors.” Lahr, 569 F.3d at 975 (emphasis added).
Similarly, in Forest Service Employees, we upheld the
application of Exemption 6 because of the “potential for
harassment” by “the media, curious neighbors, and [the
plaintiff organization],” and because releasing the employees’
identities “may also subject them to embarrassment and
stigma.” Forest Serv. Emps., 524 F.3d at 1026 (emphasis
added).

The district court concluded that revealing the identities
of the authors of the 2003 Letter and 2008 Email would likely
invade the authors’ privacy interests. Prudential Locations,
646 F. Supp. 2d at 1226–27. We agree with that conclusion.
The authors of the two communications could easily be
adversely affected if their identities become known. Given
the nature of their communications, they appear to have
inside knowledge of the mortgage industry in Hawai’i. HUD
official Jackson stated that the agency promises anonymity to
industry insiders who report suspected wrongdoing because
of their vulnerability to retaliation such as loss of
employment or loss of business. The district court noted in
its opinion that Prudential had “mention[ed] the possibility of
a civil lawsuit against the unidentified individuals for their
‘sham’ complaints.” Prudential Locations, 646 F. Supp. 2d
at 1225. Prudential went to the expense not only to make a
FOIA request for HUD’s records from the two investigations.
When it received what appear to be all relevant documents,
with only the identities of the authors of the 2003 Letter and
2008 Email redacted, Prudential then also went to the
additional expense of filing a federal suit and pursuing an
appeal with the sole aim of identifying the authors. Under
these circumstances, we conclude that there is a significant
16 PRUDENTIAL LOCATIONS LLC V. HUD

risk of harassment, retaliation, stigma, or embarrassment of
the authors if their identities are revealed. See Ray, 502 U.S.
at 176–77; Forest Serv. Emps., 524 F.3d at 1026.

Against the authors’ privacy interest, we weigh the public
interest in disclosure of their names. The Court has narrowly
defined the public interest that is cognizable in a FOIA
balancing: “[T]he only relevant public interest in the FOIA
balancing analysis [is] the extent to which disclosure of the
information sought would ‘she[d] light on an agency’s
performance of its statutory duties’ or otherwise let citizens
know ‘what their government is up to.’” Dep’t of Def.,
510 U.S. at 497 (1994) (quoting Reporters Comm., 489 U.S.
at 773) (second alteration in original). Revealing the identity
of a private individual does not further the public interest
unless it casts light on the conduct of the government:

Official information that sheds light on an
agency’s performance of its statutory duties
falls squarely within [FOIA’s] statutory
purpose. 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.

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

Prudential has not shown that learning the identities of
those who wrote the letter or the email would add
significantly to the already available information concerning
the manner in which HUD has performed its statutory duties.
Prudential has made no allegation, and has presented no
evidence, that HUD performed either of the two
 PRUDENTIAL LOCATIONS LLC V. HUD 17

investigations improperly or inefficiently. Prudential does
not contend that HUD’s finding in the first investigation that
Prudential had violated RESPA by awarding prizes for
steering business to its jointly owned business was improper;
nor does Prudential contend that the $48,000 fine, paid in
settlement, was excessive in light of its violation of the law.
Prudential also does not contend that HUD acted improperly
or inefficiently in conducting the second investigation, at the
end of which HUD concluded that the author’s allegation of
wrongdoing by Prudential could not be substantiated.

This case is quite different from Electronic Frontier
Foundation, in which we held that there was a substantial
public interest in learning the identities of lobbyists who had
communicated with the executive branch in an attempt to
influence legislation. The lobbyists had sought legislation
that would provide retroactive protection from liability for
telecommunications carriers that had cooperated with the
government in conducting “a warrantless, electronic
surveillance program on millions of American telephones.”
Elec. Frontier Found., 639 F.3d at 879. We wrote:

There is a clear public interest in public
knowledge of the methods through which
well-connected corporate lobbyists wield their
influence. . . . With knowledge of the
lobbyists’ identities, the public will be able to
determine how the Executive Branch used
advice from particular individuals and
corporations in reaching its own policy
decisions. . . . In short, we find the public
interest in “government openness that would
be served by disclosure” of how the
government makes decisions potentially
18 PRUDENTIAL LOCATIONS LLC V. HUD

shielding firms lobbying (and donating to
campaigns) from nine-figure liabilities to be
plainly important.

Id. at 887–88. Here, the authors did not seek to influence
legislation or to change any substantive policy. Instead, they
alleged violations of an existing federal statute in
communications to the federal agency charged with enforcing
that statute.

There is nothing in the texts of the 2003 Letter or the
2008 Email, or in the actions of HUD in investigating the
allegations of statutory violations, to suggest that knowledge
of the identities of the authors would significantly “shed light
on an agency’s performance of its statutory duties or
otherwise let citizens know what their government is up to.”
Dep’t of Def., 510 U.S. at 497 (internal quotation marks and
alteration omitted). We therefore conclude that no public
policy cognizable under Exemption 6 would be served by
revealing their identities.

Because the authors of the communications have
cognizable personal privacy interests in maintaining their
anonymity, and because there is no cognizable public policy
interest that would be served by revealing their identities,
we hold that revealing their identities “would constitute a
clearly unwarranted invasion of personal privacy” under
Exemption 6.

