* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JEWEL FORD,

Plaintiff-Appellant,

v. TOGO D. WEST, JR., Department of the Army, Fitzsimmons Army Medical Center,

Defendant-Appellee. No. 97-1342 (D.C. No. 96-N-2621) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Jewel Ford appeals the district court’s g rant of summary judgment in favor of defendant, the Secretary of the Departm ent of the Army, on plaintiff’s claims brought pursuant to the Freedom of Informati on Act, 5 U.S.C. § 552 (FOIA). We affirm. On August 9, 1996, plaintiff, an African-American, discovered a noose hanging over a chair in an employee break room at F itzsimmons Army Medical Center. Believing the noose to be directed at him because of his race, plaintiff reported the incident, and the Army initiated an in vestigation. The investigation concluded the noose was not directed at plaintiff, but was a practical joke directed at a coworker based on comments made during a game of dominoes. On October 21, 1996, plaintiff filed a FOIA requestwith defendant, seeking release of all documents relating to the in vestigation. Several days later, defendant received a FOIA request for the same info rmation from one of plaintiff’s coworkers. On October 28, 1996, defend ant released fifty-two pages of documents, with certain information redacted to protect individual privacy under the exemption contained in § 552(b)(6). Defe ndant also withheld a document concerning the results of the investigatio n, written by Captain Michele Hately, based on the attorney-client work product e xemption contained in § 552(b)(5). Defendant informed plaintiff that the withheld information had been forwarded to a higher authority for determination w hether it should be released.-3-

On November 13, 1996, plaintiff filed this action i n the district court seeking unredacted versions of the information prov ided to him, a copy of the Hately memorandum, and attorney fees. In late Dece mber 1996, defendant determined that plaintiff was entitled to the Hatel y memorandum and provided him with a copy. Plaintiff was advised of his right to appeal the denial of his request for unredacted copies of the fifty-two page s already provided. The redacted information consists of (1) the names of the person who hung the noose and the two employees who refused to identify that person; (2) personal information about the person who hung the noose; (3 ) proposed discipline of the coworkers who refused to identify the perpetrator; (4) plaintiff’s medical diagnosis; (5) social security numbers of those int erviewed; and (6) perceptions by coworkers about plaintiff’s work habits and stat ements attributed to coworkers by plaintiff. For some reason, on certain pages th e names of the coworkers who withheld information about the perpetrator were notredacted. In February 1997, defendant moved for summary judgm ent, raising as an additional ground the FOIA exemption contained i n § 552(b)(7)(C), for information compiled for law enforcement purposes. In September 1997, the district court granted summary judgment in favor of defendant, finding no need to review the unredacted documents in camera, and c oncluding the redacted information was properly withheld under both §§ 552 (b)(6) and (7)(C). The court-4-

granted defendant’s motion to strike two paragraphs of plaintiff’s supporting affidavit concerning prior racial charges against d efendant. This appeal followed. We review the district court’s summary judgment on a FOIA claim de novo, so long as the decision rests on an adequate factual basis. See Audubon Soc’y v. United States Forest Serv. , 104 F.3d 1201, 1203 (10th Cir. 1997). FOIA is to be broadly construed in favor of disclosure, and th e government bears the burden of justifying nondisclosure under a particular FOIA exemption. See id. Defendant relies on FOIA exemption 6, which prohibi ts disclosure of information in “personnel and medical files and sim ilar files the disclosure of which would constitute a clearly unwarranted inv asion of personal privacy,” 5 U.S.C. § 552(b)(6), and exemption 7(C), which pro hibits disclosure of “records or information compiled for law enforcement purpose s, but only to the extent that the production of such . . . information . . . could reasonably be expected to constitute an unwarranted invasion of personal p rivacy,” 5 U.S.C. § 552(7)(C). Plaintiff argues neither of these exemptions applie s because the requested file is not “similar” to personnel or medical files , and because it was not compiled for law enforcement purposes. We disagree. A file is a “similar file” under exemption 6 if it contains personal information that “applies to a particular individual.” United States Dep’t of State v. Washington Post Co. , 456 U.S. 595, 600-02 (1982). Defendant’s investigatory file cont ained information personal to-5-

plaintiff, his coworkers, and the person who hung the noose. Further, the file was one compiled for law enforcement purposes, as the investigation centered on determining if illegal racial harassment occurre d. To decide whether either exemption prevents disclos ure, we must “balance the public interest in disclosure against the inter est Congress intended the [e]xemption to protect.” United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 776 (1989). The privacy interest p rotected by exemptions 6 and 7 encompasses an individual’s i nterest in avoiding disclosure of personal matters through identifying information. See id. at 762, 766-71 (exemption 7); Department of the Air Force v. Rose , 425 U.S. 352, 380-81 (1976) (exemption 6). The information withheld by defendant falls within this protection: names and social security numbers; a medical diagnosis; c oworkers’ thoughts, sentiments and emotions; discipline of coworkers; and informat ion that would enable others to identify the perpetrator. See 5 U.S.C. § 552(b)(6) (protecting medical information); Rose , 425 U.S. at 380-81 (holding exemption 6 protects names and other identifying information, as viewed by colleag ues familiar with the subject’s history, including disciplinary actions); Reporters Comm. , 489 U.S. at 763, n.15 (noting common law protection for “thoughts, sentim ents, and emotions”); KTVY-TV v. United States , 919 F.2d 1465, 1469-70 (10th Cir. 1990) (holding-6-

