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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
THE NEWS-PRESS, division of 
Multimedia Holdings Corporation, 
CAPE PUBLICATIONS, INC., publisher 
of Florida Today, PENSACOLA NEWSJOURNAL, 
division of Multimedia 
Holdings Corporation,
Plaintiffs, 
Case No. 2:05-cv-102-FtM-29DNF vs. 
UNITED STATES DEPARTMENT OF HOMELAND 
SECURITY, and its component Federal 
Emergency Management Agency, 
Defendant. 
______________________________________ 
OPINION AND ORDER 
This matter comes before the Court on Defendants Motion for 
Summary Judgment (Doc. #37) filed on August 10, 2005, and 
Plaintiffs Motion for Summary Judgment (Doc. #46), filed on 
September 7, 2005. Both sides filed Responses (Docs. #48, 52) to 
the others motion. The Court heard oral argument on September 30, 
2005. Both parties, with the permission of the Court, filed a 
supplemental memorandum. (Docs. #57, 58). On October 31, 2005, 
defendant filed certain documents in camera (Doc. #S-1), as 
directed by the Court (Doc. #63). Case 2:05-cv-00102-JES-DNF Document 69 Filed 11/04/2005 Page 2 of 53
 
I. 
In August and September, 2004 portions of the State of Florida 
sustained damage as the result of Tropical Storm Bonnie, Hurricane 
Charley, Hurricane Frances, Hurricane Ivan, and Hurricane Jeanne 
(collectively the 2004 Florida Hurricanes). After each of the 2004 
Florida Hurricanes, the President of the United States issued a 
major disaster declaration pursuant to the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 
U.S.C.  5121 et seq., and directed the Federal Emergency 
Management Agency (FEMA) to provide federal disaster assistance to 
the affected areas. Plaintiff media outlets and others thereafter 
raised issues concerning the manner in which FEMA distributed the 
emergency aid, the amounts of aid obligated, and the legitimacy of 
individual claims for relief. Plaintiffs filed three requests for 
information pursuant to the Freedom of Information Act (FOIA), 
which were ultimately amended to include all 2004 Florida 
Hurricanes. 
On October 29, 2004, plaintiffs filed Request No. 05-019, 
which requested three categories of documents. First, plaintiffs 
requested documents and information relating to the Presidential 
declarations of a major disaster. FEMAs May 4, 2005 response 
produced approximately 150 pages of documents but withheld fifteen 
pages of documents and redacted certain information from other 
documents produced, including the initials and names of employees 
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and officials who reviewed preliminary drafts and the recommended 
courses of actions before they were finalized. 
Second, plaintiffs requested documents relating to public 
assistance, including disaster project worksheet summaries 
separated by county and including the applicants name and site 
number locations. FEMAs April 19, 2005, response was one compact 
disc (CD) containing a 405-page chart of Project Worksheet 
Summaries for Project Worksheet, which did not withhold any 
information. 
Third, plaintiffs requested documents relating to individual 
assistance awards separated by zip codes and county, including 
recipient names and addresses. FEMAs March 24, 2005, response 
withheld the names and addresses of approximately 605,500 
applicants but provided seven CDs of data stored on FEMAs National 
Emergency Management Information System (NEMIS), which if printed 
would total almost one million pages. For each disaster assistance 
applicant, the data included disaster number, zip code, county, 
registration identification, category of assistance, assistance 
status, assistance type, assistance status detail, eligibility 
date, approved date, eligibility amount, determination type, and 
ownership. The data also included inspection information by 
individual applicant, including line item description, quantity 
recorded, SBA status, water level, cause of damage, insurance 
status for line item, personal property description, clothing, 
miscellaneous line description, generic room, essential tool item 
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description, real property damage item description, damage level, 
item amount, and damage type. 
On November 4, 2004, plaintiffs filed Request No. 05-020, 
which requested an electronic spreadsheet showing all flood claims 
from FEMAs National Flood Insurance Program (NFIP) for Florida in 
2004. FEMAs March 4, 2005, response provided one CD containing a 
spreadsheet and code key, but withheld records containing the 
applicants addresses. 
On February 15, 2005, plaintiffs filed Request No. 05-113, 
which requested documents related to FEMAs contracts with 
companies to provide disaster housing inspection services, 
specifically with the Partnership for Response and Recovery (PaRR 
Inspections), a joint venture of URS Corp., Dewberry & Davis, LLC 
and Scientific Service, Inc., and Alltech, Inc., a subsidiary of 
Parsons Brinckerhoff. FEMAs May 7, 2005, response included over 
350 pages of documents consisting of contracts and inspections, but 
withheld the inspectors compensation rate, the names of key 
personnel, and the drafts of Section J of the contracts, and 
redacted portions of the final version of Section K of the 
contracts. 
On March 9, 2005, plaintiffs filed their Complaint (Doc. #1); 
on March 16, 2005, plaintiffs filed an Amended Complaint (Doc. #6); 
and on June 3, 2005, plaintiffs filed their Second Amended 
Complaint (Doc. #27). Count I of the Second Amended Complaint 
alleged that defendants violated FOIA by failing to respond to the 
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requests in a timely manner. Plaintiffs concede this count is 
moot, except for possible attorney fees and costs. (Doc. #48, p. 
6). Count II alleges that defendants violated FOIA by improperly 
withholding documents for which no exemption was applicable. 
Defendant filed its Answer (Doc. #30) on June 23, 2005. Also 
before the Court are Vaughn Indices and Affidavits (Doc. #31); 
Redacted Documents Disclosed in Response to Plaintiffs FOIA 
Request (Docs. #32, 33, 34, 44); Amended Vaughn Indices (Doc. #38); 
and Declarations (Docs. #47, 49). Pursuant to an Order (Doc. #63) 
filed after oral arguments, defendant filed certain of the 
contested documents in camera for the Courts ex parte review. 
(Doc. #S-1). 
II. 
The purpose of the Freedom of Information Act, 5 U.S.C.  552, 
is to encourage public disclosure of information so citizens may 
understand what their government is doing. Office of the Capital 
Collateral Counsel v. Department of Justice, 331 F.3d 799, 802 
(11th Cir. 2003). FOIA requires government agencies to disclose to 
the public any requested document unless the agency proves that the 
document fall within one of nine statutory exemptions. Moye, 
OBrien, ORourke, Hogan & Pickert v. National R.R. Passenger 
Corp., 376 F.3d 1270, 1276-77 (11th Cir. 2004). Because the 
purpose of FOIA is to encourage disclosure, its disclosure 
requirements are construed broadly, its exemptions are construed 
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narrowly, and the government bears the burden of proving a 
requested document is exempted. Id. at 1277.1 While FOIA allows 
an agency to withhold information within one of the exemptions, it 
does not limit the agencys discretion to disclose such exempt 
information if it sees fit. Chrysler Corp. v. Brown, 441 U.S. 281, 
293-94 (1979). 
The Privacy Act also comes into play in this case. The 
Privacy Act provides in pertinent part that [n]o agency shall 
disclose any record which is contained in a system of records . . 
. except pursuant to a written request by, or with the prior 
consent of, the individual to whom the record pertains, unless 
disclosure of the record would be . . . (2) required under section 
552 of this title [FOIA]. 5 U.S.C.  552a(b)(2). The Privacy 
Act was passed in 1974 to protect the privacy of individuals 
identified in government information systems by regulating the 
1A long and virtually unbroken line of Supreme Court cases 
have repeatedly articulated these general principles. EPA v. Mink, 
410 U.S. 73 (1973); National Labor Relations Bd. v. Sears, Roebuck 
& Co., 421 U.S. 132, 136 (1975); Department of the Air Force v. 
Rose, 425 U.S. 352, 361 (1976); Federal Open Mkt. Comm. v. Federal 
Reserve Sys., 443 U.S. 340 (1979); Chrysler Corp. v. Brown, 441 
U.S. 281 (1979); United States v. Weber Aircraft Corp., 465 U.S. 
792, 793-94 (1984); United States Dept of Justice v. Reporters 
Comm. for Freedom of the Press, 489 U.S. 749 (1989); John Doe 
Agency v. John Doe Corp., 493 U.S. 146 (1990); United States Dept 
of State v. Ray, 502 U.S. 164 (1991); United States Dept of 
Justice v. Landano, 508 U.S. 165 (1993); United States Dept of 
Def. v. Federal Labor Relations Auth., 510 U.S. 487 (1994); Bibles 
v. Oregon Natural Desert Assn, 519 U.S. 355 (1997); Department of 
the Interior and Bureau of Indian Affairs v. Klamath Water Users 
Protective Assn, 532 U.S. 1 (2001); National Archives and Records 
Admin. v. Favish, 541 U.S. 157 (2004). 
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collection, maintenance, use and dissemination of personal 
information and prohibiting unnecessary and excessive exchange of 
such information within the government and to outside individuals. 
Cochran v. United States, 770 F.2d 949, 954 (11th Cir. 1985). The 
Privacy Act was enacted in large part in response to concern over 
the impact of computer data banks on individual privacy. United 
States Dept of Justice v. Reporters Comm. for Freedom of the 
Press, 489 U.S. 749, 766 (1989). 
