FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOREST SERVICE EMPLOYEES FOR 

ENVIRONMENTAL ETHICS,

Plaintiff-Appellant, No. 05-36221

v. D.C. No.  CV-05-06015-MRH UNITED STATES FOREST SERVICE, an

agency of the U.S. Department of OPINION

Agriculture,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

December 6, 2007—Portland, Oregon

Filed May 1, 2008

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain

4705
COUNSEL

David A. Barr, Western Environmental Law Center, Eugene,

Oregon, argued the cause for the plaintiff-appellant and filed

briefs. 

Steve Frank, Appellate Staff, Civil Division, United States

Department of Justice, Washington, DC, argued the cause for

the defendant-appellee and filed a brief; Leonard Schaitman,

Appellate Staff, Civil Division, United States Department of

Justice, Washington DC, Karen J. Immergut, United States

Attorney, Portland, Oregon, and Peter D. Keisler, Assistant

Attorney General, United States Department of Justice, Washington, DC, were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We are called upon to decide whether the United States

Forest Service must publicly release the identities of agency

personnel who responded to a wildfire that killed two Forest

Service employees. 

I

On July 20, 2003, the Forest Service engaged a wildfire in

the Salmon-Challis National Forest in Idaho, which would

later become known as the “Cramer Fire.” Two days later,

4708 FOREST SERVICE EMPLOYEES v. USFS
Forest Service firefighters Shane Heath and Jeff Allen perished as they fought the blaze. 

Four federal agencies investigated the incident: The Occupational Safety and Health Administration (“OSHA”), the

Office of the Inspector General of the Department of Agriculture (“OIG”), the United States Attorney for the District of

Idaho, and the Forest Service itself. OSHA issued multiple

citations against the Forest Service for creating unsafe working conditions and issued a 45-page report criticizing the

agency’s response to the fire. The OIG released a 12-page

report which was similarly critical of the Forest Service’s

actions. In addition, the United States Attorney filed criminal

charges against Incident Commander Alan Hackett, who led

the team that fought the fire. Finally, the Forest Service conducted its own investigation and produced an accident report

(the “Cramer Fire Report”). The report contained a detailed

narrative of the agency’s response to the fire as well as findings that the Forest Service’s own management failings contributed to the tragedy. 

On January 12, 2004, the Forest Service Employees for

Environmental Ethics (“FSEEE”), a self-described public

interest watchdog organization, filed a Freedom of Information Act (“FOIA”) request with the Forest Service seeking the

release of the Cramer Fire Report. See 5 U.S.C. § 552. The

Forest Service complied with the request, but redacted the

names of all twenty-three Forest Service employees identified

in the Report. The agency cited FOIA Exemption 6, which

enables the government to withhold “personnel and medical

and similar files” that implicate personal privacy, as justification for the redactions. See id. § 552(b)(6). The FSEEE filed

an administrative appeal, which the Forest Service denied. 

Some time later, the Forest Service announced that it had

decided to discipline six employees involved in the incident,

but withheld their identities due to privacy concerns. In addition, the identities of several employees named in the Report

FOREST SERVICE EMPLOYEES v. USFS 4709
become known in various ways. First, Incident Commander

Hackett waived any right to confidentiality and the Forest

Service released a revised Report with all references to

Hackett unredacted.1 In addition, an unredacted copy of the

Cramer Fire Report was leaked to the family of one of the

deceased firefighters. The Forest Service discovered the leak

and disciplined the Forest Service employees responsible.

Finally, the OSHA report identified several Forest Service

employees who held positions of responsibility during the

incident. 

The FSEEE filed a complaint in the District Court for the

District of Oregon seeking an unredacted copy of the Cramer

Fire Report. On cross-motions for summary judgment, the

district court concluded that Exemption 6 authorized the Forest Service to withhold the identities of the employees named

in the Report in the interests of their personal privacy. The

district court found that employees subject to disciplinary

sanctions as well as those who merely served as cooperating

witnesses had privacy interests in avoiding the “embarrassment, shame, stigma, and harassment” that would arise from

their public association with the Cramer Fire and further

found that the release of such employees’ identities would not

materially contribute to the public’s understanding of the

event. The FSEEE timely filed this appeal. 

