FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

⎫ELECTRONIC FRONTIER FOUNDATION,

Plaintiff-Appellee, No. 09-17235D.C. Nos.v.

3:08-cv-01023-JSW⎬OFFICE OF THE DIRECTOR OF 3:08-cv-02997-JSWNATIONAL INTELLIGENCE;OPINIONDEPARTMENT OF JUSTICE,

Defendants-Appellants. ⎭Appeal from the United States District Court

for the Northern District of CaliforniaJeffrey S. White, District Judge, Presiding

Argued and SubmittedJanuary 12, 2010—San Francisco, California

Filed February 9, 2010

Before: Myron H. Bright,* Michael Daly Hawkins, andMilan D. Smith, Jr., Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Myron H. Bright, Senior United States Circuit Judgefor the Eighth Circuit, sitting by designation.

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COUNSEL

Douglas N. Letter and Scott McIntosh, United States Depart-ment of Justice, Civil Division, Washington, D.C., for thedefendants-appellants.

Marcia Hofmann, San Francisco, California, for the plaintiff-appellee.

OPINION

HAWKINS, Circuit Judge:

In the wake of the September 11, 2001 terrorist attacks, thePresident authorized the National Security Agency (“NSA”)to conduct a warrantless, electronic surveillance program onmillions of American telephones. Numerous lawsuits haveclaimed the program was illegal and unconstitutional, e.g., Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190,1192-93 (9th Cir. 2007), including a consolidated action fordamages against allegedly cooperating telecommunicationsproviders, see In re NSA Telecomms. Records Litig., 633 F.Supp. 2d 949, 959 (N.D. Cal. 2009); see also U.S. Dep’t ofJustice, Office of Inspector Gen., A Review of the FederalBureau of Investigation’s Use of Exigent Letters and OtherInformal Requests for Telephone Records 20-25 (Jan. 2010)(describing three unnamed telecommunications carriers’

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cooperation with the FBI). The merits of those claims, how-ever, are not at issue here.

This case concerns the discussions between telecommuni-cations carriers (including their lobbyists and attorneys) andthe government, as the carriers sought retroactive liabilityprotection for any participation in the program. This appealconcerns the extent to which the public has the right to infor-mation about those discussions and related lobbying effortsunder the Freedom of Information Act (“FOIA”).

I. BACKGROUND

A. Enactment of the Foreign Intelligence SurveillanceAct Amendments

Efforts to provide liability protection for the providersbegan in 2007. In April of that year, as part of a broader dis-cussion of reforming electronic surveillance laws, the Depart-ment of Justice (“DOJ”) sent a legislative proposal toCongress, which included a provision creating retroactiveimmunity for telecommunications providers alleged to haveparticipated in the surveillance activities. In August 2007,Congress enacted the Protect America Act of 2007 (“PAA”),Pub. L. No. 110-55, 121 Stat. 552, a temporary measure,which did not include a liability shield.

Contemporaneously with the PAA debate, news organiza-tions such as The New York Times and Newsweek reported ona “campaign” involving “some of Washington’s most promi-nent lobbying and law firms”1 to pressure the Bush adminis-

1The Newsweek article included the following: Among those coordinating the industry’s effort are two well-connected capital players who both worked for President GeorgeH.W. Bush: Verizon general counsel William Barr, who servedas attorney general under 41, and AT&T senior executive vicepresident James Cicconi, who was the elder Bush’s deputy chiefof staff.

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tration to “quickly approve a measure wiping out all privatelawsuits against them for assisting” with the warrantless sur-veillance program. The news accounts highlighted the provid-ers’ “hidden role in the political battle,” and Newsweekclaimed Director of National Intelligence Mike McConnell(“McConnell”) had “raise[d] the stakes,” stating in a recentinterview that the lawsuits could “bankrupt these companies.”

Congress designed the PAA as a stopgap, and allowed it toexpire on February 16, 2008. One day before the PAA’s expi-ration, McConnell discussed the need for statutory protectionfor the carriers, stating in a TV interview, “The companies aretelling us if you can’t protect us, the cooperation you need isnot going to be there.” On February 23, DOJ and the Officeof the Director of National Intelligence (“ODNI”) issued ajoint press release noting the “private partners are cooperatingfor the time being,” but the government also expressed con-cern because the carriers “have indicated that they may welldiscontinue cooperation if the uncertainty [over their liabilityexposure] persists.” News reports claimed AT&T in factstopped cooperating with the government for six days afterthe expiration of the PAA. Similar reports indicated Verizonexpressed its concerns to the government but did not cease itsassistance.

Working with them are a battery of major D.C. lobbyists andlawyers who are providing “strategic advice” to the companies onthe issue, according to sources familiar with the campaign whoasked not to be identified talking about it. Among the players,these sources said: powerhouse Republican lobbyists CharlieBlack and Wayne Berman (who represent AT&T and Verizon,respectively), former GOP senator and U.S. ambassador to Ger-many Dan Coats (a lawyer at King & Spaulding who is represent-ing Sprint), former Democratic Party strategist and one-timeassistant secretary of State Tom Donilon (who represents Veri-zon), former deputy attorney general Jamie Gorelick (whose lawfirm also represents Verizon) and Brad Berenson, a former assis-tant White House counsel under President George W. Bush whonow represents AT&T.