While the Privacy Act and FOIA have contradictory purposes, 
the relationship between the two statutes is well-established: the 
Privacy Act expressly defers to the mandatory disclosure 
requirements of the FOIA by prohibiting the nonconsensual release 
of personal information unless the information is required to be 
disclosed under the FOIA. The net effect [of  552a(b)(2)] is to 
permit disclosure where the FOIA requires it, but to prohibit 
disclosure where the FOIA allows the agency to refuse to disclose. 
Cochran, 770 F.2d at 954-55 (internal citation and quotation 
omitted). 
As is often the case, the disputes in this case center around 
the scope of various FOIA exemptions. The Court will discuss 
generally the contours of each arguably applicable exemption, and 
then conduct a de novo review of FEMAs claims of exemption, as 
required by 5 U.S.C.  552(a)(4)(B). If the information falls 
within one of the statutory exemptions, the Courts inquiry is over 
and FOIA does not require disclosure of that information. National 
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Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 147-48 
(1975). 
A. Exemption 2: 
Exemption 2 allows a government agency to withhold from 
disclosure materials related solely to the internal personnel 
rules and practices of an agency. 5 U.S.C.  552(b)(2). [T]he 
general thrust of the exemption is simply to relieve agencies of 
the burden of assembling and maintaining for public inspection 
matter in which the public could not reasonably be expected to have 
an interest. Department of the Air Force v. Rose, 425 U.S. 352, 
369-70 (1976). The Court considers whether the matter is one of 
merely internal significance, or concerns only routine matters, or 
entails administrative burden. Id. at 370. Generally, Exemption 
2 is not applicable to matters which are of a genuine and 
significant public interest. Id. at 369. 
B. Exemption 4: 
Exemption 4 allows a government agency to withhold from 
disclosure trade secrets and commercial or financial information 
obtained from a person and privileged or confidential. 5 U.S.C. 
 552(b)(4); Brown, 441 U.S. at 291. In order for information to 
be within exemption 4, it must be either a trade secret or (1) 
commercial or financial information, (2) obtained from a person, 
and (3) privileged or confidential. The Miami Herald Publg Co. 
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v. United States Small Business Admin., 670 F.2d 610, 613 (5th Cir. 
1982)(Unit B).2 
C. Exemption 5: 
Exemption 5 allows a government agency to withhold from 
disclosure inter-agency or intra-agency memorandums or letters 
which would not be available by law to a party other than an agency 
in litigation with the agency. 5 U.S.C.  552(b)(5). To 
qualify, a document must thus satisfy two conditions: its source 
must be a Government agency, and it must fall within the ambit of 
a privilege against discovery under judicial standards that would 
govern litigation against the agency that holds it. Department of 
the Interior and Bureau of Indian Affairs v. Klamath Water Users 
Protective Assn, 532 U.S. 1, 8 (2001). 
Only those documents normally privileged in the civil 
discovery context are within the scope of Exemption 5. Sears, 421 
U.S. at 148-49; Moye, OBrien, ORourke, Hogan & Pickert, 376 F.3d 
at 1277; Florida House of Representatives v. United States Dept of 
Commerce, 961 F.2d 941, 944 (11th Cir. 1992). Protection from 
disclosure extends to documents which are within the deliberative 
process privilege, Moye, OBrien, ORourke, Hogan & Pickert, 376 
2In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 
1982) the Eleventh Circuit adopted as binding precedent all of the 
post-September 30, 1981 decisions of Unit B of the former Fifth 
Circuit. 
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F.3d at 1277; Florida House of Representatives, 961 F.2d at 945, 
which is the only privilege FEMA asserts in this case.3 
The purpose of the deliberative process privilege is to allow 
agencies to freely explore possibilities, engage in internal 
debates, or play devils advocate without fear of public scrutiny. 
Moye, OBrien, ORourke, Hogan & Pickert, 376 F.3d at 1277. More 
simply, [t]he underlying purpose of the deliberative process 
privilege is to ensure that agencies are not forced to operate in 
a fish bowl. Id. at 1278. The deliberative process privilege 
rests on the obvious realization that officials will not 
communicate candidly among themselves if each remark is a potential 
item of discovery and front page news, and its object is to enhance 
the quality of agency decisions by protecting open and frank 
discussions among those who make them within the Government. 
Klamath Water Users Protective Assn, 532 U.S. at 8-9 (internal 
citations and quotations omitted). Thus, Exemption 5 covers 
documents reflecting advisory opinions, recommendations, and 
deliberations comprising part of a process by which government 
decisions and policies are formulated. Moye, OBrien, ORourke, 
Hogan & Pickert, 376 F.3d at 1277. 
To come within the scope of the deliberative process 
privilege, the document must be both predecisional and 
3As discussed later, FEMA has not (and cannot) assert a claim 
of executive privilege on behalf of the President of the United 
States. 
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deliberative. Id. at 1277; Florida House of Representatives, 961 
F.2d at 945. A predecisional document is one prepared in order 
to assist an agency decision-maker in arriving at his decision and 
may include recommendations, draft documents, proposals, 
suggestions, and other subjective documents which reflect the 
personal opinions of the writer rather than the policy of the 
agency so long as the document is not merely peripheral to actual 
policy formulation. Moye, OBrien, ORourke, Hogan & Pickert, 376 
F.3d at 1277-78. A document is deliberative if the disclosure 
of the materials would expose an agencys decision-making process 
in such a way as to discourage candid discussion within the agency 
and, thereby, undermine the agencys ability to perform its 
function. Id. at 1278. Therefore, courts must focus on the 
effect of the materials release, and conclude that predecisional 
materials are privileged to the extent that they reveal the mental 
processes of decisionmakers. Id. (internal citation and quotation 
omitted). 
Additionally, there is a distinction for Exemption 5 purposes 
between factual data and opinion data. [F]actual information 
generally must be disclosed and materials embodying officials 
opinions are ordinarily exempt from disclosure. Id. at 1278. See 
also Florida House of Representatives, 961 F.2d at 947-50. Thus, 
the deliberative process privilege does not protect purely factual 
material contained in privileged documents if the disclosure of 
such information would not reveal the nature of the deliberations. 
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Judicial Watch, Inc. v. Department of Energy, 412 F.3d 125, 131 
(D.C. Cir. 2005)(citing EPA v. Mink, 410 U.S. 73, 87-88 (1973)). 
D. Exemption 6: 
Exemption 6 allows a government agency to withhold 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). This exemption has 
three basic requirements: First, the documents must be personnel, 
medical or similar files; second, disclosure of the documents must 
constitute an invasion of personal privacy; and third, the personal 
privacy invasion must be clearly unwarranted. United States Dept 
of State v. Ray, 502 U.S. 164, 171 (1991); Rose, 425 U.S. at 381- 
82. A court is required to balance the public interest in 
disclosure against the individuals right of personal privacy. 
United States Dept of Def. v. Federal Labor Relations Auth., 510 
U.S. 487, 495 (1994); Ray, 502 U.S. at 175; Rose, 425 U.S. at 372. 
The ultimate issue is whether disclosure would constitute a clearly 
unwarranted invasion of the personal privacy of the individual 
within the meaning of the FOIA. Federal Labor Relations Auth., 510 
U.S. at 495. 
Exemption 6 applies broadly to detailed Government records on 
an individual which can be identified as applying to that 
individual. United States Dept of State v. Washington Post Co., 
456 U.S. 595, 602 (1982). The exemption, however, does not create 
a blanket exemption for these types of files, and the government 
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must disclose nonconfidential matters which may be contained in 
such files. Rose, 425 U.S. at 371-77. 
A persons privacy interest may include an individuals 
interest in avoiding disclosure of personal events and facts, even 
if previously disclosed to the public in some form. Reporters 
Comm. for Freedom of the Press, 489 U.S. at 762 (privacy interest 
in criminal record or rap sheet). The fact that the person is a 
public official, or that an event is not wholly private, does not 
render the interest in preserving personal privacy without weight. 
Office of the Capital Collateral Counsel, 331 F.3d at 803. Third 
parties who are identified in the documents also have a privacy 
interest that must be balanced against the public interest in 
disclosure. Id. at 804. [D]isclosure of records regarding 
private citizens, identifiable by name, is not what the framers of 
the FOIA had in mind. Reporters Comm. for Freedom of the Press, 
489 U.S. at 765. 
The only relevant public interest to be considered in this 
balancing process is the extent to which disclosure of the 
information sought would shed light on an agencys performance of 
its statutory duties or otherwise let citizens know what their 
government is up to. Bibles v. Oregon Natural Desert Assn, 519 
U.S. 355, 355-56 (1997); Federal Labor Relations Auth., 510 U.S. at 
495, 497; Reporters Comm. for Freedom of the Press, 489 U.S. at 
775. Thus, the FOIAs central purpose is to ensure that the 
Governments activities be opened to the sharp eye of public 
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scrutiny, not that information about private citizens that happens 
to be in the warehouse of the Government be disclosed. Reporters 
Comm. for Freedom of the Press, 489 U.S. at 774 (emphasis in 
original). Official information that sheds light on an agencys 
performance of its statutory duties falls squarely within [the 
FOIA] statutory purpose. Id. at 773. The fact that the 
information may provide details for a news story is not, in itself, 
the kind of public interest protected by the FOIA. Id. at 774. 