3. Exemption 7(D) and Landano

Prudential argues that the foregoing analysis makes
Exemption 7 “superfluous,” and undercuts the Supreme
Court’s interpretation of Exemption 7(D) in United States
 PRUDENTIAL LOCATIONS LLC V. HUD 19

Department of Justice v. Landano, 508 U.S. 165 (1993). We
disagree.

Exemption 7 applies to “records or information compiled
for law enforcement purposes.” 5 U.S.C. § 552(b)(7). Such
records are exempt from a FOIA request, but only if they
satisfy the criteria of at least one of six subcategories of
Exemption 7 — Exemptions 7(A) through 7(F). Exemption
7(D) provides that a law enforcement record need not be
released if it “could reasonably be expected to disclose the
identity of a confidential source.” Id. § 552(b)(7)(D). In
Landano, the Court established the criteria by which a law
enforcement “source” can qualify as “confidential” within the
meaning of Exemption 7(D). See Landano, 508 U.S. at
179–80.

Prudential argues, though a little obliquely, that the 2003
Letter and 2008 Email are “records or information compiled
for law enforcement purposes” within the meaning of
Exemption 7, and that the authors of the 2003 Letter and the
2008 Email do not qualify as “confidential source[s]” under
Exemption 7(D). It then argues that if the identities of the
authors are protected under Exemption 6, without any
requirement that the authors satisfy the criteria for a
“confidential source” contained in Exemption 7(D),
Exemption 6 offers an end run around the more stringent
requirements of Exemption 7. We see no basis to conclude
that the application of Exemption 6 in this case undercuts or
is inconsistent with Exemption 7.

Exemption 7 operates differently from Exemption 6.
Under Exemption 7(D), if an individual satisfies the criteria
for a “confidential source,” then the “record[] or information
compiled for law enforcement purposes” need not be
20 PRUDENTIAL LOCATIONS LLC V. HUD

released. § 552(b)(7)(D). If the individual is a “confidential
source,” that is the end of the matter; there is no need to
balance the individual’s privacy interest against the public
interest in disclosure, as is required under Exemption 6.
However, if the individual does not satisfy the criteria for a
“confidential source,” he or she may nonetheless be protected
under some other subcategory of Exemption 7. The
subcategory most relevant to our case is Exemption 7(C),
which exempts “records or information compiled for law
enforcement purposes” if their disclosure “could reasonably
be expected to constitute an unwarranted invasion of personal
privacy.” Id. § 552(b)(7)(C).

We are willing to assume that the 2003 Letter and 2008
Email are “records or information compiled for law
enforcement purposes” within the meaning of Exemption 7.
If HUD had characterized them as such and had relied on
Exemption 7(C) to exempt them from release, we would
balance the authors’ privacy interests against the public
interest in disclosure, much as we have just done under
Exemption 6. What Prudential fails to recognize is that
Exemption 7(C) is more protective of privacy than Exemption
6. As the Supreme Court noted in Reporters Committee,
“Exemption 7(C)’s privacy language is broader than the
comparable language in Exemption 6 in two respects.”
489 U.S. at 756. First, Exemption 6 requires that the invasion
of privacy be “clearly unwarranted,” whereas Exemption 7(C)
requires only that the invasion be “unwarranted.” Second,
Exemption 6 requires a disclosure that “would constitute” an
invasion of privacy, whereas Exemption 7(C) requires only
that a disclosure “could reasonably be expected to constitute”
an invasion of privacy. However, because HUD has chosen
to rely on Exemption 6 rather than Exemption 7(C), we need
 PRUDENTIAL LOCATIONS LLC V. HUD 21

not examine whether the 2003 Letter and the 2008 Email
would also be protected under Exemption 7(C).

Conclusion

For the foregoing reasons, we conclude that HUD
properly withheld the identities of the authors of the 2003
Letter and the 2008 Email. We therefore affirm the district
court.

AFFIRMED.

BERZON, Circuit Judge, dissenting:

The Freedom of Information Act (“FOIA”) establishes a
strong default rule: Government must disclose information in
its possession unless it invokes, at its discretion, one of nine
narrow exemptions. See, e.g., U.S. Dep’t of Def. v. FLRA,
510 U.S. 487, 494 (1994) (citing U.S. Dep’t of Air Force v.
Rose, 425 U.S. 352, 360–61 (1976)); see also 5 U.S.C.
§ 552(b)(1)–(9) (enumerating exemptions). Here, HUD has
invoked only Exemption 6, which authorizes withholding
“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). Applying that
exemption requires balancing the personal privacy interests
it protects “against the public interest in government
openness that would be served by disclosure.” Lahr v. Nat’l
Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009).

The majority identifies a personal privacy interest which
may not exist, and then weighs the public interest in
22 PRUDENTIAL LOCATIONS LLC V. HUD

disclosure too lightly. And it does both in the name of
reducing the government’s burden in complying with the law,
a concern with no application here. I dissent.

I.

Were it up to me, I would do what we did in our original
resolution of this case—remand to the district court for
further factual development. See Prudential Locations LLC
v. U.S. Dep’t of Housing & Urban Dev., 648 F.3d 768,
778–79 (9th Cir. 2011), vacated and rehearing granted,
665 F.3d 1379 (9th Cir. 2012). The present record is
inadequate to confirm the existence of any personal privacy
interest, let alone to balance it against the public interest in
naming those informants whose tips our government deems
credible enough to merit investigation.

A.