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In July 2008, Congress passed, and the President signed,the Foreign Intelligence Surveillance Act of 1978 Amend-ments Act of 2008 (“FISA Amendments Act”), Pub. L. No.110-261, 122 Stat. 2436, updating FISA on a more permanentbasis than did the PAA. As their lobbyists had sought, the leg-islation included a liability shield for the carriers. Under TitleVIII of the Act, section 802, “Procedures for ImplementingStatutory Defenses,” established the immunity procedure.

Specifically, section 802 provided that “a civil action maynot lie or be maintained in a Federal or State court against anyperson for providing assistance to an element of the intelli-gence community, and shall be promptly dismissed,” so longas the Attorney General certified either that a defendant pro-vided assistance pursuant to a number of reasons, such ascourt order or presidential authorization, see § 802(a)(1)-(4),122 Stat. at 2468-69, or certified that “the person did not pro-vide the alleged assistance,” id. § 802(a)(5) (emphasis added).

B. EFF’s FOIA Requests

After passage of the PAA but before enactment of the FISAAmendments Act, the Electronic Frontier Foundation (“EFF”)made a FOIA request to ODNI and five DOJ components(together “Defendants” or “the government”),2 seeking allrecords from September 1, 2007, through December 21, 2007,concerning “briefing, discussions, or other exchanges” agencyofficials had with 1) members of Congress, and “2) represen-tatives or agents of telecommunications companies concern-ing amendments to FISA, including any discussion ofimmunizing telecommunications companies or holding themotherwise unaccountable for their role in government surveil-lance activities.” Elec. Frontier Found. v. Office of the Dir. of

2The five DOJ components were the Office of the Attorney General(“OAG”), the Office of Legislative Affairs (“OLA”), the Office of LegalPolicy (“OLP”), the Office of Legal Counsel (“OLC”), and DOJ’sNational Security Division (“NSD”).

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Nat’l Intelligence, 542 F. Supp. 2d 1181, 1184 (N.D. Cal.2008) (“EFF”).

Some four months later, EFF submitted a second round ofFOIA requests to the same agencies seeking “all agencyrecords” concerning briefings, discussions, or other exchangesbetween the agencies and “representatives or agents of tele-communications companies concerning amendments toFISA,” or shielding the companies from liability as a result oftheir cooperation with government surveillance activities.This round of FOIA requests also sought information regard-ing communications from the agencies to members of Con-gress or their staffs, as well as agency communications,regardless of subject matter, with a number of named, high-profile telecommunications industry employees and lobbyists.3

In both FOIA letters, EFF sought expedited processing oftheir requests. See 5 U.S.C. § 552(a)(6)(E)(v)(II) (2000), 32

3EFF’s specific FOIA request sought all records: A. from December 21, 2007 to the present concerning briefs,

discussions, or other exchanges, any [agency] official hashad with representatives or agents of telecommunicationscompanies concerning amendments to FISA, including anydiscussion of immunizing telecommunications companies orholding them otherwise unaccountable for their role in gov-ernment surveillance activities;

B. from December 21, 2007 to the present concerning briefings,discussions, or other communications from any OAG offi-cial to any member of the Senate or House of Representa-tives or their staffs;

C. from December 21, 2007 to the present concerning any com-munications, discussions, or other exchanges regardless ofsubject that any [agency] official has had with CharlieBlack, Wayne Berman, Dan Coats, Tom Donilon, JamieGorelick or Brad Berenson; and

D. from January 1, 2007 to the present that are responsive tothe categories above, and have not yet been produced inresponse to previous EFF FOIA requests.

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C.F.R. § 1700.12(c)(2) (2007), and 28 C.F.R. § 16.5(d)(1)(ii).When the agencies failed to timely respond, EFF filed twoseparate actions, which were later consolidated by the districtcourt.

C. Procedural History

On April 4, 2008, the district court granted a preliminaryinjunction requiring ODNI and DOJ to expedite processing ofEFF’s December 2007 FOIA requests. EFF, 542 F. Supp. 2dat 1187. The parties negotiated a schedule for processing theJune 2008 requests.

In response to the preliminary injunction, ODNI and DOJreleased many documents, but withheld others pursuant to anumber of FOIA exemptions and privileges. Under Exemp-tion 5 (protecting “inter-agency or intra-agency” documentsprivileged in civil litigation, 5 U.S.C. § 552(b)(5) (2006)),Defendants withheld email messages and other informationexchanged between the agencies and Congress, the agenciesand the telecommunications carriers, and the agencies andother parts of the Executive Branch, including the WhiteHouse.

Defendants also withheld the identities of telecommunica-tions company representatives under Exemption 3 (permittingthe withholding of information “specifically exempted fromdisclosure by statute,” 5 U.S.C. § 552(b)(3)), and Exemption6 (permitting withholding of certain personnel, medical, andsimilar files for which disclosure “would constitute a clearlyunwarranted invasion of personal privacy.” 5 U.S.C.§ 552(b)(6)).