Whether an invasion of privacy is warranted cannot turn on the 
purposes for which the request for information is made. Bibles, 
519 U.S. at 356; Federal Labor Relations Auth., 510 U.S. at 496; 
Reporters Comm. for Freedom of the Press, 489 U.S. at 771. The 
identity of the requesting party or the purpose for which the 
information is requested are generally not relevant to the 
determination of whether the invasion of privacy is warranted. 
Federal Labor Relations Auth., 510 U.S. at 496; Reporters Comm. for 
Freedom of the Press, 489 U.S. at 721. Thus, the rights of the 
media to disclosure are no different than the rights of any third 
party. Reporters Comm. for Freedom of the Press, 489 U.S. at 771. 
Any peculiar interest of the requesting party is irrelevant to 
evaluating this general public interest. Office of the Capital 
Collateral Counsel, 331 F.3d at 803 (citing John Doe Agency v. John 
Doe Corp., 493 U.S. 146 (1989)). Congress granted the scholar and 
the scoundrel equal rights of access to agency records. Durns v. 
Bureau of Prisons, 804 F.2d 701, 706 (D.C. Cir. 1986). 
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The Court may consider whether there is already substantial 
information available to the public about the agency conduct which 
may satisfy the public interest. Ray, 502 U.S. at 178; Office of 
the Capital Collateral Counsel, 331 F.3d at 804. The availability 
of information through other sources lessens the public interest in 
its release through FOIA. Horowitz v. Peace Corps., __ F.3d __, 
2005 WL 2806357, *5 (D.C. Cir. Oct. 28, 2005). 
III. 
(A) Presidential Declaration Documents, Request No. 05-019: 
The process by which a disaster declaration is issued is 
described by statute, 42 U.S.C.  5121 et seq., and regulation, 44 
C.F.R.  206.31-206.60, and in the Declaration of Daniel A. Craig 
(Doc. #37, Exhibit 2,  4-18)4. In summary, a State Governor 
submits a request for a major disaster or emergency declaration to 
the President of the United States through the appropriate FEMA 
Regional Director; the Regional Director prepares a summary for the 
Recovery Division Director based on information from the State and 
consultation with state, federal, and other interested parties; the 
Recovery Division seeks the concurrence/non-concurrence from all 
the program areas requested by the Governor, and ultimately 
provides the Under Secretary with a program recommendation; the 
4All references in this section are to defendants Notice of 
Filing Redacted Documents Disclosed in Response to Plaintiffs FOIA 
Request No. 05-019 (Doc. #32) followed by the page number on the 
lower right hand corner of the attachment. 
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Under Secretary formulates a finding concerning the severity and 
magnitude of the disaster and a recommendation, which is forwarded 
to the President with the Governors request. 
Upon the declaration of a major disaster or emergency, the 
Governor and the FEMA Regional Director or designee execute a FEMAState 
Agreement under which the federal disaster assistance will be 
provided. The Governor may thereafter request that additional 
areas or types of federal assistance be authorized by the Under 
Secretary. These additional requests are made to the Recovery 
Division Director through the appropriate Federal Coordinating 
Officer and Regional Director; the Recovery Division Director 
obtains the concurrence or non-concurrence from appropriate FEMA 
officials, and then recommends approval or denial of the request to 
the Under Secretary. 
FEMA provides three broad categories of disaster assistance: 
Individual Assistance to individuals and households affected by the 
disaster; Public Assistance to state and local governments affected 
by the disaster; and Hazard Mitigation for projects that will 
result in protection from disaster damage to public or private 
property. FEMA generally pays 75% of eligible Public Assistance 
work costs, but may recommend an increase in the federal share up 
to 90% under certain circumstances. FEMA may also recommend up to 
100% federal funding for emergency work under the Public Assistance 
program under certain circumstances. 
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On August 13, 2004, Florida Governor Jeb Bush requested that 
the President of the United States declare Florida a disaster area 
because of Tropical Storm Bonnie and Hurricane Charley. (Doc. #32 
at 0072-92).5 FEMA withheld documents or portions of documents 
generated thereafter related to this and subsequent requests. At 
oral argument plaintiffs withdrew their objection to the 
nondisclosure of the redacted portions of certain documents (Doc. 
#32 at 0014-0016, 0021-25, 0027, 0029, 0043, 0046, 0052, 0128, 
0131, 0134, 0135-46) withheld pursuant to the deliberative process 
privilege of Exemption 5. Reference to some of these documents may 
still be necessary, however, to place the withheld documents in 
context. 
(1) Under Secretary Browns Initial Memorandum to President: 
An August 13, 2004, FEMA Memorandum (Doc. #32 at 00125-128) 
concerning a Regional Disaster Summary of the State of Florida, and 
a FEMA Memorandum (Doc. #32 at 00129-136) concerning a Regional 
Analysis and Recommendation, State of Florida, were produced in 
redacted form [now without objection]. However FEMA withheld, 
pursuant to the deliberative process privilege of Exemption 5, the 
entirety of an August 13, 2004, Memorandum (Doc. #32 at 0065-69) 
from then-Under Secretary Michael D. Brown to President George W. 
5The Declaration of Daniel A. Craig states (Doc. #37, Exhibit 
2, pp. 10-11,  23) that FEMA withheld the entirety of Governor 
Bushs Request for a Major Disaster Declaration. This appears to 
be incorrect, since the Governors request is included in its 
entirety in FEMAs Response to plaintiffs FOIA Request No. 05-019. 
(Doc. #32 at 0072-0092). 
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Bush which discussed Floridas request and contained supporting 
documentation. Thereafter on August 13, 2004, President Bush 
signed a letter to former Under Secretary Brown declaring the State 
of Florida a major disaster area as the result of Tropical Storm 
Bonnie and Hurricane Charley. (Doc. #32 at 0036-70). Pursuant to 
the Stafford Act, President Bush authorized FEMA to allocate 
available funds; to provide Individual Assistance; to provide 
debris removal assistance and emergency protective measures under 
Public Assistance throughout the State; and to provide any other 
forms of assistance under the Stafford Act subject to completion of 
Preliminary Damage Assessments. Federal funds were limited to 75 
percent of the total eligible costs. The Presidents authorization 
letter was fully disclosed by FEMA. 
As an initial matter, the Court will revisit FEMAs recent 
suggestion that the memorandum to President Bush is protected by 
executive privilege (presidential communications privilege). The 
entirety of the memorandum may be protected if this privilege was 
properly invoked, thus simplifying the Courts analysis. The Court 
has again reviewed defendants Motion for Summary Judgment (Doc. 
#37) and its Response to Plaintiffs Motion for Summary Judgment 
(Doc. #52), and finds that executive privilege was not asserted; 
only the deliberative process privilege was asserted. (Doc. #37, 
pp. 20-21,25-27; Doc. #52, pp. 10-12, 14-16). FEMA relies on a 
single sentence in the Declaration of Danial A. Craig, the Director 
of the Recovery Division of the Department of Homeland Security, 
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Federal Emergency Management Agency: Further, the request involves 
highly confidential and deliberative discussions and 
recommendations relating to the Presidents sole and un-delegated 
authority to declare a disaster, the disclosure of which would have 
a chilling effect on the Executive Branchs decision-making 
process. (Doc. #37-3 p. 10). This is clearly not an invocation 
of executive privilege. Executive privilege is an extraordinary 
assertion of power not to be lightly invoked. Cheney v. United 
States Dist. Court for Dist. of Columbia, 124 S. Ct. 2576, 2592 
(2004)(quoting United States v. Reynolds, 345 U.S. 1, 7 (1953)). 
Mr. Craig did not purport to speak for the President, and his 
official position is not such that he would necessarily have the 
authority to invoke the privilege on behalf of the President. 
The Court has reviewed the August 13, 2004 Memorandum from 
former Under Secretary Brown to President Bush in camera. The 
Court concludes that withholding this Memorandum pursuant to the 
deliberative process privilege of Exemption 5 was proper in part. 
The Memorandum was clearly an inter-agency memorandum from one 
government agency to another. E.g., Renegotiating Bd. v. Grumman 
Aircraft Engg Corp., 421 U.S. 168, 188 (1975). The Memorandum was 
predecisional within the meaning of the deliberative process 
privilege because it was prepared in order to assist President Bush 
in deciding whether to grant the request to declare Florida a 
disaster area due to Tropical Storm Bonnie and Hurricane Charley, 
and was not merely peripheral to that decision. The Memorandum was 
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deliberative within the meaning of the deliberative process 
privilege because disclosure of the memorandum would expose the 
Presidents decision-making process in such a way as to discourage 
candid input from the Under Secretary and thereby undermine the 
Presidents ability to function properly. 