1. Exemption 6 applies only where some “personal
privacy” interest is at stake. See Rose, 425 U.S. at 371, 375
n.14. A “‘nontrivial privacy interest’” can be enough to
trigger further analysis under the exemption. See Forest Serv.
Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021,
1026–27 (9th Cir. 2008) (quoting FLRA, 510 U.S. at 501).
But if no nontrivial privacy interest is in jeopardy, then FOIA
requires disclosure. See Multi Ag Media LLC v. Dep’t of
Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008).

A nontrivial privacy interest does not exist merely
because the government asserts it. Rather, FOIA’s “strong
presumption in favor of disclosure places the burden on the
agency to justify the withholding of any requested
documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
 PRUDENTIAL LOCATIONS LLC V. HUD 23

(1991); Maricopa Audubon Soc’y v. U.S. Forest Serv.,
108 F.3d 1089, 1092 (9th Cir. 1997); 5 U.S.C. § 552(a)(4)(B).
Like all parties on summary judgment, the government must
adduce specific evidence to carry its burden. See Fed. R. Civ.
P. 56(c).

The government in this case has submitted no evidence
whatever concerning the relevant circumstances or privacy
concerns of the individuals who filed the complaints of
wrongdoing with HUD. In the face of this vacuum, the
majority in effect holds that the government carries its burden
of demonstrating a nontrivial privacy interest simply by
specifying that the individual whose name is being withheld
reported alleged wrongdoing to a government official. FOIA
Exemption 6 requires more.

Exemption 6 provides protection for “personal privacy.”
5 U.S.C. § 552(b)(6) (emphasis added). The case law gives
effect, as it must,1 to the “personal” modifier, requiring the
government to demonstrate either that disclosure of an
individual’s name would be linked with personal details
about his life or that disclosure would subject an individual to
harassment in his personal life.

In United States Department of State v. Ray, for example,
the Court invoked both of these circumstances in approving
withholding the names of involuntarily repatriated Haitians
interviewed pursuant to a State Department investigation.
Ray, 502 U.S. at 175–76. It noted that “highly personal

1
“‘We have long followed the principle that ‘[s]tatutes should not be
construed to make surplusage of any provision.’” Local Joint Exec. Bd.
of Las Vegas v. NLRB, 657 F.3d 865, 675–76 (9th Cir. 2011) (quoting Nw.
Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996)).
24 PRUDENTIAL LOCATIONS LLC V. HUD

information regarding marital and employment status,
children, living conditions and attempts to enter the United
States, would be linked publicly with particular, named
individuals.” Id. In addition, the Court highlighted the
danger that Haitians cooperating with the State Department
investigation might be subject to retaliatory action for
illegally departing Haiti, or that interviewees would be
embarrassed “in their social and community relationships.”
Id. at 176.

Our cases, too, are consistent with this understanding of
Exemption 6’s requirement of “personal” exposure or
harassment. Forest Service Employees, for example,
permitted the application of Exemption 6 to the names of
low-level federal employees because they could personally be
subject to “embarrassment and stigma” or “harassment” by
litigants and media. 524 F.3d at 1026. Similarly, Lahr
affirmed the application of Exemptions 6 and 7(C) where
disclosing the names of eyewitnesses to an accident could
expose them to “undesired contact[]” by litigants and media.
569 F.3d at 975–77.
 PRUDENTIAL LOCATIONS LLC V. HUD 25

The majority purports to rely on these cases.2 But none of
them upheld application of Exemption 6 solely because the
identified individuals provided information to the
government. In each case, the government revealed more
than that about the circumstances of those individuals whose
names the government sought to withhold. And it was that
additional information that established the danger of exposure

2
I agree with the majority that treating files such as those in this case,
Forest Employees, and Lahr as “similar files” for the purpose of
Exemption 6 is problematic, and add some additional reasons why that is
so. Maj. Op. 10–11.

First, the grammatical “rule of the last antecedent” compels a narrow
construction of “similar files.” Under that rule, a relative pronoun refers
to the nearest reasonable antecedent. See, e.g., Barnhart v. Thomas,
540 U.S. 20, 26–27 (2003); Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 144–46 (2012). Here, the relative
pronoun “which” attaches only to “similar files”—not “personnel and
medical files”—and describes how the relevant files must be “similar” to
personnel or medical materials. That description thus indicates that
disclosure of the files as a whole (although not every record in the files)
must, like the disclosure of personnel and medical files, entail a “clearly
unwarranted invasion of personal privacy.”

Second, application of the familiar ejusdem generis canon also
suggests that the catch-all term—“similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal
privacy”—should be “‘construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words.’” Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (quoting 2A N.
Singer, Sutherland on Statutes and Statutory Construction § 47.17
(1991)). “[P]ersonnel and medical files” are, by definition, about
individuals and their personal lives—their bodies, their families, their
financial circumstances, their criminal and disciplinary records, if any.
“Similar files” ought to carry a parallel meaning, and so not reach files
that are about the wrongdoing of other people and contain no such
personal data about the informant.
26 PRUDENTIAL LOCATIONS LLC V. HUD

of personal information or of harassment in the informants’
personal lives.