EFF challenged withholdings related to unclassified com-munications between and among Executive agencies, Con-gress, the White House, and telecommunications carriers,concerning amendments to FISA. It also challenged Defen-dants’ withholding of the identities of individual agents or

2323EFF v. ODNI

representatives of the carriers within both the released andwithheld communications. The parties each moved for sum-mary judgment, which they agreed to consolidate, and the dis-trict court denied the government’s motion, granted EFF’scross-motion, and ordered the government to disclose the con-tested documents.

After the district court rejected Defendants’ motions forreconsideration and refused a temporary stay pending theSolicitor General’s determination regarding appeal of the dis-closure order, Defendants sought the stay in this court. Wegranted a stay pending appeal to allow the Solicitor Generalthe opportunity to decide which part(s) of the summary judg-ment order to appeal.

Defendants decided not to appeal the district court order asit pertained to information Defendants exchanged with Con-gress and with the telecommunications firms, and the govern-ment then disclosed the content of all communicationsbetween the agencies and Congress and the agencies and tele-communications carriers, though redacted the identities oftelecommunications firms and their agents or representatives.This substantial disclosure left only two types of informationDefendants continue to withhold.

Under Exemption 5, Defendants are withholding materialsclaimed to have been circulated solely within the ExecutiveBranch. Defendants also continue to withhold the previouslyredacted identities of telecommunications firms and theiragents or representatives involved in the FISA AmendmentsAct communications under Exemption 3 and Exemption 6.

II. DISCUSSION

A. Standard of Review under FOIA

[1] FOIA was enacted to create a “judicially enforceablepublic right to secure” government documents. EPA v. Mink,

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410 U.S. 73, 80 (1973); see also U.S. Dep’t of State v. Ray,502 U.S. 164, 173 (1991) (FOIA “was enacted to facilitatepublic access to Government documents.”). The statutoryscheme provides public access to government information“shielded unnecessarily” from the public and establishes a“judicially enforceable public right to secure such informationfrom possibly unwilling official hands.” Dep’t of Air Force v.Rose, 425 U.S. 352, 361 (1976) (internal quotation marksomitted). FOIA’s purpose was thus to “ensure an informedcitizenry, vital to the functioning of a democratic society,needed to check against corruption and to hold the governorsaccountable to the governed.” John Doe Agency v. John DoeCorp., 493 U.S. 146, 152 (1989) (internal quotation marksomitted).

[2] “At the same time, FOIA contemplates that some infor-mation may legitimately be kept from the public.” Lahr v.NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The statute containsnine exemptions, pursuant to which the government can with-hold information otherwise available for disclosure. See 5U.S.C. § 552(b)(1)-(9) (2006). “FOIA’s ‘strong presumptionin favor of disclosure’ means that an agency that invokes oneof the statutory exemptions to justify the withholding of anyrequested documents or portions of documents bears the bur-den of demonstrating that the exemption properly applies tothe documents.” Lahr, 569 F.3d at 973 (quoting Ray, 502 U.S.at 173). Because of its overarching goal of public disclosure,FOIA “exemptions are to be interpreted narrowly.” Id.

On summary judgment, we employ a two-step standard ofreview in FOIA cases. Lion Raisins Inc. v. U.S. Dep’t ofAgric., 354 F.3d 1072, 1078 (9th Cir. 2004). First, whether,de novo, “an adequate factual basis exists to support the dis-trict court’s decisions.” Milner v. U.S. Dep’t of the Navy, 575F.3d 959, 963 (9th Cir. 2009). If so, “ ‘then we review the dis-trict court’s conclusions of fact for clear error, while legal rul-ings, including its decision that a particular exemptionapplies, are reviewed de novo.’ ” Id. (quoting Lane v. Dep’t

2325EFF v. ODNI

of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008)). The burdenrests on the government to justify its decision to exclude dis-closures under FOIA. U.S. Dep’t of Justice v. ReportersComm. for Freedom of the Press, 489 U.S. 749, 755 (1989)(“Reporters Comm.”).

B. Information on Carriers’ and their Agents’ LobbyingCommunications

1. FOIA Exemption 3

The government argues it is entitled to withhold the namesof the participating carriers and their agents pursuant to FOIAExemption 3. Due to confusion evident in the parties’ cross-motions for summary judgment, the district court did notsquarely address the factual or legal basis of the government’sExemption 3 argument.

[3] FOIA Exemption 3 allows a responding agency towithhold information “specifically exempted from disclosureby statute.” 5 U.S.C. § 552(b)(3). The government argues twostatutes justify its withholdings: First, Section 103(c)(7) of theNational Security Act of 1947, obligating the Director ofNational Intelligence to “protect intelligence sources andmethods from unauthorized disclosure,” 50 U.S.C. § 403-1(i)(1) (2006); see also CIA v. Sims, 471 U.S. 159, 178-79(1985); and second, Section 6 of the National SecurityAgency Act of 1959, which prevents “disclosure of the orga-nization or any function of the National Security Agency, orany information with respect to the activities thereof, or of thenames, titles, salaries, or number of persons employed bysuch agency,” Pub. L. No. 86-36, 73 Stat. 63, codified at 50U.S.C. § 402 note.

Under these statutes and Exemption 3, the government’ssummary judgment brief argued, “ODNI and DOJ withheldinformation that could reveal whether any particular telecom-munications carrier has assisted, or may in the future assist,

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the government with intelligence activities.” The governmentclaimed disclosure “could deter telecommunications compa-nies from assisting the government in the future,” and disclo-sure “provides our adversaries with valuable informationabout our intelligence sources, methods, and capabilities.”

[4] The government’s argument was predicated on the fol-lowing inference: Revealing the identity of carriers and theiragents working for a carrier liability shield would allow for-eign intelligence agents to determine contours of NSA intelli-gence operations, sources, and methods. In other words,knowledge of which firms were and were not lobbying for lia-bility protection could lead to inferences regarding the firmsthat participate in the surveillance program. EFF disputes thepropriety of this inference. However, because the districtcourt did not address Exemption 3 due to confusion in theparties’ summary judgment briefing, we remand for the dis-trict court to address these claims in the first instance. SeePac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1147(9th Cir. 2008).

EFF’s motion opposing the government’s summary judg-ment motion is likely the source of the district court’s confu-sion. The government relied on the following statement fromEFF’s motion in claiming EFF abandoned its objection to thegovernment’s withholding the names of telecommunicationsfirms and agents under Exemption 3: “EFF has decided not tochallenge . . . the withholding of any material under Exemp-tions 1, 2, 3, or 7(E).” The district court, in passing, men-tioned this same statement from EFF’s motion in failing todiscuss Exemption 3 in its summary judgment ruling.

Although EFF’s statement seems to abandon its Exemption3 challenge, other language contradicts such a conclusion. Forexample, the sentence quoted above ended in a footnote,which included the following: “In some cases, the govern-ment claims Exemptions 1 and/or 3 in conjunction withExemptions 5 and/or 6. EFF continues to challenge the

2327EFF v. ODNI

Exemption 5 and 6 withholdings to the extent the records canbe disclosed without revealing classified information or thegovernment’s intelligence sources and methods.” In the sameparagraph with the confusing sentence, EFF went on to claim,“as a result of EFF’s efforts to narrow the scope of the litiga-tion, the only material still at issue relates to unclassifiedcommunications between and among executive agencies,Congress, the White House, and telecommunications compa-nies concerning amendments to FISA, and the identities ofindividual agents or representatives of the carriers withinthose communications.”

The government’s reply to EFF claimed EFF had “clearlyabandoned its challenge of Exemption 3 withholdings,” andthe government did not discuss the merits of whether releas-ing names of telecommunications firms and their agents wasadequately withheld under Exemption 3.

EFF countered, claiming the government’s argumentsunder Exemption 3 were “coextensive” with the Exemption 6arguments. EFF explained, “[a]s noted in EFF’s openingbrief, despite not challenging Exemption 3 directly, ‘EFF con-tinues to challenge the Exemption 5 and 6 withholdings to theextent that records can be disclosed without revealing classi-fied information or the government’s intelligence sources andmethods.’ ” It continued, “[t]he identities of the individualscontacting the government would reveal neither classifiedinformation nor the government’s intelligence sources andmethods.” The parties thus placed the district court in the dif-ficult position of determining, over disputed claims, whetherExemption 3 claims were actually at issue.

The district court seemed to accept the government’s asser-tion that EFF abandoned its Exemption 3 challenge, but, then,when it found the government could not withhold the samedocuments under Exemption 6, it ordered them released with-out considering the documents for which the government alsoclaimed Exemption 3. Assuming the district court found EFF

2328 EFF v. ODNI

abandoned its Exemption 3 arguments, these would appear tobe validly withheld documents under the government’s sup-posedly unchallenged Exemption 3 claim.

A single valid exemption is sufficient to support withhold-ing. See Milner, 575 F.3d at 971 n.8; Painting Indus. of Haw.Mkt. Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479,1486 (9th Cir. 1994). Therefore, if the district court foundEFF had abandoned its argument against Exemption 3 with-holding, the documents the government withheld pursuant toExemption 3 should not have been ordered released. If thedistrict court found EFF was actually challenging whetherreleasing the names of telecommunications firms and theiragents constituted an unauthorized disclosure of intelligencesources and methods, it should have undertaken that analysis.

[5] Based on the nature of EFF’s challenge, we take thelatter position. Because the district court did not review thegovernments’ arguments pursuant to Exemption 3, we remandfor it to conduct the Exemption 3 review. See Pac. Fisheries,Inc., 539 F.3d at 1147. A remand is particularly appropriatebecause our two-step review of FOIA determinations presup-poses the district court has determined a contested issue. SeeMilner, 575 F.3d at 963; Berman v. CIA, 501 F.3d 1136,1139-40 (9th Cir. 2007).

The record indicates EFF never conceded its challenge towithholding the names of the carriers and their agents despiteits statement it was abandoning its Exemption 3 challenge.Thus, finding EFF did relinquish this challenge, and decidingthe issue solely under Exemption 6, would not be an accuratereading of EFF’s arguments as a whole, nor is it reason toreject out-of-hand all challenges to the government’s with-holding of the carriers’ and agents’ identities.

The government claims that releasing identities of firmsand individuals working for a carrier liability shield willcreate an inference of the government’s sources of intelli-

2329EFF v. ODNI

gence. Determining whether this claim is meritorious mayrequire factual determinations, and it also may require—though it may not—the reviewing court to view the disputeddocuments in camera as opposed to simply relying on theVaughn indices currently in the record. Further, our well-established procedure for reviewing FOIA exemption deter-minations is not perfectly applicable where, as here, the dis-trict court did not make an actual determination. See Milner,575 F.3d at 963; Berman, 501 F.3d at 1139-40.

[6] For the foregoing reasons, we vacate and remand thedistrict court’s Exemption 3 analysis, to the extent one exists,for the district court to address whether the government prop-erly withheld telecommunications firms’ and their agents’identities pursuant to FOIA Exemption 3.

2. FOIA Exemption 6

Defendants also claim they are entitled to withhold thenames of the telecommunications carriers and their agentspursuant to Exemption 6 to protect the agents’ personal pri-vacy. Because satisfying a single FOIA exemption is all thegovernment must show to withhold a given piece of informa-tion, see Berman, 501 F.3d at 1141 n.2, we must also reachthe Exemption 6 issue.

The district court found the “public interest in an informedcitizenry” outweighed the carriers’ agents’ “not substantial”privacy interests. For the reasons explained below, we affirmthe district court on the Exemption 6 summary judgment grantfor EFF.

[7] Exemption 6 removes “personnel and medical files andsimilar files the disclosure of which would constitute a clearlyunwarranted invasion of personal privacy” from FOIA’s dis-closure requirements. 5 U.S.C. § 552(b)(6). In consideringwhether Exemption 6 applies to a particular request for infor-mation, we must consider, first, whether the information is

2330 EFF v. ODNI

contained in a personnel, medical, or “similar” file, and, sec-ond, “whether release of the information would constitute aclearly unwarranted invasion of the person’s privacy.” U.S.Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)(finding citizenship status properly withheld under Exemption6). In conducting this second inquiry, we balance the individ-ual’s privacy interest against “the extent to which FOIA’scentral purpose of opening agency action to public scrutinywould be served by disclosure.” U.S. Dep’t of Def. v. Fed.Labor Relations Auth., 510 U.S. 487, 491 (1994); see Lahr,569 F.3d at 973 (A court “must balance the privacy interestprotected by the exemptions against the public interest in gov-ernment openness that would be served by disclosure.”).

The first question is thus whether communications docu-mented in the records in question constitute “similar” infor-mation as that contained in personnel and medical files underExemption 6. As the government points out, EFF does notcontest whether the emails are “similar files.” Though thismay be a closer question than the government describes, weassume without deciding that the documents at issue herequalify as “similar files.” See Nat’l Ass’n of Home Buildersv. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002) (assuming with-out deciding that the documents in question were similar filesbecause invasion of privacy question was dispositive andmore straightforward).

[8] We next consider “whether release of the informationwould constitute a clearly unwarranted invasion of that per-son’s privacy.” Wash. Post Co., 456 U.S. at 602. “[T]o deter-mine whether a record is properly withheld, we must balancethe privacy interest protected by the exemptions against thepublic interest in government openness that would be servedby disclosure.” Lahr, 569 F.3d at 973.

The district court concluded “that there is some, althoughnot a substantial, privacy interest in the withheld documentsindicating the identities of the private individuals and entities

2331EFF v. ODNI

who communicated with the ODNI and DOJ in connectionwith the FISA amendments.” It found, however, “that thepublic interest in an informed citizenry weighs in favor of dis-closure” because “there is a strong public interest in disclo-sure of the identity of the individuals who contacted thegovernment . . . to protect telecommunications companiesfrom legal liability for their role in government surveillanceactivities.” We agree.

[9] Because Exemption 6 cases often involve a disputeover whether to redact a government employee’s name, or arecord of an individual in a large government database, thereis little authority on the privacy interest under Exemption 6when a private individual voluntarily seeks to engage withand persuade the government on a policy position. However,as described below, the few cases considering a private partyattempting to influence government policy typically find infavor of disclosure, lacking countervailing concerns not pres-ent in this case. See, e.g., Alliance for the Wild Rockies v.Dep’t of the Interior, 53 F. Supp. 2d 32, 36-37 (D.D.C. 1999).

Perhaps the most factually analogous case is People for theAmerican Way Foundation v. National Park Service, in whicha district court rejected Exemption 6 withholding of the iden-tities of a group urging the National Park Service to alter thevideo shown at the Lincoln Memorial to remove “photographsand video coverage of demonstrations that occurred at theLincoln Memorial, including gay rights, pro-choice and anti-Vietnam War footage.” 503 F. Supp. 2d 284, 288-89 (D.D.C.2007). Discussing Exemption 6, the court stated, “[w]hen acitizen petitions his government to take some action, courtshave generally declined to find the identity of the citizen tobe information that raises privacy concerns under exemption6.” Id. at 305-06 (internal quotation marks omitted).

The cases considering this issue largely reason along thesame lines. Although some cases have found little publicinterest in disclosing the name of a constituent writing to a

2332 EFF v. ODNI

member of Congress, they recognize the obvious distinctionbetween that and the public’s interest in knowing which polit-ically active groups affect government decision making. Seeid. (distinguishing constituent letters from more involvedforms of policy influence). Compare Strout v. U.S. ParoleComm’n, 40 F.3d 136, 139 (6th Cir. 1994) (finding consider-able privacy interest in individuals writing to oppose parolerequest), and Kidd v. Dep’t of Justice, 362 F. Supp. 2d 291,297 (D.D.C. 2005) (“Providing personal identifying informa-tion commonly found in constituent letters [to members ofCongress] does not advance the purposes of FOIA and, assuch, may be withheld from FOIA requests.”), and Voinchev. FBI, 940 F. Supp. 323, 330 (D.D.C. 1996) (“There is noreason to believe that the public will obtain a better under-standing of the workings of various agencies by learning theidentities of . . . private citizens who wrote to governmentofficials . . . .”), with Kurzon v. Dep’t of Health & HumanServs., 649 F.2d 65, 69-70 (1st Cir.1981) (rejecting govern-ment’s Exemption 6 argument to withhold names of scientiststurned down for research funding, holding that although the“protection of professional reputation, even in this strictsense, is not beyond the purview of exemption 6, it is not atits core”), and Lardner v. U.S. Dep’t of Justice, No. Civ.A.03-0180(JDB), 2005 WL 758267, at *18 (D.D.C. Mar. 31, 2005)(holding public interest in identifying persons influencingpresidential pardon power outweighed modest privacy inter-est), and Judicial Watch of Florida, Inc. v. U.S. Dep’t of Jus-tice, 102 F. Supp. 2d 6, 18 (D.D.C. 2000) (“Depriving thepublic of knowledge of the writer’s identity would deprive thepublic of a fact which could suggest that their Justice Depart-ment had been steered by political pressure rather than by therelevant facts and law.”), and Alliance for the Wild Rockies,53 F. Supp. 2d at 36-38 (names and addresses of individualswho submitted comments on proposed rulemaking could notbe withheld under Exemption 6 because of public interest indisclosure).

Here, we balance the public interest in obtaining informa-tion about the effects of lobbying on government decision

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making against the privacy concerns of telecommunicationsindustry lobbyists in keeping their names and the nature oftheir employment activities private. Under Exemption 6, ourinquiry is primarily concerned with privacy, here that of thecarriers’ agents and lobbyists.

[10] There is a clear public interest in public knowledge ofthe methods through which well-connected corporate lobby-ists wield their influence. As the Supreme Court hasexplained, “[o]fficial information that sheds light on an agen-cy’s performance of its statutory duties” merits disclosure.Reporters Comm., 489 U.S. at 773.

[11] With knowledge of the lobbyists’ identities, the publicwill be able to determine how the Executive Branch usedadvice from particular individuals and corporations in reach-ing its own policy decisions. Such information will allow thepublic to draw inferences comparing the various agents’ influ-ence in relation to each other and compared to the agents’ ortheir corporate sponsors’ political activity and contributions toeither the President or key members of Congress. In short, wefind the public interest in “government openness that wouldbe served by disclosure” of how the government makes deci-sions potentially shielding firms lobbying (and donating tocampaigns) from nine-figure liabilities to be plainly impor-tant. See Lahr, 569 F.3d at 973.

[12] The district court also correctly found that lobbyists’privacy interests in the nature of their employment, should notcounterbalance the public’s strong interest. See Sims v. CIA,642 F.2d 562, 574-75 (D.C. Cir. 1980); People for the Am.Way Found., 503 F. Supp. 2d at 303-07. Putting aside thenational security concerns discussed above, as we must underExemption 6, government acknowledgment of a lobbyist’slobbying activities does not reveal “sensitive personal infor-mation” about the individual rising to a “clearly unwarrantedinvasion of personal privacy.” Judicial Watch, Inc. v. Dep’t ofJustice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Reed v. NLRB,

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927 F.2d 1249, 1251 (D.C. Cir. 1991). “Official informationthat sheds light on an agency’s performance of its statutoryduties falls squarely within [Exemption 6’s] statutory pur-pose.” Reporters Comm., 489 U.S. at 773. Unlike situationsin which private citizens find themselves in a large govern-ment database because of conduct unrelated to the inquiryunderlying the FOIA action, when “[t]he applicant is petition-ing the government for the performance of a public act; thisis not a situation where he is a third-party who finds himselfin government records through no action of his own.” Lard-ner, 2005 WL 758267 at *17.

[13] With regard to the carriers’ agents’ email addresses,however, the district court did not perform the same carefulbalancing in which it engaged for the agents’ names. As EFFexplained, the public interest in disclosing the identities of thelobbyists’ names is to shed light on which companies andwhich individuals influence government decision making. Weagree with that rationale, but we find no corresponding inter-est as to the carriers’ agents’ email addresses. Yet we can eas-ily envision possible privacy invasions resulting from publicdisclosure of the email addresses. EFF provides no argument,and we can think of none, countering our conclusion that theemail addresses may add to the risk of privacy invasion withlittle additional benefit to the public interest. See Forest Serv.Employees for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d1021, 1025 (9th Cir. 2008) (“[I]nformation about private citi-zens that is accumulated in various governmental files but thatreveals little or nothing about an agency’s own conduct is notthe type of information to which FOIA permits access.”)(internal quotation marks omitted).

[14] Thus the carriers’ agents’ email addresses, when notneeded to identify the party communicating with the govern-ment, are protected from release by Exemption 6. If, however,a particular email address is the only way to identify the carri-ers’ agent at issue from the disputed records, such informationis not properly withheld under Exemption 6 because this

2335EFF v. ODNI

minor privacy interest does not counterbalance the robustinterest of citizens’ right to know “what their government isup to.” Reporters Comm., 489 U.S. at 773 (internal quotationmarks omitted).

[15] In short, we affirm the district court’s careful balanc-ing of the public interest against the privacy interests ofagents for the carriers, finding disclosure of the names of peo-ple seeking to influence the agencies’ pursuit of a retroactivecarrier shield does not constitute “a clearly unwarranted inva-sion of personal privacy.” 5 U.S.C. § 552(b)(6) (2006). How-ever, we reverse the district court as to the agents’ emailaddresses—so long as they are not needed to identify theagent—for which there is little public interest in disclosureand at least some privacy interest.

C. Information Excluded Under Exemption 5

The parties also dispute the propriety of the governmentwithholding information, primarily in emails, pursuant toFOIA Exemption 5. Exemption 5 provides that FOIA “doesnot apply to matters that are . . . inter-agency or intra-agencymemorandums or letters which would not be available by lawto a party other than an agency in litigation with the agency.”Id. § 552(b)(5).

In the district court, the government attempted to withholdcommunications regarding the FISA Amendments betweenthe Executive Branch, Congress, and the telecommunicationsfirms under Exemption 5. As the district court explained, “thebulk of the records at issue consist[ed] of confidential emailmessages exchanged between ODNI or DOJ official[s] andcongressional staff in which the parties to the emails dis-cussed, analyzed and negotiated possible amendments toFISA.” The district court found the government had improp-erly withheld documents under Exemption 5 and ordered thedisclosure of all disputed documents, including all“documents exchanged between ODNI and DOJ officials and

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congressional staff or those documents regarding communica-tions between representatives of the telecommunications com-panies and government officials.”

Unlike more thorough district court opinions in compli-cated FOIA cases specifying groups of documents to discloseaccording to the government’s Vaughn indices, see, e.g., Peo-ple for the Am. Way Found., 503 F. Supp. 2d at 297-304 (ana-lyzing each category of withheld documents in detail), thedistrict court here ordered complete disclosure of all disputeddocuments without focusing on information in the Vaughnindices showing distribution only within the DOJ and ODNIor between the DOJ and the White House.

On appeal, defendants concede that subsequent to the dis-trict court order, the government determined the district courtwas correct to order disclosure of the documents exchangedbetween the Executive Branch and Congress, as well as thosein which the telecommunications firms were involved in theexchange. See Dep’t of the Interior v. Klamath Water UsersProtective Ass’n, 532 U.S. 1, 8 (2001). The government thusreleased these documents per the district court order, redact-ing information identifying telecommunications firms or theiragents pursuant to the Exemption 3 and Exemption 6 issuesdiscussed above. However, the government essentially takesissue with the thoroughness of the district court, noting itsbroad order includes categories of information from theVaughn indices circulated only within executive agencies andthe White House.

EFF focuses on arguments regarding whether the ExecutiveOffice of the President is an “agency,” and how we shouldaddress the privilege claims if we find the district courtimproperly concluded all documents were not inter-branch orintra-branch communications. Presumably EFF focuses onthese arguments because, in passing, it concedes the districtcourt erred in finding all documents at issue were not inter-branch or intra-branch memorandums or letters. EFF notes,

2337EFF v. ODNI

“[t]he government argues, and EFF agrees, that communica-tions within DOJ and ODNI or between Executive Branchagencies satisfy the threshold.”

This explanation highlights the district court’s error anddemonstrates why remand on Exemption 5 is necessary.While a district court’s broad rejection of an Exemption 5withholding is not necessarily problematic, its inquiry shouldbe fact-specific, and, as demonstrated below, the absence ofa careful review of the record in this case warrants remand.

[16] To qualify for Exemption 5’s protection from disclo-sure, “a document must . . . satisfy two conditions: its sourcemust be a Government agency, and it must fall within theambit of a privilege against discovery under judicial standardsthat would govern litigation against the agency that holds it.”Klamath, 532 U.S. at 8.

The government primarily challenges the district court’sfinding that none of the still-disputed documents are “inter-agency or intra-agency memorandums or letters.” See 5U.S.C. § 552(b)(5). In support of its argument, the govern-ment partially undertakes the exercise that the district courtshould have engaged to reach its decision: the governmentlooks to specific entries in the Vaughn indices and declara-tions, arguing they are inter-agency or intra-agency docu-ments. Specifically, the government points to a number ofdocuments which it convincingly argues the district courtimproperly found were not inter-agency or intra-agency mem-orandums or letters.4

4Relying on the declaration of Melanie Ann Pustay, Director of theOffice of Information and Privacy (“OIP”), U.S. DOJ, the governmentcites the following documents:

1. OIP Vaughn Index categories 1, 2, 3, and 9, which are “con-fidential communications exchanged within the ExecutiveBranch or between offices within the Department of Justicediscussing options, forwarding draft language, and exchang-ing ideas regarding FISA amendments.”

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[17] Examining the Vaughn indices themselves shows theimportance of engaging in the admittedly time-consuminganalysis not performed here. Nearly all of the characteriza-

2. OIP Vaughn Index category 4, which “contains draft memo-randa, notes, and talking points regarding amendments to theFISA.”

3. OIP Vaughn Index categories 3 and 9, which include deliber-ative emails exchanged within DOJ.

4. OIP Vaughn Index categories 1 and 2, which include deliber-ative emails exchanged between DOJ and other ExecutiveBranch and White House officials.

Relying on the declaration of Charles Steele, Chief of Staff of DOJ’sNational Security Division, the government cites the following document:

1. NSD Vaughn Index groups 2 and 3, which are “communica-tions exchanged within the Executive Branch or officeswithin the Department of Justice.”

Relying on the declaration of Paul Colborn, Special Counsel in theOLC, the government cites the following documents:

1. OLC Vaughn Index numbers 4, 9, 112, 114, and 115, which“consist of internal Executive Branch e-mail deliberationsregarding communications . . . concerning FISA.”

2. OLC Vaughn Index numbers 46 and 74, which are “intraExecutive Branch e-mails discussing the substance of com-munications with counsel for the telecommunications com-panies sharing a common interest with the United States.”

3. 20 emails, for which the Vaughn Index numbers are not spec-ified, “exchanged between OLC attorneys and other Depart-ment of Executive Branch staff.”

Relying on the declaration of John Hackett, Director of the InformationManagement Office for the ODNI, the government cites the followingdocument:

1. ODNI Vaughn Index category 5, which is an “email chain””between ODNI and NSA officials.”

This list may not be entirely exhaustive, but it is a powerful exampleof documents that, according to the relevant Vaughn index, wereexchanged within the Executive Branch or between agencies.

2339EFF v. ODNI

tions in the government-offered declarations comport with thedescriptions in the Vaughn indices of inter-branch or intra-branch communications. Thus, for these emails, the districtcourt should have more closely examined the documents todetermine whether they were in fact inter-agency or intra-agency memorandums or letters. Including them in a broaddisclosure order was error under any standard.

In addition, in at least two instances (OLC Vaughn Indexnumbers 46 & 74), the plain language of the declarationseems to imply an intra-Executive Branch email when, in fact,the Vaughn Index makes clear the communications at issuewere between the Executive Branch and telecommunicationscompany representatives. This highlights the need for a fact-specific inquiry under Exemption 5.

Thus the district court’s blanket finding that all of the dis-puted communications were not inter-branch or intra-branchmemorandums or letters eligible for privilege analysis underExemption 5 is problematic, as is clear from the face of thegovernment’s declarations and Vaughn indices.5 This mayhave occurred because the documents in question wereincluded with so many other documents exchanged betweenthe Executive Branch and either Congress or the telecommu-nications carriers, as to which the district court correctly con-cluded Exemption 5 did not apply.

[18] Accordingly, we remand to the district court onExemption 5 to examine each contested category of docu-ments to determine whether its actual sender(s) and recipi-ent(s) render it an inter-agency or intra-agency document,

5This is not to say the district court must find all of these documentsinter-agency or intra-agency memorandums or letters on remand. How-ever, it should examine the Vaughn indices and declarations, and conductan in camera examination of the actual documents if necessary, to deter-mine exactly who in the government was transmitting and receiving theinformation and whether Exemption 5 thus applies (in which case the dis-trict court would have to consider if the information was privileged).

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keeping in mind the contours of the doctrine concerningwhether the Executive Office of the President and certainother White House components are “agencies” for FOIA pur-poses. See, e.g., 5 U.S.C. § 552(f)(1) (2006) (“ ‘[A]gency’ asdefined in section 551(1) of this title includes any executivedepartment, military department, Government corporation,Government controlled corporation, or other establishment inthe executive branch of the Government (including the Execu-tive Office of the President.)”); Kissinger v. Reporters Comm.for Freedom of the Press, 445 U.S. 136, 156 (1980); JudicialWatch Inc., 365 F.3d at 1113-22. For those documents the dis-trict court classifies as inter-agency or intra-agency, the dis-trict court will then have to consider whether any of thegovernment’s asserted privileges allow withholding. SeeKlamath, 532 U.S. at 1865.

III. CONCLUSION

[19] We affirm the district court’s grant of summary judg-ment for EFF as to the release of names and email addressesunder FOIA Exemption 6, though we reverse as to emailaddresses only for which other information identifying theagent at issue is available in the communication. This ordermay not necessarily result in disclosure of names for whichthe government also argues withholding pursuant to Exemp-tion 3, because we vacate the district court’s denial of sum-mary judgment for the government and grant of summaryjudgment for EFF as to FOIA Exemptions 3 and 5, andremand for consideration of these Exemptions consistent withthis Opinion.

AFFIRMED in part, REVERSED in part, VACATEDand REMANDED in part. Each party shall bear its owncosts on appeal.

2341EFF v. ODNI