Plaintiffs argue that any portion of the Under Secretarys 
Memorandum discussing non-deliberative, purely factual information 
must be disclosed, even under Exemption 5. The Supreme Court has 
stated that otherwise nonprivileged factual material cannot be 
withheld under Exemption 5 merely because it appears in the same 
document as privileged material. United States v. Weber Aircraft 
Corp., 465 U.S. 792, 800 n.17 (1984). The Supreme Court went on to 
note that this aspect of its Mink decision was subsequently 
codified at 5 U.S.C.  552(b), which provides Any reasonably 
segregable portion of a record shall be provided to any person 
requesting such record after deletion of the portions which are 
exempt under this subsection. 
The Court concludes that there are factual portions of the 
Memorandum which must be disclosed because they are reasonably 
segregable and not so intertwined with material protected by the 
deliberative process privilege as to make disclosure impractical. 
The August 13, 2004 Memorandum is divided into the following 
sections: Event, Background, Recommendation, Decision, 
Attachment, Detailed Discussion, and has an attached State Map 
showing the type(s) of assistance requested by the Florida Governor 
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by county. The Court finds that the Recommendation and 
Decision sections of the Memorandum were properly withheld under 
the deliberative process privilege; the remaining sections must be 
disclosed. 
Plaintiffs argue, however, that even a recommendation must be 
disclosed if incorporated into a final agency policy. Plaintiffs 
state: Once a recommendation has been adopted as policy, the 
decisions of the recommendation is no longer deliberative and, 
therefore, is not subject to Exemption 5. . . . Because these 
presidential acts adopted the Departments statements and 
interpretations, those matters are not subject to Exemption 5. 
(Doc. #48, p. 23). Plaintiffs assert that because FEMA has failed 
to show that the Memorandum was not incorporated into final agency 
policy, its claimed exemption must be overruled. The only binding 
precedent plaintiffs rely upon is Sears, 421 U.S. 132. 
The Court disagrees. The Supreme Court has not held that a 
recommendation loses its privileged status if it is accepted by the 
government decision maker, or that only unsuccessful 
recommendations are protected. Rather, Sears stated we hold that, 
if an agency chooses expressly to adopt or incorporate by reference 
an intra-agency memorandum previously covered by Exemption 5 in 
what would otherwise be a final opinion, that memorandum may be 
withheld only on the ground that it falls within the coverage of 
some exemption other than Exemption 5. 421 U.S. at 161. See also 
Grumman Aircraft Engg Corp., 421 U.S. at 184-86; Florida House of 
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Representatives, 961 F.2d at 945 n.4. An examination of the 
Presidents letter declaring Florida a disaster area (Doc. #32 at 
0036) shows that the former Under Secretarys Memorandum was 
neither expressly adopted nor incorporated by reference. Indeed, 
President Bush in the letter clearly states I have determined . . 
. and that I . . . declare . . . Florida a major disaster area. 
The reasons for the privilege distinctions discussed in Grumman 
Aircraft Engg Corp., 421 U.S. at 187 n.24, fully apply to the 
distinction between the Under Secretarys recommendation and the 
Presidents decision. 
(2) Under Secretary Browns Memorandum To President Re: 
Florida Cost Share Request: An August 15, 2004, FEMA Memorandum 
(Doc. #32 at 0052) forwarded a request by the Florida Governors 
representative for certain percentages of the federal cost share 
for federal assistance based upon Tropical Storm Bonnie and 
Hurricane Charley, and contained a recommendation concerning this 
request. FEMA produced this Memorandum, but redacted [now without 
objection] the recommendation. An August 15, 2004, FEMA Memorandum 
(Doc. #32 at 0047-49, 0054-56) from former Under Secretary Brown to 
President Bush requested and offered recommendations pertaining to 
a cost-sharing adjustment for Florida. FEMA withheld the entirety 
of this memorandum pursuant to the deliberative process privilege 
of Exemption 5. On August 16, 2004, President Bush wrote to 
Governor Bush and Under Secretary Brown advising them that the 
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damage from Tropical Storm Bonnie and Hurricane Charley was of 
sufficient severity and magnitude that he was amending his August 
13 declaration and authorizing federal funds for debris removal and 
emergency protective measures at 100 percent of total eligible 
costs for the first 72 hours and 100 percent for direct Federal 
assistance. (Doc. #32 at 0050-51; 0057-60). The entirety of the 
Presidents letters were disclosed by FEMA. 
For the reasons stated in Section III(A)(1), the Court rejects 
FEMAs suggestion that this August 15, 2004 Memorandum was withheld 
pursuant to a valid assertion of executive privilege. 
The Court has reviewed the August 15, 2004 Memorandum from 
former Under Secretary Brown to President Bush in camera. The 
Court concludes that withholding this Memorandum pursuant to the 
deliberative process privilege of Exemption 5 was proper in part 
for the same reasons discussed in Section III(A)(1) above. The 
Memorandum was clearly an inter-agency memorandum from one 
government agency to another. The Memorandum was predecisional 
within the meaning of the deliberative process privilege because it 
was prepared in order to assist President Bush in deciding whether 
to grant Floridas request that the federal share of the costs from 
Tropical Storm Bonnie and Hurricane Charley be increased, and was 
not merely peripheral to that decision. The Memorandum was 
deliberative within the meaning of the deliberative process 
privilege because disclosure of the memorandum would expose the 
Presidents decision-making process in such a way as to discourage 
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candid input from FEMA and thereby undermine the Presidents 
ability to function properly. President Bush did not expressly 
adopt or incorporate the Memorandum in his final decision. The 
Background and Attachments portion of the Memorandum must be 
disclosed as reasonably segregable factual material, while the 
Recommendation and Decision portions of the Memorandum were 
properly withheld under the deliberative process privilege. 
(3) Florida County Add-On Request: An August 20 2004, FEMA 
Memorandum (Doc. #32 at 0025) forwarded a copy of the Florida 
Governors representatives letter requesting the addition of 
twelve Florida counties for Public Assistance Categories C-G, and 
one county for Individual Assistance (Doc. #32 at 0026). FEMA 
produced this Memorandum, but pursuant to Exemptions 2 and 6 
redacted the identities of the FEMA employees who reviewed the 
request and their signatures as either concurring or not concurring 
in the request. In its summary judgment motion, FEMA asserted for 
the first time that Exemption 5 also justified the redaction of 
this information. The identity and signature of the official who 
authored the Memorandum and the identity of the official to whom 
the Memorandum was sent were not redacted. 
As noted earlier, Exemption 2 allows a government agency to 
withhold from disclosure materials related solely to the internal 
personnel rules and practices of an agency. 5 U.S.C.  552(b)(2). 
Exemption 2 applies to material used for predominantly internal 
purposes and which relates to trivial administrative matters of no 
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genuine public interest. Schiller v. National Labor Relations Bd., 
964 F.2d 1205, 1207 (D.C. Cir. 1992). This exemption applies to 
routine matters of merely internal significance in which the 
public lacks any substantial or legitimate interest. Lesar v. 
United States Dept Of Justice, 636 F.2d 472, 485 (D.C. Cir. 
1980)(footnote citations omitted). 
The Court finds that the identities of FEMA employees who 
reviewed the Florida request and their signatures attesting to 
their concurrence or non-concurrence are well within Exemption 2. 
The review process of a county add-on request is a predominantly 
internal matter and the Memorandum was used for such internal 
purposes. The names and signatures of FEMA employees who reviewed 
and expressed an opinion about the Florida request on its way up 
the FEMA bureaucratic chain of command to the ultimate decision 
maker are internal matters of no genuine and significant public 
interest. The Supreme Court has approved redaction of identifying 
information as a method of protecting bona fide Exemption 2 
information while requiring disclosure of other information of 
significant and genuine public interest within the same document. 
E.g., Rose, 425 U.S. at 370 n.8. While plaintiffs may be correct 
that there is a great public interest in how FEMA decided which 
counties would be in the declared disaster area, and how much of 
the recovery effort would be federally funded and for how long 
(Doc. #48, p. 21), disclosure of the names and signatures would not 
shed any more light on these issues than the redacted Memorandum. 
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Indeed, FEMA has disclosed documents addressing each of these 
articulated areas of interest. 
The Court concludes, however, that the redaction was not 
justified under Exemption 6 because the names and signatures did 
not constitute a clearly unwarranted invasion of personal privacy 
under  552(b)(6). While employment at certain governmental 
agencies may indeed require secrecy, there is nothing about 
employment at FEMA or concurrence/non-concurrence in a county addon 
request that would invoke personal privacy, much less 
constitute a clearly unwarranted invasion of that privacy. 
Disclosure will shed no light on activities as a private citizen or 
impair the purpose of Exemption 6 to protect individuals from the 
injury and embarrassment that can result from the unnecessary 
disclosure of personal information. The Washington Post Co., 456 
U.S. at 599 (emphasis added). Any incidental invasion of privacy 
is not protected by Exemption 6. Rose, 425 U.S. at 382. FEMA has 
not cited a single case applying Exemption 6 to such names and 
signatures. (Doc. #37, pp. 23-25). 
Finally, FEMA has not cited any appellate authority supporting 
its argument that these redactions are within the scope of 
Exemption 5. (Id.). Neither of the two cases cited by FEMA (id., 
p. 23) applied Exemption 5 to identifying names and signatures. In 
the absence of any authority justifying the redaction under the 
deliberative process privilege of Exemption 5, the Court will 
reject this belated assertion. 
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In sum, the Court concludes that redaction pursuant to 
Exemption 2 was proper as to this Memorandum, but that Exemption 6 
and Exemption 5 do not provide a proper basis for the redaction of 
the names and signatures. 
(4) Preliminary Damage Assessments Review: An August 22, 
2004, FEMA Memorandum (Doc. #32 at 0024) forwarded the 
recommendation of the Infrastructure Branch based on review of the 
Preliminary Damage Assessments of August 17-21, 2004. FEMA 
produced this Memorandum, but pursuant to Exemptions 2 and 6 
redacted the identities of the FEMA employee who wrote the 
Memorandum6, the employees who reviewed the request, and their 
signatures as either concurring or not concurring in the request. 
The signature of the Federal Coordinating Officer as concurring was 
not redacted; the redaction of the recommendation is no longer 
challenged. 
For the reasons set forth at Section III(A)(3), the Court 
concludes that redaction pursuant to Exemption 2 was proper as to 
this Memorandum, but that Exemption 6 and Exemption 5 do not 
provide a proper basis for the redaction of the names and 
signatures. 
(5) Second Florida County Add-On Request: On August 24, 2004, 
the Florida Governors representative requested (Doc. #32 at 0005) 
6FEMAs Vaughn index (Doc. #31, Exhibit B, p.3) identifies the 
person who wrote the Memorandum, so the issue of the propriety of 
withholding this name is moot. 
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that the FEMA Federal Coordinating Officer add six Florida counties 
to Public Assistance Categories C-G based upon a joint Preliminary 
Damage Assessment. An August 24, 2004, FEMA Memorandum (Doc. #32 
at 0004-13) forwarded the results of the Preliminary Damage 
Assessments conducted August 17-21, 2004, and the recommendation of 
the Infrastructure Branch to the FEMA Federal Coordinating Officer. 
FEMA produced this Memorandum, but pursuant to Exemptions 2 and 6 
redacted the identities of the FEMA employee(s) who wrote the 
Memorandum7 and the identity of the employee(s) who reviewed the 
recommendation. Plaintiffs no longer object to the redaction of 
the recommendation. 
For the reasons set forth at Section III(A)(3), the Court 
concludes that redaction pursuant to Exemption 2 was proper as to 
this Memorandum, but Exemption 6 and Exemption 5 do not provide a 
proper basis for the redaction of the names and signatures. 
(6) Another Florida County Add-On Request: An August 25, 
2004, FEMA Memorandum (Doc. #32 at 0003) forwarded the request by 
the Florida Governors representative that six named Florida 
counties be added to those eligible for Public Assistance 
Categories C-G. FEMA produced this Memorandum, but pursuant to 
Exemptions 2 and 6 redacted the identities of the FEMA employees 
7FEMAs Vaughn index (Doc. #31, Exhibit B, p.3) identifies the 
person who wrote the Memorandum, so the issue of the propriety of 
withholding this name is moot. 
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who reviewed the request and their signatures as either concurring 
or not concurring in the request. 
For the reasons set forth at Section III(A)(3), the Court 
concludes that redaction pursuant to Exemption 2 was proper as to 
this Memorandum, but Exemption 6 and Exemption 5 do not provide a 
proper basis for the redaction of the names and signatures. 
(7) Closure of Incident Period: An August 30, 2004, FEMA 
Memorandum (Doc. #32 at 0002) concerning a Request to Close the 
Incident Period reported that it was agreed with the Florida 
Governors representative that the incident period for the Tropical 
Storm Bonnie/Hurricane Charley disaster would close effective 
midnight August 31, 2004, and that an amendment would be made to 
the FEMA-State Agreement. FEMA produced this Memorandum, but 
pursuant to Exemptions 2 and 6 redacted the identities of the FEMA 
employees who reviewed the request and their signatures as either 
concurring or not concurring in the request. 
For the reasons set forth at Section III(A)(3), the Court 
concludes that redaction pursuant to Exemption 2 was proper as to 
this Memorandum, but Exemption 6 and Exemption 5 do not provide a 
proper basis for the redaction of the names and signatures. 
(8)-(10) Florida Cost Share Request: FEMA Memorandum, 
Memorandum to President, and Briefing Document: On October 5, 
2004, the Florida governor requested that President Bush adjust the 
cost share for the disaster declarations for the 2004 Florida 
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Hurricanes (Doc. #32 at 00041-42). Governor Bush requested 90 
percent Federal funding for Public Assistance costs for all four 
major disaster declarations. 
An October 5, 2004, FEMA Memorandum (Doc. #32 at 0043-46) 
forwarded the cost-share request from Governor Bush to someone in 
FEMA. FEMA produced this Memorandum but pursuant to Exemptions 2 
and 6 redacted the identities of the FEMA employee(s) to whom the 
Memorandum was written and the signature(s) as either concurring or 
not concurring in the recommendation. A signature block for nonconcurrence 
[which had no signature], including the officials 
name, was not redacted. The objection to the redaction of the 
recommendation has been withdrawn. 
An October 7, 2004, Memorandum (Doc. #32 at 0032-33) from 
former Under Secretary Brown to President Bush requested and 
offered recommendations pertaining to the cost-sharing adjustment 
request from Florida. A copy of the last page of October 7, 2004, 
Memorandum (Doc. #32 at 0031) contained additional handwritten 
notations. FEMA withheld the entirety of each Memorandum copy 
pursuant to the deliberative process privilege of Exemption 5. 
An undated Briefing, Request for Cost Share Adjustment State 
of Florida (Doc. #32 at 0027-30) reported the October 5, 2004, 
request from Governor Bush. FEMA produced this Briefing document 
but pursuant to Exemptions 2 and 6 redacted the identities of the 
FEMA employees who reviewed the request and their signatures as 
either concurring or not concurring in the request, and pursuant to 
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the deliberative process privilege of Exemption 5 redacted the 
recommendation and the entire text under a Talking Points 
section. Plaintiffs no longer object to the redaction of the 
recommendation, but do object to the withholding of the Talking 
Points section. 
On October 7, 2004, President Bush signed a letter (Doc. #32 
at 0035) to former Under Secretary Brown finding that damage from 
the tropical storm and four major hurricanes was of sufficient 
severity and magnitude that special conditions were warranted 
regarding cost sharing arrangements concerning Federal funds 
provided under the Stafford Act. President Bush amended his prior 
declarations to authorize Federal funding for Public Assistance at 
90 percent of the total eligible costs, except those categories 
previously approved at 100 percent. This letter was fully 
disclosed by FEMA. 
As to the October 5, 2004 FEMA Memorandum, the Court concludes 
that for the reasons set forth at Section III(A)(3), the redaction 
pursuant to Exemption 2 was proper as to this Memorandum, but 
Exemption 6 and Exemption 5 do not provide a proper basis for the 
redaction of the names and signatures. 
As to the October 7, 2004 Memorandum from former Under 
Secretary Brown to President Bush, the Court rejects FEMAs 
suggestion that non-disclosure was justified by a proper invocation 
of executive privilege. The Court has reviewed the Memorandum and 
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copy in camera and concludes that withholding the Memorandum 
pursuant to the deliberative process privilege of Exemption 5 was 
proper in part for the same reasons discussed at Section III(A)(1). 
The Memorandum was clearly an inter-agency memorandum from one 
government agency to another. The Memorandum was predecisional 
within the meaning of the deliberative process privilege because it 
was prepared in order to assist President Bush in deciding whether 
to grant Floridas request that the federal share of the costs be 
increased, and was not merely peripheral to that decision. The 
Memorandum was deliberative within the meaning of the 
deliberative process privilege because disclosure of the memorandum 
would expose the Presidents decision-making process in such a way 
as to discourage candid input from FEMA and thereby undermine the 
Presidents ability to function properly. President Bush did not 
expressly adopt or incorporate the Memorandum in his final 
decision. There is only one substantive section of the Memorandum, 
captioned Background. The Court finds that the last two 
paragraphs were properly withheld under the deliberative process 
privilege, but that the first three paragraphs must be disclosed as 
reasonably segregable factual material. The handwritten notes on 
0031 appear to be written on a sticky attached to the memorandum 
and appear to relate to the FOIA disclosure decision-making 
process. This does not have to be disclosed. 
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As to the undated Briefing document, the Court concludes that 
for the reasons set forth at Section III(A)(3), the redaction 
pursuant to Exemption 2 was proper as to this Memorandum, but 
Exemption 6 and Exemption 5 do not provide a proper basis for the 
redaction of the names and signatures. As to the Talking Points, 
plaintiffs argue that it cannot be determined whether the Talking 
Points are pre-decisional or post-decisional, and that no 
anonymous, undated document is entitled to Exemption 5 protection. 
(Doc. #48, p. 24). The Court is not satisfied that Hoch v. CIA, 
593 F.2d 675, 689 (D.C. Cir. 1984) stands for the general 
proposition that an anonymous memorandum cannot be part of the 
deliberative process privilege. The Court has reviewed in camera 
the Talking Points portion of this document. Both pages (0028, 
0030) are identical; nothing in the contents of this document 
establishes whether it was predecisional or deliberative. The 
descriptions provided in the Vaughn Index (Doc. #31-3, p. 4) and 
Declaration of Daniel A. Craig (Doc. #37-3, p. 9) likewise do not 
establish either element of the deliberative process privilege. 
Since defendant has not established that the exemption applies to 
this document, it must be disclosed. 
(11) Draft Press Release: An August, 2004 draft press release 
(Doc. #32 at 62) and an October, 2004 draft press release (Doc. #32 
at 40) pertaining to cost-sharing adjustments for Florida were 
withheld in their entirety pursuant to the deliberative process 
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privilege of Exemption 5. FEMA asserts that the nondisclosure was 
justified because these documents were non-finalized, draft press 
releases. 
FEMA reports that the draft press releases were prepared by 
FEMA for use by the White House Office of Press Secretary once the 
President made the decisions. FEMA further asserts that the press 
releases include all pertinent information related to the 
declaration with the exception of the declaration date. (Doc. 
#37, Exhibit 3, p. 10). The Vaughn Index states that the draft 
press release was From the White House Office of Press Secretary 
(Doc. #31-3, p. 5). 
The Court concludes that the draft press releases are not 
protected by Exemption 5. FEMA has cited no case which approved 
withholding draft press releases, and the Court has found none. 
Simply labeling a document as a draft, even if accurate, does not 
guarantee it will satisfy the requirements of Exemption 5. While 
the press releases are pre-decisional in a chronological sense, 
they are certainly peripheral to the actual decision. 
Additionally, they are clearly not deliberative, but rather are 
merely a pre-prepared document announcing the decision once it has 
been made, subject to the insertion of the date. FEMA has not 
carried its burden of establishing the draft press releases are 
within the scope of Exemption 5. Accordingly, they must be 
disclosed. 
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(B) Names and Addresses of Disaster Applicants and Flood Claimants: 
FEMA withheld the names, addresses, and physical addresses of 
damage for all applicants for Individual Assistance in connection 
with the 2004 Florida Hurricanes, and the names and physical 
addresses for flood claims submitted under FEMAs National Flood 
Insurance Program (NFIP). FEMA asserts that the Privacy Act, 5 
U.S.C.  552a, prohibited it from releasing such names and 
addresses, and that Exemption 6 of FOIA is applicable. Given the 
interplay of the Privacy Act and FOIA discussed earlier, the 
controlling issue is whether this information is within the scope 
of Exemption 6. Exemption 6 allows a government agency to withhold 
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). 
Names and addresses are typically records covered by the 
broad terms of the Privacy Act, and may be within the scope of 
Exemption 6 of FOIA. Federal Labor Relations Auth., 510 U.S. at 
494; Ray, 502 U.S. 164; F.L.R.A. v. United States Dept of Def., 
977 F.2d 545, 547 n.3 (11th Cir. 1992)(Home addresses generally 
have been categorized as similar files at least potentially 
protected by exemption 6.). See also Forest Guardians v. United 
States Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1218 (10th Cir. 
2005)(Geographic Information System maps are similar files 
because they reveal specific geographic locations which, coupled 
with property records, can lead to the names and addresses of 
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individual owners of property insured by FEMAs National Flood 
Insurance Program). The Court concludes that the names and 
addresses at issue in this case are similar files within the 
meaning of Exemption 6. 
While names and addresses thus qualify under Exemption 6 as 
potentially protectable information, the Supreme Court has not held 
that release of a list of names and other identifying information 
is inherently and always a significant threat to the privacy of 
individuals on the list. Rather, the issue is whether the 
disclosure of the names and addresses would constitute a clearly 
unwarranted invasion of the personal privacy of persons within the 
meaning of Exemption 6. E.g., Federal Labor Relations Auth., 510 
U.S. at 495; Ray, 502 U.S. at 174. Whether the threat is de 
minimis or significant depends upon the characteristics revealed by 
virtue of being on the list and the consequences likely to ensue. 
Ray, 502 U.S. at 177 n.12. To paraphrase Federal Labor Relations 
Authority, the Court must weigh the privacy interest of FEMA 
disaster assistance claimants and flood assistance applicants in 
the nondisclosure of their names and addresses against the public 
interest in the extent to which disclosure would shed light on 
FEMAs performance of its statutory duties or otherwise let 
citizens know what their government is up to. 510 U.S. at 497. 
The privacy interest at stake in this case is substantial for 
several reasons. First, release of the names and addresses of 
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those claiming government benefits will enable others to link the 
great deal of highly personal information already disclosed by FEMA 
to particular individuals. E.g., Ray, 502 U.S. at 175-76. Such 
information includes descriptions and quantities of items replaced, 
SBA status, water level, cause of damage, insurance status, 
personal property description, real property damage description, 
and damage level. It will also enable plaintiffs, or anyone else 
who wants the information, to link up with a variety of public 
databases to determine additional information about the named 
individuals. Plaintiffs counsel asserted at oral argument that 
plaintiffs intended to make such linkages with other public 
databases to determine what FEMA had done. See also Jeff Cull 
Declaration (Doc. #47, Exhibit 1,  8). The same process, however, 
can reasonably be expected to disclose an abundance of personal 
information about the individuals. 
Second, public embarrassment or stigma is a factor to be 
considered. Ray, 502 U.S. at 176-77. Release of names and 
addresses will publicly identify not only a great number of victims 
of the 2004 Florida Hurricanes, but will identify those victims who 
received government assistance. While there is no inherent 
embarrassment or stigma in being the victim of a natural disaster, 
the same cannot necessarily be said about being the recipient of 
individual government assistance. Indeed, plaintiffs deem it 
potentially newsworthy to identify whether those who received such 
assistance are otherwise financially well-off. A recent article in 
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plaintiff The News-Press stated: The News-Press also wants to 
investigate payments to residents in places such as Captiva Island 
- one of the richest areas in the nation - where at least 42 people 
received money. Without knowing who received aid, we cant 
evaluate whether neighbors were treated the same in Lee County, 
across Florida, or even nationwide, said Kate Marymont, executive 
editor of The News-Press. Opening FEMAs Books at Issue, The 
News-Press, October 2, 2005. 
Third, release of a list of the names and addresses of over 
600,000 disaster benefits claimants and 33,000 flood insurance 
claimants creates a reasonable danger of identity theft, not to 
mention actual theft. At oral argument plaintiffs stated that FEMA 
had paid generic amounts for loss of specific items, such as 
television sets. The FEMA records already released identify the 
generic amounts paid for loss of such additional items as microwave 
ovens, lawn mowers, sewing machines, washers and dryers, freezers, 
radios and computers. While the names and addresses of the 
recipients say little more about what FEMA did, they would say a 
great deal about the likely locations of new television sets, 
computers, etc. 
Fourth, plaintiffs plan to make direct contact with at least 
some of the persons whose names and addresses would be disclosed. 
The intent to interview such individuals magnifies the importance 
of the personal privacy interest at stake. Ray, 502 U.S. at 177; 
Federal Labor Relations Auth., 510 U.S. at 500-01. Release of the 
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names and addresses makes the individuals the target of unsolicited 
and perhaps unwanted contact; those who wish to be interviewed can 
certainly volunteer by contacting the media. 
Fifth, the names and addresses requested constitute a valuable 
source of information which is not available in another public 
source. While names and addresses may be available from sources 
such as a telephone directory or public property records, the FEMA 
information is a list of disaster assistance claimants which is not 
available by that characterization elsewhere. The legal 
requirement that other persons, such as commercial advertisers or 
solicitors, must be given the same access to FOIA information as 
the plaintiff newspapers, increases the individual privacy 
interest. Federal Labor Relations Auth., 510 U.S. at 501; Forest 
Guardians, 410 F.3d at 1220 (disclosure of maps which would reveal 
names and addresses but also information about an individuals 
ownership of property, flood risks to the property, an individuals 
decision to purchase federally subsidized flood insurance through 
the NFIP, and the manner in which the property was purchased 
constituted an invasion of personal privacy); OKane v. United 
States Customs Serv., 169 F.3d 1308, 1309-10 (11th Cir. 1999) (U.S. 
Customs Service not required to disclose the addresses of 
individuals whose possessions it seized because their interest in 
privacy was not outweighed by interest of attorney who wanted 
disclosure so he could solicit the individuals for his law 
practice). As National Association of Retired Federal Employees v. 
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Horner stated, one need only assume that business people will not 
overlook an opportunity to get cheaply from the Government what 
otherwise comes dearly, a list of qualified prospects for all the 
special goods, services, and causes likely to appeal to persons on 
the list. 879 F.2d 873, 878 (D.C. Cir. 1989). 
Against this substantial privacy interest, the Court balances 
the relevant public interest. The only relevant public interest in 
disclosure to be weighed in this balancing process is the extent 
to which disclosure would serve the core purpose of the FOIA, 
which is contribut[ing] significantly to public understanding of 
the operations or activities of the government. Federal Labor 
Relations Auth., 510 U.S. at 497 (quoting Reporters Comm. for 
Freedom of the Press, 489 U.S. at 775) (emphasis in original). See 
also Bibles, 519 U.S. at 355-56. 
While FEMA initially suggested there was slight public 
interest (Doc. #37, p. 18), at oral argument FEMAs counsel 
acknowledged, with what appears to be understatement, that there is 
currently a public interest in FEMAs activities and operations. 
(Doc. #64, p. 20). Indeed, plaintiffs have produced ample evidence 
in their filings (Docs. #47, 49) that there is a significant, 
legitimate public interest in the activities and operations of 
FEMA, both with regard to the 2004 Florida Hurricanes and 
generally. The public interest in knowing whether FEMA has 
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adequately performed its statutory duties is certainly cognizable 
under FOIA. E.g., Ray, 502 U.S. at 178. 
The Court must balance the substantial privacy interests of 
the claimants against the significant, legitimate public interest 
in FEMAs activities and operations. More specifically, the 
balance is between the substantial privacy interest and the extent 
to which disclosure of the names and addresses would contribute to 
the public understanding of the operations and activities of FEMA. 
The Court concludes that the balance weighs in favor of nondisclosure. 
Disclosure of the names and addresses would say little 
more about FEMA, but would expose the claimants to predictable and 
obtrusive invasions of privacy. On balance, the public interest 
can be adequately served by the disclosure of the redacted 
documents and disclosure of the unredacted documents already 
released by FEMA. E.g., Ray, 502 U.S. at 178. 
Release of the names and address will shed little additional 
light on FEMAs conduct. Because employee addresses say nothing 
about a federal agencys character or function, under Reporters 
Committee for Freedom of the Press, the public interest side of the 
balance here carries little weight. F.L.R.A., 977 F.2d at 547 
(employees addresses exempt when requested by union representing 
the government unit). Here, unlike F.L.R.A., disclosure of the 
addresses will say something about FEMA, at least to the extent 
they reveal the addresses at which physical damage was claimed to 
have occurred. Nonetheless, the Court concludes that this carries 
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little weight in the overall scheme of things in the balancing 
process. 
Plaintiffs strongest argument is also the one which, if 
considered, tips the scale towards the privacy invasion side. The 
plaintiff newspapers wish to make derivative use of the names and 
addresses. Derivative use encompasses the situation where the 
names and addresses might provide leads for an investigative 
reporter seeking to ferret out what the government is up to. Sheet 
Metal Workers Intl Assn v. United States Air Force, 63 F.3d 994, 
998 n.3 (10th Cir. 1995)(citing and quoting previous D.C. Circuit 
cases). Here, plaintiff newspapers wish to utilize the names and 
addresses in part by interviewing the benefits claimants and thus 
obtaining information about the government from outside the FEMA 
files. 
The public interest value and relevance of derivative use has 
not been decided by the Supreme Court, Ray, 502 U.S. at 179, and 
the Circuit Courts disagree. Sheet Metal Workers Intl Assn, 63 
F.3d at 997-98. In F.L.R.A., the Eleventh Circuit rejected the 
argument that there was a controlling public interest in addresses 
plaintiff could use to contact federal employees to learn something 
about the government. 977 F.2d at 547. The F.L.R.A. court said, 
however, [b]ut with no allegation that the government might be 
operating irregularly, the union cannot establish public interest 
based on something so tenuous. Id. at 548. H e r e , t h e r e a r e 
allegations of FEMA misconduct involving waste and payment of 
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fraudulent claims. FEMA records show more than 6,500 recoupment 
letters seeking to recover more than $27 million in benefits 
mistakenly paid by FEMA. (Doc. #47, Exhibit 1, p. 2,  4). 
Plaintiffs report a Congressional investigation into FEMAs 
operations and activities in connection with the 2004 Florida 
Hurricanes and other activities, and indictments in the Southern 
District of Florida involve criminal misconduct by citizens. (Doc. 
#47, Exhibit 1, pp. 2-3). Fraudulent activity by citizens 
following a hurricane would not be new. E.g., United States v. 
Toussaint, 84 F.3d 1406 (11th Cir. 1995)(False claim for SBA loan 
where defendant claimed $360,000 damage from Hurricane Andrew but 
in fact suffered no loss). 
The Court considers the potential derivative use articulated 
by plaintiffs, but finds that it does not tip the balance in favor 
of disclosure. If anything, it does the opposite. 
The Court finds that the privacy interest in the nondisclosure 
of their names and addresses of the 605,500 FEMA claimants and the 
33,000 NFIA claimants substantially outweighs the FOIA-related 
public interest in disclosure. The Court therefore concludes that 
disclosure would constitute a clearly unwarranted invasion of 
personal privacy within the meaning of 5 U.S.C.  552(b)(6). 
Accordingly, FOIA does not require FEMA to disclose the names and 
addresses, and the Privacy Act therefore prohibits their release. 
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(C) FEMA Contracts8 
In February, 2001 FEMA executed two contracts with outside 
contractors to perform and manage housing inspection services in 
disaster areas nationwide (the Contracts). (Docs. #33 at 0076- 
0190; #34 at 0080-0196). With the exercise of option years, the 
Contracts expired on September 30, 2005, and were valued at 
approximately $150 million each. According to the Declaration of 
Chandra Lewis (Doc. #37, Exhibit 4, pp. 2-3), the Contracts were 
awarded pursuant to the bidding and award procedures of the Federal 
Acquisition Regulations (FAR). FEMA advertised for the contracts, 
and received Business Proposals and Limited Written Technical 
Proposals from nine entities. The Limited Written Technical 
Proposals included draft management plans for a Cultural Diversity 
Plan, a Staffing Plan, a Concept of Operations Plan, a Quality 
Control Plan, a Quality Assurance and Surveillance Plan, a Small 
Business and Small Disadvantaged Business Subcontracting Plan, and 
a Phase-In Plan. FEMA evaluated each proposal, notified and 
negotiated with those offerors within the competitive range, then 
called for final proposal revisions. Based upon technical and 
cost/price evaluation, FEMA awarded the contracts to PaRR 
Inspections and to Alltech, Inc. (collectively the Contractors). 
FEMA incorporated the draft Management Plans/Technical Proposals by 
8All references in this section are to defendants Notice of 
Filing Redacted [or Additional] Documents Disclosed in Response to 
Plaintiffs FOIA Request No. 05-113 (Docs. #33, 34, 44) followed by 
the page number on the lower right hand corner of the attachment. 
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reference into the resulting Contracts; FEMA modified and updated 
the plans periodically thereafter. On June 28, 2005, and July 15, 
2005, FEMA and the Contractors finalized the plans for Cultural 
Diversity Plan, Staffing Plan, Concept of Operations Plan, Quality 
Control Plan, Small Business and Small Disadvantaged Business 
Subcontracting Plan, and Phase-In Plan. 
While the Contractors assert that the Contracts are highly 
confidential, (Doc. #52, Exhibit 2,  8; Exhibit 3,  7), FEMA has 
disclosed most portions of the Contracts, and has disclosed the 
modifications which were executed between 2001 and the September 
30, 2005 expiration date. FEMA withheld certain portions of the 
Contracts, relying largely on Exemption 4. The specific material 
withheld is discussed below. 
Exemption 4 provides that FEMA is not required to disclose 
trade secrets and commercial or financial information obtained 
from a person and privileged or confidential . . . 5 U.S.C.  
552(b)(4). Its purpose is to protect the interests of individuals 
who disclose information to government agencies and to protect the 
Government. Shermco Indus., Inc. v. Secretary of the Air Force, 
613 F.2d 1314, 1317 (5th Cir. 1980)(Unit B)(cost information by 
bidder was protected by Exemption 4 where the award of the 
government contract was not final). Commercial or financial 
information is confidential for purposes of the exemption if its 
disclosure will likely (a) impair the governments ability to 
obtain necessary information in the future or, (b) cause 
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substantial harm to the competitive position of the person from 
whom the information was obtained. The Miami Herald Publg Co., 
670 F.2d at 613. In order to show a likelihood of substantial 
competitive harm, the agency must show (i) that the entity that 
will suffer harm is in actual competition, and (ii) that 
substantial competitive injury will result from disclosure. Id. at 
613-14. This does not require an actual adverse effect on 
competition, but the court must exercise its judgment in light of 
the nature of the material sought and the competitive 
circumstances. Id. 
(1) Identity of Key Personnel: FEMA redacted from the 
disclosure of its Contract documents the names and positions/titles 
of the Contractors key personnel pursuant to Exemptions 4 and 6. 
(Doc. #33 at 104; Doc. #34 at 108). Under the Contracts, these 
persons were considered essential to the work and could not be 
removed, replaced or diverted without notice and justification to 
FEMA. The declaration of FEMA employee Chandra Lewis (Doc. #37, 
Exhibit 4, p. 4) asserts that [t]he disclosure of these names 
would harm the competitive interest of the contractors because 
potential competitors could contact the individuals to gain 
information as to the inner workings of the organization, attempt 
to recruit the key personnel, or otherwise interfere with essential 
employees. Belated declarations (Docs. #52, Exhibits 2, 3) by the 
Contractors representatives agree with FEMAs evaluation of the 
information, using substantially the same verbiage. Further, the 
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Contractors assert that the information was voluntarily submitted 
to FEMA, and argue that disclosure would result in their objection 
to providing such information in the future. 
The Court concludes that FEMA has not met its burden of 
showing that disclosure of the names and positions/titles of the 
key personnel listed in the 2001 Contracts will likely impair the 
governments ability to obtain necessary information in the future 
or cause substantial harm to the competitive position of the two 
Contractors. The Contracts at issue have expired, and the names of 
key personnel may or may not be the same for future contracts. The 
affidavits by Hugh J. Inglis and Lawrence W. Olinger make no 
reference to any attempts by their respective employers to protect 
their interest in the key personnel, such as confidentiality 
agreements, non-compete agreements, or the like. Additionally, 
these declarations are conclusory, without factual support. 
The Contractors assert that the information was voluntarily 
presented to FEMA, apparently attempting to provide a basis for 
FEMA to argue that a different Exemption 4 standard applies. E.g., 
Delta Limited v. United States Customs & Border Prot. Bureau, 
F.Supp.2d , 2005 WL 2605599, *2 (D.D.C. Oct. 14, 2005). There 
is no evidence that providing the names of such key personnel to 
FEMA was voluntary in the ordinary sense. This identification of 
personnel, and the agreement with regard to their continued 
employment, was a negotiated term of a substantial contract and 
considered required. E.g., Martin Marietta Corp. v. Dalton, 974 
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F. Supp. 37, 39 (D.D.C. 1997). In any event, FEMA does not assert 
that this lower standard is applicable. 
FEMA also asserts that Exemption 6 protects the names of the 
Contractors key personnel. Ms. Lewiss Declaration asserts that 
there is no public interest to be served because release of the 
names could result in unwarranted invasions of privacy and the 
employees could become targets of inquiries pertaining to their job 
position, duties and coworkers. (Doc. #37, Exhibit 4, p. 4). Such 
concerns were apparently not sufficient as to FEMAs own employees, 
since FEMA has released the names and titles of its own key 
personnel in connection with the Contracts (Doc. #33 at 0092; Doc. 
#34 at 0096). The Court concludes that the names and business 
titles generate a very limited privacy interest, and disclosure is 
not an unwarranted invasion of whatever privacy interest which may 
exist.
(2) Compensation Rate: Pursuant to Exemption 4, FEMA redacted 
from the disclosure of its Contracts the amount of money the 
Contractors intended to pay its inspectors per inspection and the 
inspectors compensation rate. (Doc. #33 at 0109; Doc. #34 at 
0113). Elsewhere, the Contracts disclose the price per inspection 
(Doc. #33 at 0079-81; Doc. #34 at 0083-85), and FEMA disclosed the 
most recent increase in the cost per inspection. (Doc. #33 at 
0002; Doc. #34 at 0002). Other inspection rate information was 
also disclosed. (Doc. #34 at 0011). Further, at least one Florida 
newspaper has quoted a FEMA inspector, disclosing the rate FEMA 
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paid per inspection. 2004 Hurricane Season: Quality Checks Led to 
FEMA Firings, The Miami Herald, May 15, 2005, 2005 WLNR 7655773. 
The Court concludes that FEMA has not met its burden of 
showing that disclosure of the compensation rate negotiated in the 
2001 contracts will likely impair the governments ability to 
obtain necessary information in the future or cause substantial 
harm to the competitive position of the two contractors. 
(3) Section J Draft Plans: Pursuant to the deliberative 
process privilege of Exemption 5, FEMA withheld draft versions of 
the following portions of Section J of its contracts: the 
contractors Cultural Diversity Plan; the contractors Staffing 
Plan; the contractors Concept of Operations Plan; the contractors 
Quality Control Plan; the contractors Small Business and Small 
Disadvantaged Business Plan; and the contractors Phase-In Plan 
(Doc. #33 at 0121-22; Doc. #34 at 0125-26). FEMA has offered to 
produce the finalized plans after they have been reviewed for 
Exemption 4 material, but to date has failed to do so. 
FEMA disclosed portions of the Contract modifications which 
quoted paragraphs of some of these withheld provisions in their 
entirety. (Doc. #33 at 0011-13; 0014-19l 0032-34; Doc. #34 at 
0017-19; 0020-22; 0027-30; 0036-38; 0056-59). The Court doubts 
that a draft of a contract provision which is shared with third 
parties as part of contractual negotiations qualify under the 
deliberative process privilege. In any event, the draft 
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provisions were incorporated into the completed Contracts, and 
existed in draft form until mere months before the Contracts 
expired. Plaintiffs have offered to accept the finalized version 
of these Contract provisions, but FEMA has not yet produced them. 
The Court concludes that FEMA must produce either the draft 
versions or the final version. 
(4) Section K of Contract: Pursuant to Exemption 4, FEMA 
redacted the final version of Section K of the contracts, relating 
to Representations, Certifications, and Other Statements of 
Offerors. At oral argument plaintiffs withdrew their objections to 
the failure to disclose the tax identification numbers (Doc. #64, 
p. 88), and defendant conceded that the names of the company 
principals could not be withheld (id., p. 73). 
FEMA withheld the identity, quantity and value of certain 
government-owned equipment the contractors intended to use. (Doc. 
#44, Exhibit A, at 0203). However, when the Contract modifications 
were disclosed, some the withheld information was also disclosed. 
(Doc. #33 at 0002-04, 0028, 0097; Doc. #34 at 0002-04, 0034, 0101). 
The Court concludes that FEMA has not met its burden of 
showing that disclosure of the identity, quantity and value of 
certain government-owned equipment the Contractors intended to use 
in connection with the 2001 contracts will likely impair the 
governments ability to obtain necessary information in the future 
or cause substantial harm to the competitive position of the two 
contractors. 
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Accordingly, it is now 
ORDERED: 
1. Defendants Motion for Summary Judgment (Doc. #37) is 
GRANTED IN PART AND DENIED IN PART. 
2. Plaintiffs Motion for Summary Judgment (Doc. #46) is 
GRANTED IN PART AND DENIED IN PART. 
3. The Clerk of the Court shall enter judgment on the Second 
Amended Complaint (Doc. #27) as follows: 
(A) Count One of the Second Amended Complaint is dismissed as 
moot.
(B) As to Count Two of the Second Amended Complaint, the 
United States Department of Homeland Security, and its component 
the Federal Emergency Management Agency, shall provide defendants 
with accurate copies of the following documents or portions of 
documents: 
(1) August 13, 2004 Memorandum (Doc. #32 at 0065-0069), 
only sections captioned Event, Background, 
Attachment, Detailed Discussion, and State Map. 
(2) August 15, 2004 Memorandum (Doc. #32 at 0047-49, 
0054-56), only sections captioned Background and 
Attachments. 
(3) October 7, 2004 Memorandum (Doc. #32 at 0032-33), 
only the first three paragraphs of the Background 
section. 
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(4) The undated Talking Points (Doc. #32 at 0028, 0030) 
in its entirety. 
(5) The draft press releases (Doc. #32 at 0040, 0062) in 
their entirety. 
(6) Those portions of the Contracts relating to the 
identification of key personnel (Doc. #33 at 0104; Doc. 
#34 at 0108). 
(7) Those portions of the Contracts relating to 
compensation rate of inspectors (Doc. #33 at 0109; Doc. 
#34 at 0113). 
(8) The Section J draft plans to the Contracts concerning 
the Contractors Cultural Diversity Plan, the Staffing 
Plan, the Concept of Operations Plan, the Quality Control 
Plan, the Small Business and Small Disadvantaged Business 
Plan, and the Phase-In Plan (Doc. #33 at 0121-22; Doc. 
#34 at 0125-26), or at defendants option, the finalized 
version of these plans. 
(9) The portion of the Contracts relating to the 
identity, quantity and value of certain government-owned 
equipment the Contractors intended to use (Doc. #44 at 
0203). 
Otherwise, judgment as to Count Two shall be entered in favor of 
defendant. 
4. Documents required to be produced shall be produced on or 
before December 5, 2005, unless there is a notice of appeal filed 
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by defendant. If defendant does file a notice of appeal, 
disclosure of the documents set forth above will be stayed until 
the conclusion of the appeal. 
5. The Clerk shall close the case. 
DONE AND ORDERED at Fort Myers, Florida, this 4th day of 
November, 2005. 
Copies: 
Counsel of record 
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