Ray, 502 U.S. at 176, for example, concerned the identity
and personal information of repatriated Haitian emigrants
potentially vulnerable to government persecution in Haiti for
having unlawfully fled the country. Forest Service
Employees, 524 F.3d at 1026, concerned low-level
government employees, some of whom were associated with
serious allegations of misconduct as to themselves, in the
context of pending litigation and much public uproar. And
Lahr, 569 F.3d at 975–77, concerned bystander eyewitnesses
and investigators of an infamous plane crash, whom the
plaintiff expressly wished to contact against the backdrop of
substantial media attention. Such additional details—not the
bald claim that the identified individuals provided
information to the government—established the existence of
a personal privacy interest. Moreover, in each of these
instances, the underlying investigation, about which the
plaintiffs sought records, had been triggered by the
government. For that reason, the information sought was
“personal” in the sense that it concerned individuals who had
not voluntarily entered the public sphere with regard to the
information collected by the government.

The majority’s opinion thus breaks new ground by finding
in the names of voluntary government informants a per se
personal privacy interest. Still worse, the majority’s per se
rule departs from statute as well as precedent, because it does
nothing to verify that the purported privacy interest protected
by nondisclosure is personal in nature.

The majority’s rule would see a cognizable “personal
privacy” interest in any informant’s name, without more.
 PRUDENTIAL LOCATIONS LLC V. HUD 27

“Personal privacy” under Exemption 6 is not so broad.
Disclosure of the names of those providing information to the
government is not “inherently and always a significant threat
to the privacy of the [named] individuals.” Ray, 502 U.S. at
176 n.12. To be sure, an informant’s name refers to his
person and is in that narrow sense “personal.” But
“‘[p]ersonal’ in the phrase ‘personal privacy’ conveys more
than just ‘of a person.’ It suggests a type of privacy evocative
of human concerns.” FCC v. AT & T, Inc., 131 S. Ct. 1177,
1183 (2011).

In some circumstances, revelation of an informant’s name
does not raise the “human concerns” evoked by the term
“personal privacy.” Consider, for example, the business
executive accusing his competitor of lawbreaking. Such an
informant acts on behalf of the business that employs him.
And business concerns rarely qualify as “human concerns” of
the sort encompassed by “personal privacy.” “[W]e often use
the word ‘personal’ to mean precisely the opposite of
business-related: We speak of personal expenses and
business expenses, personal life and work life . . . .” Id. at
1182 (emphasis in original).

For example, Electronic Frontier Foundation v. Office of
the Director of National Intelligence, 639 F.3d 876, 888 (9th
Cir. 2010), which required the government to disclose the
names of business lobbyists, minimized almost to the point of
non-existence the notion that there was any “personal
privacy” interest in the “nature of their employment.” There,
we reasoned that “government acknowledgment of a
lobbyist’s lobbying activities does not reveal sensitive
personal information about the individual rising to a clearly
unwarranted invasion of personal privacy.” Id. (internal
quotation marks omitted); see also Wash. Post Co. v. U.S.
28 PRUDENTIAL LOCATIONS LLC V. HUD

Dep’t of Justice, 863 F.2d 96, 100 (D.C. Cir. 1988)
(“Information relating to business judgments and
relationships does not qualify” as a personal privacy interests
under Exemption 7(C), “even if disclosure might tarnish
someone’s professional reputation.”). Similarly, if one firm,
acting through an officer or other agent, retaliates in the
marketplace against another for blowing the whistle, I see no
invasion of personal privacy.

Nor is there necessarily a nontrivial personal privacy
interest in the name of a senior government official when
such an official acts as an informant. True, “‘individuals do
not waive all privacy interests in information relating to them
simply by taking an oath of public office.’” Lahr, 569 F.3d
at 977 (quoting Lissner v. U.S. Customs Serv., 241 F.3d 1220,
1223 (9th Cir. 2001)). But the personal privacy interests of
senior officials are especially attenuated. Lahr, 569 F.3d at
977 (citing Dobronski v. FCC, 17 F.3d 275, 280 n.4 (9th Cir.
1994)). Where such a senior official voluntarily submits
information to the government to trigger a governmental
investigation, his affirmative act may further weaken any
putative privacy interest in his name. See Elec. Frontier
Found., 639 F.3d at 887–89 (noting that voluntary submission
of information intended to affect public policy minimizes an
informant’s privacy interest). In an appropriate case, a court
could well determine that such a senior government official
possesses, at best, a trivial personal privacy interest in
withholding his name.

Nor, in the particular circumstances of this case, are there
any obvious personal privacy interests jeopardized by the
disclosure of an informant’s name if the informant is wholly
unaffiliated with either Prudential or the real estate industry.
Such an unrelated informant is not especially vulnerable to
 PRUDENTIAL LOCATIONS LLC V. HUD 29

retaliation or harassment from his employer, co-workers, or
friends, as might be true if he worked for Prudential or a
related firm. For this reason, too, a privacy interest put in
danger “more palpable than [a] mere possibilit[y]” would
need to be identified. Rose, 425 U.S. at 380 n.19.

2. The majority sidesteps these concerns with
unwarranted conjecture. “Given the nature of [the
informants’] communications,” the majority speculates, “they
appear to have inside knowledge of the mortgage industry in
Hawai’i.” Maj. Op. 15 (emphasis added). Inferences of this
variety cannot carry the day in the present context. This is an
appeal from the grant of summary judgment against
Prudential, so “[w]e draw all reasonable inferences in the
light most favorable to the non-moving party.” Corns v.
Laborers Int’l Union of N. Am., 709 F.3d 901, 907 (9th Cir.
2013). “Appearance” seems to be another word for inference,
yet other inferences—such as the inference that the
information came from a disgruntled former customer—are
also possible.

Even were it otherwise proper, the majority’s inference
would remain unreasonable. These informants purported to
draw their facts from a newspaper article and a conversation
with a Prudential employee, respectively—hardly the stuff of
“inside knowledge.”

The majority continues by suggesting that Prudential
itself may harass, retaliate against, stigmatize, or embarrass
the informants. After all, the majority hints, Prudential went
to the expense of filing a FOIA request and, when it was
dissatisfied with HUD’s response, initiated a lawsuit that it
has carried through appeal. Maj. Op. 15. Once again, the
inference of malice that the majority draws from this
30 PRUDENTIAL LOCATIONS LLC V. HUD

litigation history is not its to make. This Court may only take
judicial notice of “a fact that is not subject to reasonable
dispute.” Fed. R. Evid. 201(b). And Prudential’s motivations
for pursuing its legal options are reasonably disputable. It
may, for example, wish to lobby HUD to improve its
complaint screening process to weed out non-credible
informants. Or it may wish to improve its own internal
confidentiality policies.

My point is not that these alternative inferences are
compelled by the record, or even that they are more
reasonable than the majority’s inferences. Rather, the
reasonable possibility of such motivations renders the
majority’s preferred interpretation “subject to reasonable
dispute” and hence beyond the scope of its authority in
reviewing a summary judgment record as barren as this one.3

3. In sum, there can be no per se rule that those who
provide information about the alleged wrongdoing of others
have a personal privacy interest in their identity subject to a
threat “more palpable than [a] mere possibilit[y],” Rose,
425 U.S. at 380 n.19. Because the record in this case leaves
us speculating about the personal privacy interests of the

3
The majority’s attempts to shore up its inference by observing that the
district court opinion noted that Prudential had “mention[ed] the
possibility of a civil lawsuit against the unidentified individuals for their
‘sham’ complaints.” Maj. Op. 15. Any such “mention,” however, appears
nowhere in the record. Rather, the district court misinterpreted one of
Prudential’s legal arguments—that public policy does not protect those
who file unsupported complaints with the government—as a statement of
Prudential’s intentions. In any case, HUD does not rely on the district
court’s unsupported finding on appeal. The majority should not do so,
either.
 PRUDENTIAL LOCATIONS LLC V. HUD 31

informants, I would remand to the district court to develop
the record.

Moreover, even if we could infer from the absence of a
record—which we cannot—that there is some nontrivial
privacy interest on the part of the informants, we have no clue
what it is. Once a nontrivial privacy interest is established,
the next stage of the analysis is to evaluate whether invasion
of that interest is “clearly unwarranted” by the countervailing
public interest in disclosure. See Lahr, 569 F.3d at 973.
Executing that balancing analysis requires knowing
something about the nature and strength of the privacy
interest at stake. We cannot balance a personal privacy
interest whose measure we have yet to take.

B.

Not only is the majority’s understanding of “personal
privacy” interests too broad, its account of the public policy
interests protected by disclosure is too narrow. The majority
unnecessarily constricts its inquiry by focusing only on a
public interest in exposing government impropriety or
inefficiency. It fails to acknowledge, let alone reject, the
broader public interest that Prudential advances.

As the majority correctly notes, only a disclosure that
“would ‘she[d] light on an agency’s performance of its
statutory duties’ or otherwise let citizens know ‘what their
government is up to,’” qualifies as a cognizable public
interest under FOIA. FLRA, 510 U.S. at 497 (quoting U.S.
Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989)). But that does not mean, as
the majority’s analysis at some points suggests, that the
plaintiff must have demonstrated that the government’s
32 PRUDENTIAL LOCATIONS LLC V. HUD

behavior may have been improper or inefficient. “[P]ublic
understanding of the operations or activities of the
government,” Reporters Comm., 489 U.S. at 775, includes not
only exposure of government misfeasance, but also of
governmental effectiveness and other aspects of internal
agency functioning.4

Consider, for example, Reporters Committee, 489 U.S.
749. There, the Supreme Court held out Rose, 425 U.S. 352,
as an example of disclosure that advanced the public interest
in understanding the workings of government. That case,
Reporters Committee explained, required the disclosure of
Air Force Academy disciplinary-hearing summaries because
they “obviously contained information that would explain
how the disciplinary procedure actually functioned and
therefore were an appropriate subject of a FOIA request.”
Reporters Comm., 489 U.S. at 773. The interest was purely
informational; suspected government misfeasance had
nothing to do with it. Because the public interest in
disclosure is broader than the exposure of official
wrongdoing, the majority’s preoccupation with Prudential’s
failure to allege that “HUD performed either of the two
investigations improperly or inefficiently” is beside the point.
Maj. Op. 16–17.

4
See Cooper Cameron Corp. v. U.S. Dep’t of Labor, 280 F.3d 539, 548
(5th Cir. 2002) (“[T]here is a cognizable public interst in monitoring
agencies’ enforcement of the law . . . .”); Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 895 (D.C. Cir. 1995) (recognizing a
public interest in understanding the “‘privatization of government
functions,’” particularly law enforcement investigations); cf. Brock v.
Pierce Cnty., 476 U.S. 253, 262 (1986) (“[T]he protection of the public
fisc is a matter that is of interest to every citizen . . . .”).
 PRUDENTIAL LOCATIONS LLC V. HUD 33

On this more expansive view of the public interest in
knowing “what the government is up to,” Prudential did
explain how disclosure would advance the public knowledge
of HUD’s performance of its statutory duties: Prudential
argued that HUD’s operations “cannot be fully understood
without knowing who initiates or influences investigations.”
It articulated concern that HUD had initiated investigations
“based on accusations from potentially biased, self-interested,
or otherwise unreliable sources.”