II

[1] FOIA was enacted to facilitate public access to government records. John Doe Agency v. John Doe Corp., 493 U.S.

146, 151 (1989). As the Supreme Court has explained, the

statute’s purpose is “to pierce the veil of administrative

secrecy and to open agency action to the light of public scruti1Hackett was placed on federal probation for eighteen months and was

terminated by the Forest Service. As part of his criminal pretrial diversion

program, Hackett agreed to waive his right to confidentiality regarding the

reasons for his termination. 

4710 FOREST SERVICE EMPLOYEES v. USFS
ny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(internal quotation marks and citation omitted). Thus, among

other things, FOIA requires every federal entity presented

with a request for records under the statute to make such

records “promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). However, this requirement does not apply if

the requested information falls within one of nine exemptions.

Id. § 552(b). 

[2] One such exemption, Exemption 6, provides that government entities may withhold information from “personnel

and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal

privacy.” Id. § 552(b)(6). The district court concluded that the

Cramer Fire Report was a “similar file” subject to this exemption and that the disclosure of the identities of the employees

named in the report would constitute a “clearly unwarranted”

invasion of their privacy. We consider each conclusion in

turn. 

A

[3] The phrase “similar files” has a “broad, rather than a

narrow meaning.” U.S. Dep’t of State v. Wash. Post Co., 456

U.S. 595, 600 (1982). As such, we have previously held that

“[g]overnment records containing information that applies to

particular individuals satisfy the threshold test of Exemption

6.” Van Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d

1270, 1273 (9th Cir. 1984). Specifically, we have classified a

list of the names and home addresses of federal employees as

a “similar file” under this exemption. Id.; see also U.S. Dep’t

of Def. v. FLRA, 510 U.S. 487, 494, 500-01 (1994) (concluding that the home addresses of federal employees could be

withheld under Exemption 6). And, other courts of appeals

have determined that the names of agency personnel may be

withheld from responses to FOIA requests under Exemption

6. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 198-99 (D.C.

Cir. 2006) (holding that Exemption 6 authorized the FDA to

FOREST SERVICE EMPLOYEES v. USFS 4711
redact the names of agency personnel from documents

released in response to a FOIA request for records related to

the abortifacient drug, RU-486); Wood v. FBI, 432 F.3d 78,

86 (2d Cir. 2005) (holding that Exemption 6 authorized the

Justice Department to redact the names of investigating personnel from an administrative investigation report detailing

the discipline of two FBI agents). Accordingly, we have little

difficulty in concluding that the names and identifying information contained in the Cramer Fire Report meet the “similar

file” requirement of Exemption 6. 

B

Having determined that the Cramer Fire Report satisfies

this threshold test, we next consider whether the disclosure of

the employees’ identities would constitute a “clearly unwarranted” invasion of their personal privacy. 5 U.S.C.

§ 552(b)(6). In conducting this inquiry, we “ ‘balance the public interest in disclosure against the interest Congress intended

the [e]xemption to protect.’ ” Dep’t of Def., 510 U.S. at 495

(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 776 (1989)).2

 Two guideposts are

critical to our analysis. First, “the only relevant ‘public interest’ ” is the extent to which disclosure would “ ‘contribut[e]

significantly to public understanding of the operations or

activities of the government.’ ” Id. (emphasis omitted) (quot2The balancing of public and private interests under Exemption 6 mirrors that which applies under Exemption 7(C). Id. (citing Reporters

Comm., 489 U.S. at 775). Exception 7(C) permits the withholding of “records or information compiled for law enforcement purposes” that “could

reasonably be expected to constitute an unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(7)(C). The Supreme Court has interpreted

Exemption 7(C) as “more protective of privacy” than Exemption 6, Dep’t

of Def, 510 U.S. at 497 n.6, but explained that the only distinction between

the balancing tests applied to them is the “magnitude of the public interest” required to override the respective privacy interests they protect. Id.

