CEI Washington Bureau, Inc. v. Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2006 Decided November 21, 2006

No. 05-5446

CEI WASHINGTON BUREAU, INC.,
APPELLANT

v.

DEPARTMENT OF JUSTICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02651)

Michael Kovaka argued the cause for appellant. With him
on the briefs was Jonathan D. Hart.

Eric Fleisig-Greene, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Peter
D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Mark B. Stern,
Attorney.

Before: RANDOLPH, GARLAND and GRIFFITH, Circuit
Judges.

Opinion for the court filed PER CURIAM.
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PER CURIAM.

The Freedom of Information Act exempts from disclosure
“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), and law enforcement
records, the production of which “could reasonably be expected
to constitute an unwarranted invasion of personal privacy,” id.
§ 552(b)(7)(C). Invoking these exemptions, the Department of
Justice denied CEI Washington Bureau’s request for certain
records relating to the incarceration of illegal aliens. CEI has
appealed from the district court’s order granting the
Department’s motion for summary judgment and denying CEI’s
cross-motion for summary judgment. CEI Wash. Bureau Inc. v.
U.S. Dep’t of Justice, 404 F. Supp. 2d 172 (D.D.C. 2005). The
validity of the district court’s ruling turns on facts the parties
dispute. We hold that summary judgment therefore should not
have been granted.

The information CEI requested relates to the State Criminal
Alien Assistance Program (SCAAP). Under SCAAP, the
federal government reimburses states and localities for the costs
of incarcerating undocumented aliens convicted of at least one
felony or two misdemeanors. See BUREAU OF JUSTICE
ASSISTANCE, U.S. DEP’T OF JUSTICE, STATE CRIMINAL ALIEN
ASSISTANCE PROGRAM: FY 2005 GUIDELINES 8 (2005). States
and localities file reimbursement applications with the
Department’s Office of Justice Programs. For each
undocumented alien, the application must list the Alien
Registration Number, full name, date of birth, unique inmate
identifier, foreign country of birth, date taken into custody, date
released or to be released from custody, and FBI Number. See
id. at 9. CEI requested this data in order to report on the scope
and causes of what it saw as the federal government’s
dereliction in enforcing the deportation laws. The Department
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disclosed only the unique inmate identifier, foreign country of
birth, date taken into custody, and date released from custody for
each of the SCAAP records, to the extent the records contained
entries for such information. CEI Wash. Bureau, 404 F. Supp.
2d at 175 n.4. CEI’s lawsuit sought to compel the Department
to disclose the remaining fields.

Whether the Department properly applied the privacy
exemptions turns on a balance of “the individual’s right of
privacy against the basic policy of opening agency action to the
light of public scrutiny.” U.S. Dep’t of State v. Ray, 502 U.S.
164, 175 (1991) (internal quotation marks omitted). Against
CEI’s argument in favor of a public interest in monitoring the
federal government’s enforcement of the deportation laws, the
Department points to several privacy interests it claims the
disclosure would violate. Specifically, the disclosure of
inmates’ names, birth dates, and FBI and Alien Registration
numbers “has the potential to deeply embarrass a vast set of
individuals . . ..” Br. for Def.-Appellee 12. The SCAAP records
also apparently misidentify some individuals as undocumented
aliens. Id. at 14. The Department claims that the FBI and Alien
Registration numbers “provide a direct link to immigration and
law enforcement files that may contain sensitive and extremely
personal information” about the inmates. Id. at 22. As to CEI’s
argument that it requested data only on recent convictions and
thus would not infringe on any privacy interest in letting old
convictions fade from memory, see U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 769
(1989), the Department notes that SCAAP does not require that
convictions be recent, and that there is thus no guarantee that
only recent convictions would be disclosed in response to CEI’s
request. Br. for Def.-Appellee 16 n.3.

The parties dispute several facts material to these assertions.
According to the Department’s affidavit, there is a “possibility
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that, if the withheld information were released, certain
individuals would erroneously be identified as undocumented
aliens.” Lee Aff. ¶ 30. The Department was “advised by the
SCAAP program manager that it is not uncommon for [the
federal government] to determine that certain inmates listed by
an applicant jurisdiction are not in fact undocumented aliens.”
Id. At oral argument government counsel said that as many as
fifty percent of the inmates reported in the SCAAP records as
illegal aliens cannot be confirmed to be such. CEI’s brief claims
that the Department can redact the erroneous data, Br. of
Appellant 32; at oral argument CEI’s attorney said that the
Department already rigorously filters the SCAAP data to ensure
accuracy. A mistake in representing an inmate as an
undocumented alien may implicate privacy interests. The same
mistake may also reduce the interest in disclosure by
undermining the asserted value of the records for monitoring the
government’s enforcement of the deportation laws. The risk of
such mistakes is a fact that needs to be established before the
case can be resolved. Similarly, only at oral argument did the
parties discuss the processes by which one obtains an FBI or
Alien Registration number, how the numbers are used, and the
ways those numbers could lead to the disclosure of sensitive
information. CEI noted that Alien Registration Numbers are
available in online public databases. The Department claimed
that someone with an individual’s Alien Registration Number
could gain access to sensitive data from administrative
proceedings linked to the number. The Department also
suggested that one could find private data based on an
individual’s FBI Number by searching employment
applications. The accuracy of these factual assertions needs to
be determined before this court can decide whether the
Department properly invoked the privacy exemptions. While
we express no opinion on whether or to what extent the
Department’s assertions implicate privacy interests under the
FOIA exemptions, or, whether or to what extent the interest in
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disclosure outweighs any such interests, we conclude that
resolution of the case on summary judgment without affidavits
and evidentiary hearings sufficient to resolve the factual disputes
was error.

It is of no moment that the parties filed cross-motions for
summary judgment and that neither party explicitly argued that
there are genuine disputes about material facts. A cross-motion
for summary judgment does not concede the factual assertions
of the opposing motion. Sherwood v. Wash. Post, 871 F.2d
1144, 1147 n.4 (D.C. Cir. 1989). And the briefs and oral
argument of each party questioned the factual accuracy of the
other’s claims. Given these disputes, we are in no position to
decide the important questions this case presents. The district
court’s grant of the Department’s motion for summary judgment
is therefore vacated and the case is remanded for further
proceedings.

So ordered.