Although the majority’s does not so state, this concern is
legitimate. Government investigations carry costs, burden the
public fisc, and divert resources from other potentially
meritorious activities. Meanwhile, targeted individuals and
entities are saddled with disruptive inquiries, the costs of
compliance, and, above all, tarnished reputations. See, e.g.,
Richard A. Bierschbach & Alex Stein, Overenforcement, 93
Geo. L.J. 1743, 1771–72 (2005) (collecting sources
concerning the “significant extralegal sanctions for the
defendants and their employees” associated with investigation
of corporate misfeasance or conviction). Agencies, and the
firms and individuals they investigate, will bear those costs
even when investigation does not support further prosecution.
Given the costs and collateral damage, the public is entitled
to know what tips its government deems sufficiently reliable
to merit investigation.5

5
I note that although Prudential is a business entity, government
agencies investigate many individuals for wrongdoing—for example,
taxpayers, social security and other benefit recipients, and alleged
undocumented immigrants. Undoubtedly, many of these investigations
are triggered by information voluntarily provided by members of the
public, for motives good and ill. The majority’s approach to this case
would presumably apply to such instances as well. That approach could
preclude, in the absence of allegations of misfeasance, the revelation of
34 PRUDENTIAL LOCATIONS LLC V. HUD

Fully evaluating reliability, in turn, usually requires
knowing an informant’s name. Reliability is generated by
features both external and internal to a statement. External
indicia of reliability relate to the identity of the informant.
Knowledge of an informant’s identity enables assessment
credibility, through what Florida v. J.L., 529 U.S. 266, 270
(2000), termed “reputation.” See Illinois v. Gates, 462 U.S.
213, 233–34 (1983) (noting that “an unquestionably honest
citizen” or an informant with a history of “unusual reliability”
would be especially credible). Where an informant is “known
. . . personally and had provided . . . information in the past,”
for example, his statement is more reliable than “an
anonymous telephone tip.” Adams v. Williams, 407 U.S. 143,
146 (1972). By contrast, internal indicia relate to the contents
of an informant’s statement—its measure of detail or the
evidentiary base on which it purports to rest. See Gates,
462 U.S. at 234 (noting that an “explicit and detailed
description of alleged wrongdoing, along with a statement
that the event was observed first-hand,” enhances a tip’s
credibility). Without more, however, “‘an anonymous tip
alone seldom demonstrates the informant’s basis of
knowledge or veracity.’” J.L., 529 U.S. at 270 (quoting
Alabama v. White, 496 U.S. 325, 329 (1990)). To be deemed
reliable, the statement must include independently verifiable
details, such as accurate prediction of a suspect’s future
behavior. See id. at 270–71; United States v. Morales,
252 F.3d 1070, 1076 (9th Cir. 2001) (reviewing cases
concerning anonymous tips). In other words, some external
validation is always needed; a statement cannot be considered
reliable without it. And the informant’s identity is almost
always the best way of providing such external validation.

information that might bring to light the criteria used to determine which
such informant-provided information is investigated and to what degree.
 PRUDENTIAL LOCATIONS LLC V. HUD 35

Thus, the “marginal additional usefulness,” Forest Serv.
Emps., 524 F.3d at 1027 (internal quotation marks omitted),
of knowing an informant’s name—that is, the degree to which
the informant’s name adds to one’s ability to assess
reliability—is substantial. And such a significant aid to the
evaluation of reliability must be taken into account in
determining whether an invasion of personal privacy is
“clearly unwarranted.” 5 U.S.C. § 552(b)(6) (emphasis
added).

In particular, the possibility of what Prudential calls
“biased” or “self-interested” tips enhances the public interest
in identifying informants. As noted, an investigation injures
its targets, even if it ultimately exonerates them. For this
reason, what children call “snitching” can be an effective way
to settle a personal score or gain a competitive advantage in
the marketplace.6 If an informant successfully triggers a
baseless investigation for personal gain, he will have put
government power to private purpose. That danger is
preeminently a public concern. Cf. Exxon Shipping Co.
v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th Cir. 1994)
(acknowledging, in the context of discovery requests arising
out of litigation to which the government was not party, “the
government’s serious and legitimate concern that its
employee resources not be commandeered into service by

6
These are hardly far-fetched possibilities. See, e.g., Portomene v.
United States, 221 F.2d 582, 583 (5th Cir. 1955) (describing an allegation
that “there was bad blood between [an informant] and the defendant, and
that this furnished the motive for [the informant’s] desiring to involve [the
defendant] by false charges that he had dealt in narcotics”); Medifast, Inc.
v. Minkow, No. 10-CV-382 JLS (BGS), 2011 WL 1157625, at *1 (S.D.
Cal. Mar. 29, 2011) (describing an alleged “series of coordinated attacks”
on a company, including accusations of regulatory violations, designed ‘to
increase the value of a short position’”).
36 PRUDENTIAL LOCATIONS LLC V. HUD

private litigants to the detriment of the smooth functioning of
government operations”). Such a danger, moreover, is
precisely the sort of potential corruption that the FOIA sought
to forestall by limiting secrecy.7 And knowing who alleges
illegality can be helpful in assessing the scope of such
possible corruption. Without names, the public is hampered
in evaluating the prevalence of self-interested informants or
the magnitude of their manipulation.

I do not understand the majority affirmatively to reject
these considerations, but instead to disregard them, evidently
as insufficiently raised. I disagree on the latter point. And I
expect that a future panel, adjudicating a case where such
concerns are fully articulated, will be attentive to the full
scope of the public interest in learning “what the government
is up to” in the processing of complaints by outside
informants.

7
FOIA ensures citizen oversight over the government, “a structural
necessity in a real democracy.” Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004). In the debate over the FOIA
amendments, legislators sometimes contrasted that commitment to
democratic oversight with “the unhappy consequences of the other
alternative,” playing out “behind the Iron Curtain.” 1 Freedom of
Information Act Source Book: Legislative Materials, Cases, Articles 78
(1974); see also id. at 83 (calling a “policy of secrecy . . . the cornerstone
of a totalitarian bureaucracy”). And behind the Iron Curtain, where
informing was widespread, informants often “snitched” on their rivals for
personal gain. See, e.g., Robert Gellately, Denunciations in Twentieth-
Century Germany: Aspects of Self-Policing in the Third Reich and the
German Democratic Republic, 68 J. Modern Hist. 931, 944–50, 956
(1996) (documenting the prevalence of informing for personal gain in
Nazi and communist Germany).
 PRUDENTIAL LOCATIONS LLC V. HUD 37

C.

Recognizing the public interest in disclosing informants’
names does not, by any means, preclude the application of
Exemption 6. Had HUD produced evidence (in camera, if
necessary) concerning its informants’ vulnerability to
retaliation, for example, that personal privacy interest might
well outweigh the public interest in disclosure, rendering
disclosure of the informants’ identities “clearly unwarranted.”

That is not, however, the balance struck by the majority.
To the contrary, it arrives at a balance unsupported by the
record: It assumes a personal privacy interest where there
may well be none, and it ignores countervailing interests that
go beyond governmental misconduct. Again, I would remand
for further development of the record.

II.

The majority’s treatment of this case is all the more
frustrating because it is unnecessary. The history of this case
establishes the background for understanding why: In our
initial resolution of the matter, we remanded for further
factual development as to the personal privacy interests of the
informants on the grounds articulated above, supra Part I.A.
Prudential Locations, 648 F.3d at 778–79. In a petition for
rehearing, however, the government complained that
demanding some evidence of a personal privacy interest
would burden its administration of the statute, and sought a
more deferential rule. In reversing course, today’s decision
would seem to have answered the government’s call. The
Supreme Court, however, has commanded us to refuse such
invitations to enervate FOIA. In any case, Congress has
38 PRUDENTIAL LOCATIONS LLC V. HUD

already provided less burdensome means for the government
to protect its informants.

A.

The premise of the government’s objection is sound
enough: The FOIA is a burden. See, e.g., Antonin Scalia,
The Freedom of Information Act Has No Clothes, Regulation,
Mar./Apr. 1982, at 15 (quipping that FOIA is “the Sistine
Chapel of cost-benefit analysis ignored”). In 2012 alone,
HUD fielded some 2,544 FOIA requests, which it processed
with the equivalent of over thirty staff members at an
aggregate cost of over $3 million (not counting litigation
expenses). U.S. Dep’t of Housing and Urban Dev., 2012
Annual FOIA Report, at 6, 18 (2012).

But these costs cannot be dismissed as useless
expenditures. Congress imposed them for a reason—to
“ensure an informed citizenry, vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed.” John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation
and quotation marks omitted). Consistent with the objective
of facilitating disclosure, the Supreme Court has repeatedly
commanded that FOIA’s exemptions are exclusive and
“‘narrowly construed.’” Milner v. U.S. Dep’t of Navy,
131 S. Ct. 1259, 1262 (2011) (quoting FBI v. Abramson,
456 U.S. 615, 630 (1982)); see also id. at 1265–66 (collecting
additional Supreme Court cases). Indeed, recent
jurisprudence has taken a sharply textual approach to
interpreting FOIA exemptions. See Peter L. Strauss et al.,
Gellhorn and Byse’s Administrative Law: Cases and
Comments 471 (11th ed. 2011) (citing, as examples, Milner,
131 S. Ct. 1259, and AT & T, 131 S. Ct. 1177).
 PRUDENTIAL LOCATIONS LLC V. HUD 39

This Court cannot relieve the government of the burden
that Congress expressly placed upon it. Although a per se
rule protecting the identify of government informants would
be simple to administer, “we are not free to engraft that
policy choice onto the statute that Congress passed.” U.S.
Dep’t of Justice v. Landano, 508 U.S. 165, 181 (1993). To
the contrary, Congress “created a scheme of categorical
exclusion; it did not invite a judicial weighing of the benefits
and evils of disclosure on a case-by-case basis.” Abramson,
456 U.S. at 631.

This Court should, of course, seek to develop “workable
rules” for the agencies to follow, Reporters Comm., 489 U.S.
at 779, but only within the confines of the exemptions
Congress created. Milner, for instance, rejected on textual
grounds a long-settled interpretation of Exemption 2, despite
the danger that disclosure might “wreak havoc and make
catastrophe more likely.” 131 S. Ct. at 1271 (internal
quotation marks and brackets omitted). The Court reasoned
that, if “Congress has not enacted the FOIA exemption the
Government desires,” or if the exemption that Congress
enacted proves unworkable, then the government—here,
HUD—may take its complaint to Congress. Id.

In any case, demanding some evidence with which a
reviewing court can substantiate and evaluate the nature and
magnitude of a putative personal privacy interest is not
especially burdensome. Take Landano: That case required
an agency invoking FOIA exemption 7(D) to protect the
identify of informants to “point to more narrowly defined
circumstances that will support” the application of that
exemption. Landano, 508 U.S. at 179. Such a
“particularized approach,” the Court held, “is consistent with
40 PRUDENTIAL LOCATIONS LLC V. HUD

Congress’ intent to provide workable rules of FOIA
disclosure.” Id. at 180 (internal quotation marks omitted).

I would require no more. Such evidence need not be
adduced via elaborate, costly procedures; affidavits that
“contain reasonably detailed descriptions of the documents
and allege facts sufficient to establish an exemption” suffice.
Bowen v. U.S. Food & Drug Admin., 925 F.2d 1225, 1227
(9th Cir. 1991). In those rare circumstances that such
affidavits would themselves compromise the identity of
informants, they may be reviewed in camera. Landano,
508 U.S. at 180.

B.

In addition, as the majority recognizes, Maj. Op. 19–20,
much of the difficulty the government has putatively
encountered in protecting the identity of voluntary
government informers under Exemption 6 is of its own
creation. FOIA includes a separate exemption expressly
designed to facilitate the protection of informants, but the
government did not invoke it here.

Exemption 7(D) authorizes withholding “records or
information compiled for law enforcement purposes, but only
to the extent” that disclosure “could reasonably be expected
to disclose the identity of a confidential source . . . .”
5 U.S.C. § 552(b)(7)(D) (emphasis added). “[A] source is
‘confidential,’” under this exemption, “if it ‘provided
information under an express assurance of confidentiality or
in circumstances from which such an assurance could be
reasonably inferred.’” Rosenfeld v. U.S. Dep’t of Justice,
57 F.3d 803, 814 (9th Cir. 1995) (quoting Landano, 508 U.S.
at 172). The exemption applies equally to the enforcement of
 PRUDENTIAL LOCATIONS LLC V. HUD 41

civil and criminal law. Church of Scientology Int’l v. IRS,
995 F.2d 916, 919 (9th Cir. 1993). Its application is not
contingent on the existence of a personal privacy interest in
nondisclosure, and does not require balancing that interest
against the interest in disclosure. To the contrary, Exemption
7(D) represents Congress’ own assessment of the appropriate
balance when it comes to informants.

HUD has not invoked that exemption here. Whether it
could sustain HUD’s nondisclosure of these informants’
names is thus a question for another day and another court.

The very existence of Exemption 7(D), however, strongly
implies that Exemption 6 applies quite narrowly, if at all, to
information concerning government informants. “‘[I]t is a
commonplace of statutory construction that the specific
governs the general.’ That is particularly true where, as
[here], ‘Congress has enacted a comprehensive scheme and
has deliberately targeted specific problems with specific
solutions.’” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 132 S. Ct. 2065, 2071 (2012) (quoting Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 384 (1992), and
Varity Corp. v. Howe, 516 U.S. 489, 519 (1996) (Thomas, J.,
dissenting)). Exemption 7(D) specifically applies to the
withholding of information provided by informants. And it,
unlike Exemption 6, sets a condition, requiring that any such
informant be assured that his identity will remain
confidential. Given this statutory scheme, Exemption
7(D)—not Exemption 6—ought to control the government’s
request to withhold information concerning its informants.8

8
The same point applies with even greater force to Exemption 7(C),
which the majority urges the government to invoke in the future. Maj. Op.
19–20. Exemption 7(C) is part of the very same subsection of FOIA as
42 PRUDENTIAL LOCATIONS LLC V. HUD

Moreover, HUD’s legitimate desire to withhold
informants’ identities can be readily accommodated by
implementing procedures to document HUD’s assurance that
informants’ names would be kept confidential. Where “the
Government has other tools at hand to shield” the information
it seeks to withhold, Milner, 131 S. Ct. at 1271, judicial
distortion of other of FOIA’s narrow exemptions, to avoid the
requirements of the most directly applicable one, is
unnecessary as well as illegitimate.

HUD, and other federal agencies, would be well advised
to restrict their invocation of FOIA exemptions for voluntary
informants to Exemption 7(D). Here, Prudential failed to
contest whether HUD’s correspondence with the informants
qualified as “similar files” within the meaning of Exemption
6. Future plaintiffs will be less reticent. Meanwhile, the
majority, while not rejecting their pertinence, does not weigh
in its analysis the full range of the public interests in
disclosure, seemingly on the ground of inadequate invocation.
Future litigants, I suspect, will be more specific in cases like
this one in articulating the public interests in disclosure, so
future panels will conduct a more complete balancing
analysis.

CONCLUSION

For all these reasons, I respectfully dissent.

Exemption 7(D), so the general/specific canon should have particular
force.