Accordingly, precedents that apply Exemption 7(C) are relevant to our

analysis of Exemption 6 insofar as they identify cognizable public and private interests, even if their balancing of such interests is less instructive.

4712 FOREST SERVICE EMPLOYEES v. USFS
ing Reporters Comm., 489 U.S. at 775). In other words, “information about private citizens that is accumulated in various

governmental files but that reveals little or nothing about an

agency’s own conduct” is not the type of information to

which FOIA permits access. Id. at 495-96 (citations and internal quotation marks omitted). 

Second, the reasons why the FSEEE seeks the identities of

the Forest Service employees are irrelevant to our inquiry.

“ ‘[W]hether an invasion of privacy is warranted cannot turn

on the purposes for which the request for information is

made.’ ” Id. at 496 (emphasis in original) (quoting Reporters

Comm., 489 U.S. at 771). FOIA provides every member of

the public with equal access to public documents and, as such,

information released in response to one FOIA request must be

released to the public at large. Id. (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). Accordingly, we consider the consequences of disclosure of the employees’

identities to the entire public.3

1

We begin with the privacy interests of the Forest Service

employees. At the outset, we note that while the privacy interests of public officials are “somewhat reduced” when compared to those of private citizens, “individuals do not waive

all privacy interests . . . simply by taking an oath of public

office.” Lissner v. U.S. Customs Serv., 241 F.3d 1220, 1223

(9th Cir. 2001) (citation omitted). 

3As a preliminary matter, we reject the FSEEE’s contention that the

unauthorized leak of the unredacted Cramer Fire Report or OSHA’s decision to identify certain employees in its own report diminishes the Forest

Service’s ability to apply Exemption 6 to redact the identities from the

Report. See Dep’t of Def., 510 U.S. at 500 (rejecting the argument that

information publicly available through sources cannot be withheld under

Exemption 6 if the exemption’s requirements are otherwise met); Reporters Comm., 489 U.S. at 767-68 (reaching the same conclusion under

Exemption 7(C)). 

FOREST SERVICE EMPLOYEES v. USFS 4713
[4] In the past, we have recognized that a government

employee’s privacy interests may be diminished in cases

where information sought under FOIA would likely disclose

“official misconduct.” See id. at 1223-24 (holding that reports

describing the arrests of two city police officers for smuggling

steroids could not be withheld under Exemption 6); Dobronski v. FCC, 17 F.3d 275, 278-79 (9th Cir. 1994) (concluding

that an FCC assistant bureau chief’s privacy interests were

“nominal” where a FOIA requester sought the official’s work

attendance and sick leave records to demonstrate that she had

taken unaccrued sick time). In addition, we have placed

emphasis on the employee’s position in her employer’s hierarchical structure as “lower level officials . . . generally have a

stronger interest in personal privacy than do senior officials.”

Id. at 280 n.4 (citing Hunt v. FBI, 972 F.2d 286, 289 (9th Cir.

1992)); see also Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir.

1984) (reasoning that the “level of responsibility held by a

federal employee . . . [is an] appropriate consideration[ ] for

determining the extent of the public’s interest in knowing the

identity of that censured employee” (citation omitted)). 

[5] As the district court explained, the twenty-two employees identified in the Cramer Fire Report were “low and midlevel” employees. In addition, although the Forest Service has

disciplined six of these employees, none has been accused of

official misconduct and the remaining employees were merely

cooperating witnesses. Accordingly, we agree with the district

court that neither the employees’ status as civil servants nor

the Forest Service’s disciplinary decisions strip them of their

privacy interests under Exemption 6. 

[6] Second, we consider the district court’s conclusion that

the employees possessed privacy interests in avoiding the

“embarrassment, shame, stigma, and harassment” that would

arise from their public association with the incident. The

avoidance of harassment is a cognizable privacy interest

under Exemption 6. We have previously construed the

exemption to protect against the harassment associated with

4714 FOREST SERVICE EMPLOYEES v. USFS
unwanted commercial solicitations. See Painting Indus. of

Haw. Mkt. Recovery Fund v. Dep’t of Air Force, 26 F.3d

1479, 1483 (9th Cir. 1994); Minnis v. U.S. Dep’t of Agric.,

737 F.2d 784, 787 (9th Cir. 1984). The Supreme Court recognized a similar interest in Department of Defense, where it

held that Exemption 6 authorized the Defense Department to

withhold the home addresses of its employees from its

response to a FOIA request filed by the unions representing

the employees. 510 U.S. at 502. Noting that the unions sought

this information precisely because nonunion employees had

decided not to share it with them, the Supreme Court found

it “clear” that such employees had “some nontrivial privacy

interest in nondisclosure, and in avoiding the influx of unionrelated mail, and, perhaps, union-related telephone calls or

visits, that would follow disclosure.” Id. at 501 (emphasis in

original). 

[7] In this case, the potential for harassment that drew the

district court’s attention was that which would be presented

by the media, curious neighbors, and the FSEEE itself. By its

own admission, the FSEEE plans to contact the Forest Service

employees named in the Report if their identities are disclosed. Moreover, in light of the significant public attention

the Cramer Fire received, it is likely that the media and others

would join the FSEEE in such pursuit. The fact that the record

does not indicate that any of the employees have spoken out

in the five years since the incident occurred leads us to conclude that such contacts would be unwanted. 

[8] In addition, we recognize that disclosure of the employees’ identities may also subject them to embarrassment and

stigma. The Forest Service’s response to the Cramer Fire was

met with heavy criticism, particularly because the fire claimed

the life of two Forest Service employees. Therefore, the public association of the employees with this tragedy would subject them to the risk of embarrassment in their official

capacities and in their personal lives. 

FOREST SERVICE EMPLOYEES v. USFS 4715
[9] We conclude that such privacy interests are cognizable

under Exemption 6. See Wood, 432 F.3d at 88 (holding that

government employees’ “interest against possible harassment

and embarrassment . . . raises a measurable privacy concern

that must be weighed against the public’s interest in disclosure”); Stern, 737 F.2d at 91-92 (determining that government

agents who were censured but not criminally charged had a

privacy interest in avoiding “embarrassment or stigma” that

would arise from the release of their identities). And, as the

Supreme Court has held, “some nontrivial privacy interest” is

sufficient to justify the withholding of information under

Exemption 6 unless the public interest in disclosure is sufficient to outweigh it. Dep’t of Def., 510 U.S. at 501. 

2

[10] Satisfied that privacy interests are at stake here, we

turn to the public interests asserted by the FSEEE. We emphasize that “the only relevant public interest” under Exemption

6 is the extent to which the information sought would

“ ‘she[d] light on an agency’s performance of its statutory

duties’ or otherwise let citizens know ‘what their government

is up to.’ ” Id. at 497 (quoting Reporters Comm., 489 U.S. at

773). Thus, to compel the disclosure of the Forest Service

employees’ identities, such information must “appreciably

further” the public’s right to monitor the agency’s action. Id.

at 497; see also Hopkins v. U.S. Dep’t of Hous. & Urban

Dev., 929 F.2d 81, 88 (2d Cir. 1991) (concluding that “disclosure of information affecting privacy interests is permissible

only if the information reveals something directly about the

character of a government agency or official” (emphasis in

original) (citation omitted)). 