coworkers interviewed after shooting had legitimate privacy interest in nondisclosure of their identities). Even the information that is personal to plaintiff is protected from disclosure, as the iden tity of the FOIA requester is irrelevant to the information disclosed, and every member of the public is entitled to the same information. See Reporters Comm. , 489 U.S. at 771. The Supreme Court has narrowly defined the “public interest” in FOIA cases, as “the extent to which disclosure would serve the core purpose of the FOIA, which is contribut[ing] significantly to the public understanding of the operations or activities of the government.” United States Dep’t of Defense v. Federal Labor Relations Auth. , 510 U.S. 487, 495 (1994) (quotations and emphasis omitted). Plaintiff argues that the publi c’s interest in knowing how defendant investigates a claim of racial harassmentoutweighs the privacy interests protected by FOIA exemptions 6 and 7. We conclude the public interest in disclosing the r edacted material is low, as disclosure would not lead to a better understand ing of defendant’s activities in this case. The redacted pages are sufficient to in form the public about defendant’s response to a racial harassment claim, disclosing interviews of coworkers, the discipline of those coworkers who refused to identify the perpetrator, and the evidence upon which defendant relied to conclude the incident was not racially motivated. See, e.g. , United States Dep’t of State v.-7-

Ray , 502 U.S. 164, 178-79 (1991) (holding redacted rep orts of interviews with Haitian returnees sufficiently informed readerabout State Department’s performance of duties, disclosure of names and othe r identifying information would not add to this goal; mere suggestion that re ports might be inaccurate did not justify disclosure). Given the low public inte rest in disclosure, the balance tips in favor of protecting the privacy of the subj ects of the file, and the redacted information was properly withheld. Plaintiff argues that defendant’s incomplete redact ion of certain names and negative opinions of his work ethics somehow waives the protection of the FOIA exemptions. No authority is cited for this proposi tion, and we have found none. We conclude defendant’s inadequate redactions do no t operate to waive the personal privacy interests of the individuals discu ssed in the investigative file. Further, the fact that some of the information has been obtained through other channels, such as through the EEOC investigation, d oes not change its protected status under FOIA. See Reporters Comm. , 489 U.S. at 770 (holding information was protected although it had once been public, not ing “the fact that an event is not wholly ‘private’ does not mean that an individu al has no interest in limiting disclosure or dissemination of the information”) (quotations omitted); L&C Marine Transp., Ltd. v. United States , 740 F.2d 919, 922-23 & n.4 (11th Cir.-8-

1984) (noting witnesses did not lose privacy intere st under exemption 7(C) just because identities could be discovered through othe r means). Plaintiff argues that the district court erred in f ailing to conduct an in camera review of the unredacted documents. Suchreview is discretionary, however. See Hale v. United States Dep’t of Justice , 99 F.3d 1025, 1029 n.4 (10th Cir. 1996). We find no abuse of discretion i n the court’s relying on defendant’s declaration, which set out the reason f or each redaction, to determine the exempt nature of the redacted information. Alt hough such a document is to be disregarded upon a showing of agency bad faith, req uiring in camera review, “‘the mere allegation of bad faith’ should not ‘und ermine the sufficiency of agency submissions.’” Minier v. Central Intelligence Agency , 88 F.3d 796, 803 (9th Cir. 1996) (quoting Carter v. United States Dep’t of Commerce , 830 F.2d 388, 393 (D.C. Cir. 1987)). We decline plaintiff’s invitation to review the documents in camera on appeal, as the district court’s order provided a sufficient basis upon which to predicate our review. See Hale , 99 F.3d at 1029 n.4. Plaintiff argues the district court improperly stru ck two paragraphs of his affidavit, arguing that his “prior EEO successes an d the way that [plaintiff’s] allegations of racism were handled by the Army in t he past [were] important to the district court’s balancing as to whether or notthere was a public interest in disclosure.” Appellant’s Br. at 31. The balancing of interests does not, however,-9-

turn on the purpose for which the FOIA request for information is made. See Reporters Comm. , 489 U.S. at 771-72, 775. Thus, the EEOC history between plaintiff and defendant is irrelevant to the inquiry, and the district court did not abuse its discretion in striking this informati on from plaintiff’s affidavit. We do not address plaintiff’s arguments regarding attorneys fees, as he has not substantially prevailed in this litigation. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge