NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TORRES CONSULTING AND LAW GROUP, LLC, Plaintiff

- Appellant,

v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

Defendant

- Appellee. No. 14

- 17303
D.C. No. 2:14

- cv - 00801

- MEA

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Mark E. Aspey, Magistrate Judge, Presiding Submitted November 17, 2016 ** San Francisco, California Before: THOMAS, Chief Judge, and GILMAN *** and FRIEDLAND, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 

# FILED

NOV 21 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Plaintiff Torres Consulting and Law Group (“Torres”) appeals the district court’s grant of summary judgment to NASA on Torres’s Freedom of Information
Act (“FOIA”) claim. Invoking FOIA Exemptions 4 and 6, NASA totally with held the requested contractor’s payroll records, and the district court affirmed. 5 U.S.C. § 552(b). We review de novo summary judgment decisions in FOIA cases

. Animal Legal Def

. Fund v. U.S. Food & Drug Admin

. , No. 13

- 17131, 2016 WL
4578362 (9th Cir. S ept. 2, 2016) [hereinafter ALDF ] (en banc) (per curiam). We reverse and remand.
I. Section (a) of FOIA generally obligates the government to disclose information to the public; section (b) contains nine exemptions to this general disclosure obligation. S ee 5 U.S.C. § 552(a)

- (b); Frazee v. U.S. Forest Serv. , 97 F.3d 367, 370 (9th Cir. 1996) , abrogated on other grounds by ALDF , 2016 WL
4578362 . Exemption 4 applies to matters that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). Information is confidential for the purposes of Exemption 4 if its disclosure is likely “to cause substantial harm to the competitive position of the person from whom the information was obtai ned.” GC Micro Corp. v. Def

. Logistics Agency , 33 F.3d 1109, 1112

- 13 (9th Cir. 1994) (citing Nat’l Parks &
Conservation Ass’n v. Morton , 498 F.2d 765, 770 (D.C. Cir. 1974 )), abrogated on3

other grounds by ALDF

, 2016 WL 4578362

. Information will result in substantial competitive injury if it “‘would allow competitors to estimate, and undercut, [the firm’s] bids.’” Id. at 1115 (quoting Gulf & W. Indus., Inc. v. United States , 615 F.2d 527, 530 (D.C. Cir. 1979)). The parties here dispute whether releasing th e requested information would likely cause substantial competitive injury to RTD Construction, Inc. (“RTD”) , and they submitted competing evidence on this question to the district court. Sitting en banc, we recently held that “if there are genuine issues o f material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing. Resolution of factual disputes should be through the usual crucible of bench trial or hearing, with evidence subject to scrutiny and witnesses subject to

cross - examination.” ALDF , 2016 WL 4578362 at *2. We have characterized the substantial

- competitive

- harm determination as a factual question. See Animal Legal Def

. Fund v. U.S. Food & Drug Admin. , No.13

- 17131, 2016 WL 5827463, at *1 (9th Cir. Sept. 3 0, 2016) [hereinafter ALDF Panel Opinion ] (per curiam);
ALDF , 2016 WL 4578362 , at * 1 ; Lion Raisins Inc. v. U.S. Dep’t of Agric. , 354 F.3d 1072, 1078 (9th Cir. 2004), abrogated on other grounds by ALDF , 2016 WL
4578362

. I n ALDF itself

, we concluded that competing declarations offered by the parties raised a dispute of material fact as to competitive harm. ALDF Panel4

Opinion , 2016 WL 5827463, at *1. Accordingly, we reversed the grant of summary judgment and remanded for further proceedings. Id. The same issue of material fact exists in this case. Here, as in ALDF , the parties submitted competing declarations , with equivalent levels of detail and based on equivalent levels of knowledge, about whether the release of the requested information would cause c ompetitive harm. Torres also requested a hearing at which to present more evidence

. We reverse as to Exemption 4 and remand for further proceedings to resolve the dispute of material fact on the issue of competitive harm.
II. FOIA Exemption 6 applies to “ 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). To determine whether disclosing the information would constitute a clearly unwarrant ed invasion of personal privacy,

“ ‘ we must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure. ’ ” Prudential Locations LLC v. U.S. Dep’t of Hous

. & Urban Dev

. , 739 F.3 d 424, 430 (9th Cir. 2013) (per curiam) (quoting Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence , 639 F.3d 876, 886 (9th Cir. 2010) , abrogated on other grounds by ALDF , 2016 WL 4578362 ), abrogated on other grounds by ALDF , 2016 WL5

4578362 . This balancing test involves two steps. At the first step, the agency must prove that there is more than a de minimis personal privacy interest. Id. ; Yonemoto v. Dep’t of Veterans Affairs , 686 F.3d 681, 694 (9th Cir. 2012 ), abrogated on other grounds by ALDF

, 2016 WL 4578362

. If the privacy interest is more than de
minimis , the court goes on to the second step, where it balances that privacy interest with the public interest in disclosure. But i f the agency does not establish that disclosing the info rmation would invade a non

- trivial privacy interest, then “FOIA demands disclosure, without regard to any showing of public interest.”
Yonemoto , 686 F.3d at 694; see also Prudential Locations , 739 F.3d at 430. Here, Torres does not contest that the inform ation it seeks is a “similar file” to medical or personnel files, within the meaning of Exemption 6. Torres does dispute, however, that there is a ny privacy interest in the documents it seeks once all of the information that identifies a particular indivi dual

— names, addresses and social security numbers

— ha s been redacted , as Torres concedes it should be

. The Supreme Court has interpreted Exemption 6 as covering only information that is linked to an identifiable person. See , e.g. , U.S. Dep’t of State v. Ray , 502 U.S. 164,
175

- 76 (1991) (disclosure of highly personal information “constitutes only a de
minimis invasion of privacy when the identities” are unknown); U.S. Dep ’ t of State v. Wash

. Post Co. , 456 U.S. 595, 602 n.4 (1982) (explaining that “[i]nform ation unrelated to any particular person presumably would not satisfy the threshold test”6

for a privacy interest under Exemption 6); Dep ’ t of Air Force v. Rose , 425 U.S.
352 , 375

- 76 (1976) (explaining that Exemption 6 is “intended to cover detailed
Governm ent records on an individual which can be identified as applying to that individual and not the facts concerning the award of a pension or benefit or the compilation of unidentified statistical information from personal records” ) (quoting H.R. Rep. No. 149 7, 89th Cong., 2d Sess., 11 (1966), U.S. Code Cong. & Admin. News 1966, p.2428) (emphasis added)

. In light of the se precedent s , any privacy interest in payroll data after names, addresses, and social security numbers are redacted is trivial. Thus, “FOIA demands disclosure, without regard to any showing of public interest.” Yonemoto , 686 F.3d at 694. 1 Accordingly, we reverse the district court’s judgment as to Exemption 6 , which was the only exemption NASA invoked to withhold tax deduction, tax withhold ing, and net earnings information

. 2 On remand, the district court should reconsider the issue of segregability after determining whether NASA properly invoked Exemption 4 to withhold workers’ job classification s , date s and hours worked, total hours worked, rate s of pay, gross earnings information , and whether the pay was standard or overtime

.

1 We therefore do not reach the parties’ arguments about public interest. 2 Although we hold that Exemption 6 does not apply to gross earnings, NASA also invoked Exemption 4 to withhold that information , so that category of informat ion will need to be considered further on remand

.7

T orres request ed attorney’s fees in its brief . Such a request must be made in accordance with Ninth Circuit Rule 39

- 1.6. For the foregoing reasons we REVERSE and REMAND.