The FSEEE contends that disclosure of the employees’

identities will advance several public objectives. First, it

argues that disclosure will allow the public to determine

whether the Forest Service reassigned employees identified in

the Cramer Fire Report to non-firefighter positions as a result

4716 FOREST SERVICE EMPLOYEES v. USFS
of the incident. Second, the FSEEE suggests that disclosure

will allow the public to ascertain whether such employees

were adequately trained. Finally, the FSEEE contends that the

revelation of the employees’ identities will allow the public to

“determine whether the Forest Service accurately recounted

the incident in the Cramer Fire Report,” to “reconcile inconsistencies,” and to “shed additional light on what happened

and how it can be prevented in the future” by, among other

things, conducting “interviews with the participants.” 

To the extent that the FSEEE seeks to conduct its own

investigation of the Cramer Fire, we note that four federal

agencies have investigated the incident and produced three

publicly-available reports. As such, the FSEEE “already ha[s]

a substantial amount of the information they seek,” and we

will not require the disclosure of the employees’ identities

unless the “marginal additional usefulness” of such information is sufficient to overcome the privacy interests at stake.

Painting Indus., 26 F.3d at 1486. 

Both OSHA and OIG have investigated the training

received by the Forest Service employee and reported findings to the public. Moreover, the Forest Service’s subsequent

personnel actions raise strong privacy interests that are not

overcome by the public’s marginal interest in conducting

another investigation of the agency’s response to the tragedy.

In addition, by the FSEEE’s own admission, the identities of

the employees alone will shed no new light on the Forest Service’s performance of its duties beyond that which is already

publicly known. Instead, the FSEEE seeks to contact these

employees itself to determine what occurred at the Cramer

Fire and to confirm the veracity of the publicly-available

reports. We have previously expressed skepticism at the

notion that such derivative use of information can justify disclosure under Exemption 6. In Painting Industry, a labor

organization sought the release of payroll records submitted

to the Air Force by a government contractor working on an

Air Force base for the purpose of determining whether the Air

FOREST SERVICE EMPLOYEES v. USFS 4717
Force was diligently enforcing a federal wage statute. Id. at

1481. Direct contact with the employees was necessary to

accomplish the organization’s goal. Id. at 1484-85. We held

that Exemption 6 authorized the Air Force to withhold the

payroll records because the only “additional public benefit”

the release of the employees’ personal information would provide was “inextricably intertwined” with the invasion of the

employees’ privacy. Id. at 1485. 

[11] The public benefit the FSEEE asserts and the privacy

interests of the Forest Service employees are equally inseparable. Under the FSEEE’s theory, the only way the release of

the identities of the Forest Service employees can benefit the

public is if the public uses such information to contact the

employees directly. As we held in Painting Industry, such use

cannot justify the release of the information the FSEEE seeks.

[12] In addition, we are not persuaded that direct contact

with the employees would produce any information that has

not already been revealed to the public through the four investigations that have already occurred and the three reports that

have been publicly released. See U.S. Dep’t of State v. Ray,

502 U.S. 164, 178-79 (1991) (applying Exemption 6 to withhold the identities of Haitian refugees interviewed in State

Department reports where there was no indication that an

additional round of interviews by the FOIA requester “would

produce any relevant information that is not set forth in the

documents that have already been produced”). The Cramer

Fire Report extensively describes the Forest Service’s actions

during each hour of the blaze, and the OSHA and OIG reports

are similarly thorough. We generally accord government

records a “presumption of legitimacy.” Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (citing

Ray, 502 U.S. at 178-79). Moreover, OSHA and the OIG had

little to gain from withholding criticism of the Forest Service,

as their pointed and disapproving conclusions indicate. As a

result of the substantial information already in the public

domain, we must conclude that the release of the identities of

4718 FOREST SERVICE EMPLOYEES v. USFS
the employees who participated in the Forest Service’s

response to the Cramer Fire would not appreciably further the

public’s important interest in monitoring the agency’s performance during that tragic event. 

III

[13] Balancing the privacy interests at stake against the

public interest involved, we conclude that the Forest Service

is not required to release the identities of the employees

named in the Cramer Fire Report. Accordingly, the district

court’s grant of summary judgment in favor of the Forest Service is 

AFFIRMED.

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