F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P R U D E N T I A L L O C A T I O N S L L C, a Hawaii limited liability

company , Plaintiff-Appellant

,

v

.

U.S. D E P A R

T M E N T O F H O U S I

N G A N D U R B A N D E V E L O P M E

N T , Defendant-Appellee

. N o. 09-16995

D.C. No. 1:09-cv-00128- SOM-KSC

OPI NI ON

A ppeal from the United States District Court for the District of Hawai’i Susan Oki Mollway , Chief District J udg e, Presiding

Arg ued and Submitted F e bruary 15, 2011—Honolulu, Hawaii Rearg ued and Resubmitted March 9, 2012—Pasadena, California

F iled October 9, 2013

B e fore: A. W allace Tashima, W illiam A. F letcher, and Marsha S. B erz on, Circuit J udg es.

Per Curiam Opinion; Dissent by J udg e B erz onP R U D E N T I A L L O C A T I O N S L L C V

. HUD 2

SUMMARY *

F reedom of

Inf orm a tion Act

The panel affirmed the district c ourt’s summary judg ment in favor of the U.S. Department of Housing a nd Urban Development and held that Ex emption 6 of the F ree d o m o f I nformation Act justified the ag e n cy ’ s decision to redact identify ing information.

P laintiff filed a F reedom of I nformation Act (“F OI A ” ) request with HUD, asking it t o d isclose the names of the individuals who had complained t o H U D that plaintiff h ad violated the Real Estate Set t lement Procedures Act. The panel h e ld that the identity of a person complaining to a federa l
ag en cy about a violation of law is protected from disclosure under Ex emption 6 of F OI A

.

J udg e B erz on dissented, a nd would remand to the district
court for further factual development because t h e present record is inadequate to confirm the ex istence of any personal privacy interest to justify invocation o f F OI A’s Ex emption 6.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 3

COUNSEL

J ason H. Kim (arg

ued), Schneider W allace Cottrell B ray ton Konecky

, L L P, San F rancisco, California; Paul Alston, Alston Hunt F loy d & I ng , H o n o lulu, Hawaii, for PlaintiffAppellant.

Steve F rank ( arg ued), U nited States Department of J u s t ice, Civil Division, W ashing ton, D.C., for Defendant-Appellee.

OP INION

PER CURI AM:

The question in this case is whet h er the identity of a person complaining to a federal ag ency about a violatio n o f law is protected from d isclosure u nder Ex e mption 6 of the F reedom of I nformation Act (“F OI A”). Plaintiff Prudential L ocations (“Prudential”) filed a F OI A request w i t h the U.S. Department of Housing and Urban Developm e nt (“HUD”), asking it to disclose the names of the indi viduals who h ad complained to H U D that Prudential h ad violated the Real E s t ate Settlement Procedures Act ( “RESPA”). (Fo r convenience, we will use the plural even thoug h it is possible that the two complaints were written by the same person.) HUD invoked Ex emption 6 to justify red a c t ing the documents
to conceal the authors’ identities. Ex e m ption 6 covers “personnel and medical files and similar files the d i s c l o s ure of which would constitute a clearly unwarranted invasion o f personal p rivacy .” 5 U .S.C. § 552(b)( 6 ). The district court held that Ex emption 6 justifies the ag e n cy ’s decision to redact identify ing information. Pruden tial Locations LLC v. U .S.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 4

Dep’t o f Housing & Urban Dev.
, 646 F

. Supp. 2d 1 221 (D. Hawai’i 2009). W e affirm.

A . B ackg round

HUD is t he ag ency responsible for administering a nd enforcing RESPA, 12 U.S.C. § § 2 601–2617. RESPA prohibits referral fees for real estate settlement services: “No
person shall g ive a nd no person shall accept a ny fee, kickback, or thing of value [for referring ] business incident to

or a part of a real estate set t l e m ent service involving a f ederally related mortg ag e loan.” I d. § 2607(a). H UD i n i t i ated two investig ations of Prudential when it received communic a t i o ns, sent five y ears apart, alleg ing that Prudential g ave referral awards in violation of RESPA.

I n the first communication, the a u thor wrote a one-pag e letter dated J uly 7, 2003, (the “ 2003 L etter”) allegi n g t h at “Prudential L ocations Real Estate Salespersons g et monetary kickbacks ($$,$$$) for the a mount of business that is referred
to W ells F arg o.” The author e x plained t h a t “ W e lls F a rg o”

was shorthand for W ells F a rg o Home Mortg ag e of Hawaii, a joint v e n t u re f

ormed by W ells F arg o B ank and Prudential L ocations. The author a ttached an article published on J anuary 26, 2003, in the Honolulu Star-Bulletin

, q uoting it a s say ing that “a ge n ts from firms

. . . throug hout Hawaii

. . . were elig ible to win [ a] Merced es by referring at least $1 million in loans to Wells F arg o in 2002.” The author asked, “I s it a violation of RESPA for real estate age n t s to receive compensation for steering business to a specific L ender? ” The author stated that he or she anticipated that HUD would provide a written reply

. The au t h o r neither asked for
anony mity n or authoriz ed HUD to reveal his or her identity

.P R U D E N T I A L L O C A T I O N S L L C V

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I n resp o n se to the letter, HUD opened an investig ation. HUD discovered, consistent with the letter’s alleg ations, that Prudential rewarded a g ents with “priz es” in return for referring over $1 million of business to W ells F arg o. The priz es included a Mercede s -B enz lease and vacation packag e s to T hailand and L as Veg as. HUD closed the investig ation in 2005 after entering into a settlement a g reement under which Prudential ag reed to sto p violating RESPA and to pay a penalty of $48,000.

I n the second communication

, the author wrote H UD an email d a ted J anuary 19, 2008 (the “2008 Emai l ”). The author, who was aware of the $48,000 penalty imposed under the 2005 settlement ag re e m e n t, wrote that Prudential was “blatantly v iolating RESPA laws ag ain.” The author alleg ed that Prudential was “ c harg ing an ex tra fee f o r a n in h ouse transaction coordinator E VERY TI M E to ag ents that do not

use ($75 ex tra fee) Wells F arg o (affilia t e d company o f Prudential L ocations L L C) and ($50 ex tr a fee) I sland Title (affiliated company of Prudential L o cations L L C ).” The author wrote that a

n ag ent from Prude n tial g ave the author this information and “ex pressed concern that h is c o mpany

w as violating RESPA laws ag a in.” The author of the 2 0 0 8 Email asked HUD to keep his or her name anony mous.

I n response to the 2008 Email, HUD opened a s e co nd investig ation. I n March 2009, it concluded that the evidence did not substan t i a t e the email’s alleg ations a nd closed the investig ation.

I n J une 200 8
, w h ile the second investig a tion was underway

, Prudential made a F O I A request for HUD’s

r e cords o f the two investig ations. Prudential specifically asked HUD to produce information “to show the identit y o fP R U D E N T I A L L O C A T I O N S L L C V

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all parties who provided information t o HUD relating to the initiation” of b oth HUD investig ations. I n March 2009, HUD produced roug hly four-hundred pag es of responsive documents.

HUD p roduced the 2 003 L etter and the 2008 E m a i l in
response to the F OI A request, but it redacted i n f ormation in both documents i n o r d er to conceal the authors’ identities. HUD redacted the letterhead a n d the sig nature line of the 2003 L etter. HUD produced a r edacted version of the 2008 Email as part of its initial r esponse, and it turned over a less redacte d v ersion of the email during the course of this l i t i ga tion. I n the less redacted version, HUD redacted the “F rom” f ield in the email he a d er, the first sentence, a nd the author’s contact information. HUD a l s o redacted lang uag e after the phrase “but I would like to remain anony mous.” The leng th of this redaction sug g ests that it contained ten o r eleven averag e-leng th words. I ts loc a t i o n in the email
sug g ested that the redacted lang uag e ex plained wh y the author desired anony

mity

.

I n a letter to Prudential’s attorney , HUD justified the redactions under Ex e mpt i o n 6

. HUD ex plained that “[ r] elease o f this information would constitute an unwarranted invasion of personal privacy” ou tweig h ing any “interest of the g eneral public in reviewing these portions of
g overnment documents.”

Shortly t h ereafter, Prudential b roug ht suit in federal district court specifically seeking disclosure of the identities of the a uthors of the two communications. Prudential moved for summary judg ment. HUD filed a cross-motion for
summary judg ment that included an affidavit from I v y J ackson, HUD’s Director of the Office of RESPA a ndP R U D E N T I A L L O C A T I O N S L L C V

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I nterst a t e L and Sales. J ackson described HUD’s g eneral policy o f concealing the identity o f any complainant “whether

or not the complainant a ffirmat i v e ly authoriz ed the release [ of his o r h er name] .” However, it a ppears that HUD may release the complainant’s name under certain circumst ances if the “person has specifically authoriz e d release of h is or her name.” S h e ex plained that HUD relies on “ industry competitors and insiders” as sources of information to detect RESPA violations. She feared that industry insiders would be “vulnerable to retaliation, i.e. loss of employ ment, loss o f business and leg al action,” if HUD were forced t o d i s c lose their identities. J ackson stated that whe n s h e speaks before industry g ro u ps, she reminds industry insiders of HUD’s policy of confidentiality

. The district court entered summary judg ment in favor of HUD, holding that the redacted in formation was protected from disclosure u n der Ex emption 6. P rudential Locations
, 646 F

. Supp. 2d a t 1228. The court bal a n ced the privacy interest of the individuals whose names were redacted ag ainst the public’s interest in disclosure. I d

. a t 1 226. On the privacy -interest side, the court found that complainants reporting RESPA violations c ou l d be subject to retaliation. Id. at 1226–27. On t h e p u blic-interest side, the court f ound that disclosure of the complainants’ identities would not

reve a l sig nificant and otherwise u navailable information about HUD’s activi t i e s. Id. at 1227. The court also f ound that Prude n tial provided no evidence indicating that the identity of complainants would reveal a ny misconduct or bias on the part of HUD. Id.

After initial arg ument in this case, we reversed the district court, h o l ding that HUD could not redact identify ing i n f ormation under Ex emption 6, a b sent an additional show i n gP R U D E N T I A L L O C A T I O N S L L C V

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concerning the identity of the compla inants and the privacy interests th a t w ere likely to be infring ed. Prudential Locations LLC v. U.S. Dep’t of Housing & Urban Dev.
, 648 F .3d 768 (9th Cir. 2011). On the g overnment’s petition for panel rehearing

, we ordered the case rearg ued. W e n ow affirm.

B . Standard of Review

“[ A] two

- s t e p standard of review applies to summary judg ment in F OI A cases. The court first determines under a de novo standard whether an adequate factual basis e x ists to support the d istrict court’s decisions. I f an adequate f actual bas i s ex ists, then the district court’s conclusions of fact a re reviewe d fo r clear error, while leg al ruling s, including its decision that a particular ex emption applies, are reviewed de

novo .” Lane v. Dep’t of Interior
, 523 F .3d 1128
, 1135 (9th Cir. 2008) (internal citations omitted).

C. Discussion

F OI A g rants access to g overnment archives fo r p u blic dissemination of “‘official informati o n long shielded unnecessarily from public v iew.’” Milner v. Dep’t of Navy
, 131 S. Ct. 1259, 1 262 (2011) (quoting EPA v. Mink

, 410 U.S. 73, 80 (1973 ) )

. Under F OI A, an ag ency must make
g overnment records available to the public upon a properly made request. 5 U.S.C. § 552(a)(3)(A). However, the ag ency need not disclose documents or information fa l l ing within any of nine statutor y ex e mptions. Id. § 5 52(b)(1)–(9). The
ag ency bears the bu r den of justify ing the withholding o f information under an ex emption. Id. § 552(a)(4)(B ).P R U D E N T I A L L O C A T I O N S L L C V

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Ex empti o n 6 allows an ag ency to withhold “personnel a nd medical f iles and similar files the disclosure of which would constitute a cle a r ly unwarranted invasion o f personal privacy .” Id. § 552(b)(6). We ask two questions in deciding whether an ag ency has prope rly withheld records o r information under Ex empti o n 6

. F irst, we ask whether the document q

ualifie s under the heading of “personnel a nd medical f iles and similar files.” Id. Second, we ask whether
pr o d u c t i o n o f the document, or information contained therein, “would constitute a c learly unwarranted invasion of personal privacy .” Id. ; see, e.g. , Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence

, 639 F .3d 876, 886 (9th Cir. 2 010); Forest Serv. Emps. for E n vtl. Ethics v. U.S. F

o r e s t Serv.
, 524 F .3d 1021, 1024 (9th Cir. 2008).

1. “Personnel and Medical F iles and Similar F iles”

Ex em p t i o n 6 w as “‘intended to cover detailed Government r ecords on an individual which can be identified

as apply ing to that individual.’” U.S. Dep’t o f State v

. W

ash. Post Co.
, 456 U.S. 595, 6 02 (1982) (quot i n g H .R. Rep. No. 89-1497, at 11, reprinted in 1 966 U.S.C.C.A.N. 2418, 2428). “I nformation unrelated to a n y particular person presumably would not satisfy the t h r e s h old test.” I d. at 602 n.4. The Supreme Court has concluded that the phrase “similar files” in E x emption 6 has a “broad, rather than a narrow, meaning

. ” Id. at 600. “Similar files” include files containing c itiz e nship information on s p e c i fic individuals, id. at 602; reports on interviews w i t h Haitian nationals involuntarily returned to Haiti, U.S. Dep’t of State v. R a y , 502 U.S. 164, 173 ( 1 9 91);

a report analy

z ing an ag ency ’s response to a wildfire, F orest S erv. Emps.
, 5 24 F .3d a t 1024; and a n “ Excelsior li s t ” o f

names and a ddresses of employ ees elig ible to vote in a unionP R U D E N T I A L L O C A T I O N S L L C V

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representation election, V an Bourg, Allen, W

einberg & Roger v. NLRB
, 728 F .2d 1270, 1273 (9th Cir. 1984).

The district court in this case held that the 2003 L etter a nd
t h e 2008 Email are “similar files” within the meaning o f Ex emption 6. Prudential Locations
, 646 F

. Supp. 2d at 1226. W e are skeptical that a communication sent by an individual
to a federal enforcement age n c y c o mplaining about illeg al business activity is sufficie n tly “similar” to a “personnel o r medical

. . . file” of that individual for the communication to qualify under Ex emption 6

. W e recog niz e that t h e d istrict court’s holding has o ut-of-circuit support

. See, e.g. , Lakin Law Firm, P. C

. v

. Fed. Trade Comm’n
, 352 F .3d 1122 (7th Cir. 200 3 ) ( u pholding redaction under Ex emption 6 o f identities of individuals who comp l a i n e d to the F TC about illeg al business activity

); Strout v

. U.S. Parole Comm’n
, 40 F .3d 136 (6th Cir. 1994) (upho l d ing r edaction under Ex emption 6 of identity of individual s who wrote to the Parole Commission opposing Strout’s p a r o l e). I ndeed, our

own c ircuit’s decision in Forest Ser v i c e E mployees

, upholding redaction of employ ees’ names from a report on a forest fire prepared by the F orest Servic e , provides some support for the district court’s holding

. S ee 524 F .3d at 1024.

Prudential has not contested on appeal the h o lding that the 2003 L e tter and 2008 Email are “simi l a r f i les” under Ex emption 6. W e therefore a ssume without deciding that the 2003 L e tter and 2008 Email are “similar files” w ithin the

m e a n ing of Ex emption 6

. See Elec. Frontier F ound.

, 639 F .3d at 886 (analy

z ing under E x e mption 6 reda c t i o n o f identities of lobby ists f

rom c ommunications sen t b y the lobby ists to federal ag encies i n attempts to influence leg islation; noting that “this may be a closer question than the government describes”; and assuming without deciding t h atP R U D E N T I A L L O C A T I O N S L L C V

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the communications were “similar files” in the a bsence o f objection by

the requestingparty

).

2. “Clearly

Unwarranted I

nvasion of Personal Privacy ”

The second requi r e ment under Ex emption 6 is that disclosure of the informat ion “would constitute a clearly unwarranted invasion of personal p rivacy .” § 552(b)(6). T o

answer this q u e s t i on, “ we must balance the privacy interest protected by the ex emptions ag ainst the public i n terest in
g overnment open n ess that would be served by disclosure.” Elec. Frontier Found.

, 639 F .3d at 8 86; see a l s o Ra y , 502 U.S. at 175.

(i) Cog niz able Personal Privacy I n terest

To withhold information under E x e mption 6
, an ag ency must show that “ some n ontrivial privacy interest” is at stake. U.S. Dep’t of Def. v. FLRA
, 510 U.S. 4 8 7
, 5 0 1 (1994). I f only a trivial privacy interest is implicated, t hen Ex emption 6 cannot apply

. B ut if there is a “nontrivial privacy interest,” then the ag ency must balance the individu a l ’ s interest in personal p rivacy ag ainst the public’s interest in disclosure. See Forest S

e r v

. E mps. , 524 F .3d at 1 027 (“‘[ S] o me nontrivial privacy interest’ is sufficient t o justify the withholding o f information under E x emption 6 u nless the public i n terest in disclosure is sufficient to outweig h it.” (emphasis omitted)); Multi Ag M edia LLC v. Dep’t of

Agric.
, 515 F .3d 1224, 1229–30 (D.C. Cir. 2008) (once a court finds “any thing g reater than a d

e minimis privacy interest,” it must then address “whether the p ublic interest in d i s closure outweig hs the individual p rivacy c oncerns” (internal quotation marks omitted)).P R U D E N T I A L L O C A T I O N S L L C V

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A broad rang e of personal privacy interests a re cog niz able under F OI A, i n c luding under Ex emption 6. The Court has emphatically rejected a “cramped notion o f p e r s o n al privacy

. ” U.S. Dept. of Justice v

. R e p o rters Comm. for Freedom of Press
, 489 U.S. 749, 763 (1989). I ndividuals not only have

an obvious privacy int e rest in being free from retaliation, harassment, e mbarrassment, or stig ma. R a y , 502 U.S. at 176–77 ; F

o r e st Serv. Emps.
, 524 F .3d at 1026. T h ey also have a privacy interest in s imply “keeping p ersonal facts
away from th e p u b l i c ey e.” Reporters Comm.
, 489 U.S. at 769. “[ P] rivacy encompass[ es] the individual’s c o n trol o f information concerning

his or her person.” Id . at 763.

I n Ray
, the Supreme Court h eld that E x emption 6 allowed the State Department to redact the names of Haitian nationals interviewed by the ag ency a f t er they were involuntarily returned to Haiti. Ray
, 502 U.S. a t 171. The Court noted that disclosure of the identities of those who cooperated with the State Department investig ation “ c ould subj e ct them o r their families to embarrassment in their social a nd co m m unity relationships.” Id. a t 176 (internal quotation marks omitted). The Court g ave “g r eat weig ht” to the interviewees’ privacy interest in being free “fro m a n y retaliatory action that mig ht result from a renewed inter e s t i n their aborted attempts to emig rate,” e ven thoug h it was “impossible to m e a sure” the dang er of re t a l i ation or o ther mistreatment. I d. at 176–77. The Court e mphasize d t

hat the interviewees “mig ht have been willing to disc uss p rivate matters that h e or she would not otherwise ex pose to the public” because they had secured an “assurance of confidentiality .” Id. at 177.

Our court has also upheld the non-d i s c l o sure o f identify ing information under Ex empt ion 6. I n F orest Service Employees

, a “public int e rest watchdog org a niz ation”P R U D E N T I A L L O C A T I O N S L L C V

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requested release of a report prepared by the U.S. F orest Service. 524 F .3d at 1023. The report contained a detailed narrative of the Service’s heavily criticiz ed response to a wildfire, and it concluded that the r esponse contributed to the fire. I d. T he Service released the report but redacted under Ex emption 6 the names of its low- and mid-level employ ees identified in the r eport. Id

. at 1023, 1026. W e h eld that the redactions were justified under Ex emption 6, recog niz ing as cog niz able privacy interests the “pot e n tial for harassment,” “embarrassment,” and “stig ma” that would arise from public association with the incident. Id. at 1026. Among other thin gs, we noted that the plaintiff org aniz a tion planned to contact the employ ees once their identities were d isclosed, and that the m e d i a and others would likely contact the employ e es as well. Id

. Similarly

, in Lahr v

. National Transporta t i o n Safety Board

, 569 F .3d 964 (9th Cir. 2009), t h e National Transportation Safety B o ard released docum e n t s obtained d u ring an investig ation of the midair ex plosion of TW A F lig ht 800, but r edacted under Ex emptions 6 a n d 7(C) the

names of ey e witnesses and investig ating officers. W e wrote that “protection from [ u nwanted contact by t hird parties] facilitated b y disclosure o f a connection to g overnment operations and investig ations is a c og n iz able privacy interest under E x emptions 6 and 7(C).” Id. at 976. Rely ing on F orest Service Employees

, we held that t h e i dentities o f both the
ey ewitnesses and F B I investig ators were protected from disclosure. Id. at 976–78.

I n some of these cases, the affected in d i v iduals h ad received an assurance of c o nfidentiality from the g overnment. S u c h a n a ssurance is neither a necessary , nor a necessarily suffici e n t, condition for the ex istence of a cog niz ableP R U D E N T I A L L O C A T I O N S L L C V

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personal privacy interest und e r Ex emption 6. S ee Ray
, 502 U.S. at 177. B ut as the Court made clear in Ray
, such an

assurance is a relevant factor. See id

. H e r e , the affidavit o f HUD official J ackson tell s u s that HUD has a publicly announced policy of p reserving the confidentiality o f individuals who complain t o t h e a g ency about violators o f RESPA. We recog niz e that only the author of the 2 0 08 Email specifically r equested a

nony mity

. B u t in lig ht of the repeated public pronouncements of HUD’s confidentiality policy , we conclude that the authors of both the 2003 L ette r and 2008 Email had reaso n able ex p ectations that HUD would protect their confidentiality e ven without a specific request that it do

so.

Given the circumstances of this case, we conclude that the authors of the 2003 L etter and 2008 Email have cog niz able personal privacy interests under Ex emption 6.

(ii) Personal Privacy

I nterest and Public I nterest in Disclosure

To determine whether releasing the identitie s o f the authors of the letter and emai l “would constitute a clearly unwarranted invasion o f personal p r ivacy ,” w e balance the interest in personal privacy ag a inst the public interest in disclosure. I n perfo r m i n g that balancing

, we “may properly discount

. . . the probability ” o f a n invasion of personal privacy

. Dep’t of Air F orce v. R o s e , 425 U.S. 352, 380 (1976). B u t the invasion of a personal privacy interest may be “clearly unwarranted” even w hen the invasion of privacy is far f rom a certainty

, as dem o n s t r a t e d by two recent cases. I n Lahr

, we upheld the application of E x emption 6 to protect the identities of ey ewitnesses to the ex plosion of TW A F lig ht 800 w he n t h ere was a “

potential for unwanted contact b yP R U D E N T I A L L O C A T I O N S L L C V

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third parties, including the plaintiff [ an individual interested in the cause of the ex plosion]

, media entities, and commercial solicitors.” La h r , 569 F .3d at 975 (emphasis added). Similarly

, in Forest S

ervice E mployees

, we upheld the application of Ex emption 6 b ecause of the “ potential f

o r harassment ” b y “the media, curious neig hbors, and [ the plaintiff org aniz ation] ,” and because releasing t h e e m p l o y e es’ identities “ may also sub j e c t them to embarrassment a nd stig ma.” Fo r e s t S

erv. Emps.
, 524 F .3d at 1026 (emphasis added).

The d istrict court concluded that revealing th e i dentities of the authors of the 2003 L etter and 2008 Email w ould likely invade the authors’ privacy interests. Prudential Locations
, 646 F

. Supp. 2d a t 1226–27. W e ag ree with that conclusion. The authors o f the two c omm u n i cations could easily be adversely affected if their identities become kn o w n

. Given the nature of their communications, t hey appear to have inside knowledg e o f the mortg ag e industry in Hawai’i. HUD official J ackson stated that the ag ency p romises anony mity to industry insiders who report suspected w r ong doing because of their vulnerability to re t a l i a tion such as loss o f employ ment or loss of business. The d istrict court noted in its opinion that Prudential had “mention[ ed] the possibility o f

a civil l a wsuit ag ainst the unidentified individuals for their ‘sham’ complaints.” Prudential Locations
, 646 F

. Supp. 2d
at 1225. Prudenti a l w e n t t o the ex pense not only to make a F OI A request for HUD’s records from the two investig ations. W h en it received what appear t o b e a ll relevant documents, with only the identities of the authors of the 2003 L e tter and 200 8 E m a il redacted, Prudential then also w ent to the add i t ional ex pense of filing a federal suit and pursuing an appeal w ith the sole aim of identify ing the authors. Under these circumstances, we conclude that there is a sig nificantP R U D E N T I A L L O C A T I O N S L L C V

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risk of harassmen t , r e taliation, stig ma, or embarrassment o f the authors if their identities are revealed. See Ray
, 502 U.S. at 176–77; Forest Serv. Emps. , 524 F .3d at 1026.

Ag ainst the authors’ privacy interest, we weig h the public interest in d isclosure of their names. The Court has narrowly def i ned the public interest that is cog niz able in a F OI A balancing : “[ T] he only relevant public in t e r e st in the F OI A ba l a n c i n g analy sis [ is] the ex tent to which disclosure o f the information soug ht would ‘ s he[ d] lig ht o n an ag e ncy ’s performance o f i t s statutory duties’ or o therwise let citiz ens know ‘w h a t t heir g o vernment is up to.’” Dep’t of Def.

, 510 U.S. at 497 ( 1994) (quoting Reporters Comm.
, 489 U.S.
at 773) ( second alteration in orig inal). Revealing the identity of a private individual does not further the public interest unless it casts lig ht on the conduct of the g overnment:

Official information that sheds l i gh t on an ag ency ’s performance of i ts statutory duties falls squarely within [ F OI A’s] statutory purpose. T h at purpose, however, is not fostered by disclosure of information about private citiz ens that is a ccumulated in various
g overnmental files but that reveals little o r nothing about an ag ency ’s own conduct.

Reporters Comm. , 489 U.S. at 773.

Prudential ha s n o t shown that learning the identities o f those who wrote the letter or the email woul d a dd sig nificantly to the already available information concerning the manner in which HUD has performed its statutory duties. Pr u d ential has made no alleg ation, and has presented no evidence, that HUD p erformed either of the twoP R U D E N T I A L L O C A T I O N S L L C V

. HUD 17

investig ations im properly or inefficiently

. Prudential does
not contend that HUD’s f inding in the first investig ation that Prudential had violated RESPA b y awarding p r i z es for steering business to its jointly owned business w as improper;

n or d oes Prudential contend that the $48,000 fine, pa i d i n settlement, was ex cessive in lig ht of its violation of the law. Prudential also does not contend that HUD acted improperly

or inefficiently in conducting the second investig ation, at the end of which HUD concluded that the author’s alleg a tion of
wrong doing by

Prudential could not be substantiated.

This case is quite different from Electronic F r o n tier Foundation

, in w hich we held tha t t h e re was a substantial public interest in learning the identities of lobby ists who h ad communicated with the e x e cutive branch in an attempt to in f l u ence leg islation. The lobby ists had soug ht leg islation that would p rovide retroactive p rotection from liability for telecommunications carriers that had cooperated with the
g overnment in conductin g “ a w arrantless, electronic surveillance prog ram on millions of American telephones.” Elec. Frontier Found.

, 639 F .3d at 879. W e wrote:

There is a clear public interest in public knowledg e o f the methods throug h which

w e l l

- c o nnected corporate lobby ists wield thei r influence.

. . . W ith k n owledg e of the lobby ists’ identities, the public will be able to determine how the Ex e cutive B ranch used advice f rom p a r ticular in d i viduals a

nd corporations in r e a ching its own policy decisions.

. . . I n short, we find the public interest in “g overnment o penness that would be served b y disc losure” of how the
g overnment makes decisions pot e ntiallyP R U D E N T I A L L O C A T I O N S L L C V

. HUD 18

s hielding firms lobby ing (and donating to campaig ns) from nine-fig u re liabilities to be plainly important.

Id. a t 887–88. Here, the au t hors did not seek to influence leg islation or to chang e any substantive policy

. I nstead, they alleg ed violations of an ex isting federal statute in communications to the federal a g ency charg ed with enforcing that statute.

Th e r e is nothing in the tex ts of the 2003 L etter or the 2008 Email, or in the actions o f H U D in investig ating the alleg ations o f statutory violations, to sug g est that knowledg e of the identities of the authors would sig nificantly “shed lig ht

on an a g e ncy ’s per f

ormance of its statutory duties o r otherwise let citiz e n s know what their g overnment is u p to.” Dep’t of Def. , 510 U.S. at 497 (internal quotation marks and alteration o mitted). W e therefore concl u d e that n o public policy cog niz able u nder Ex emption 6 would b e se r v e d b y revealing their identities.

Be c ause the authors of the communications ha v e cog niz able personal privacy interes t s i n maintaining their
anony mity , and because there is no c o g n iz able public policy interest that wou l d b e served by revealing their identities,

we h old that revealin g t h eir identities “would constitute a clearly unwarranted invasio n o f personal privacy” under Ex emption 6.

3. Ex emption 7(D) and Landano

Prudential arg ues that the foreg oing a naly sis makes Ex emption 7 “superfluous,” and undercuts the Supreme Court’s interpretation of E x emption 7(D) in United St a t e sP R U D E N T I A L L O C A T I O N S L L C V

. HUD 19

Department of

Justice v. Landano

, 508 U.S. 165 (1993). W e disag ree.

Ex emption 7 applies to “records o r information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). Such

r e c o r d s are ex empt f

rom a F OI A request, but only if they satisfy the criteria of at least one of six subcateg ories o f Ex emption 7 — Ex emptions 7(A) throug h 7(F ). Ex emption 7(D) provides that a law enforcement record nee d n o t b e released if it “could reasonably b e ex pected to disclose the identity of a confidential source.” Id. § 552(b)(7)(D). I n Landano

, the Court established the criteria by w h ich a law enforcement “source” c an qualify a s “ confidential” within the meaning o f E x emption 7(D). See Landano

, 508 U .S. at 179–80.

Prudential arg u es, thoug h a little obliquely

, that the 2003 L etter and 2008 Email are “records or information compiled for law enforcement pur p o s e s” within the meaning o f Ex emption 7, and that the a uthors of the 2003 L etter and the 2008 Email do not qualify as “confid e n tial source[ s] ” under Ex emption 7(D). I t then a rg ues that if the identities o f the
aut h o r s are protected u nder Ex emption 6, without any requirement t hat the authors satisfy the criteria for a “confidential source” conta ined in Ex e mption 7(D), Ex emption 6 offers an e n d run around the more string ent requirements of Ex emption 7. W e see no basis t o c o n clude that the application of E x emption 6 in this case undercuts or is inconsistent with Ex emption 7.

Ex emption 7 opera tes differently from Ex emption 6. Under Ex emption 7(D), if a n individual satisfies the criteria for a “confidential source,” then the “record[ ] or information compiled for l a w e n forcement purposes” need not beP R U D E N T I A L L O C A T I O N S L L C V

. HUD 20

released. § 5 52(b)(7)(D). I f the individual is a “confidential source,” that is the end of the matter; there is n o need to balance the individual’s privacy interest ag ainst the public interest in disclosure, a s i s required under Ex emption 6. How ev er , i f the individual does not satisfy the criteria for a “confidential source,” h e or she may nonetheless b e protected

u n der some o ther subcateg ory of Ex emption 7. T h e subcat e go r y most relevant to our case is Ex emption 7(C), which ex empts “records or infor m at ion compiled for law enforcemen t purposes” if their disclosure “could reasonably be ex pected to constitute an unwarranted invasion of personal privacy .” Id. § 552(b)(7)(C).

W e are willi n g to assume that the 2003 L etter and 2008 Email are “records or infor m at i on compiled for law enforcement purposes” within t h e meaning of Ex emption 7. I f HUD had characteriz e d them as s u ch and had relied on E x e m p t ion 7 (C) to e x empt them from release, we would balance the authors’ privacy interests ag ainst the public interest in disclosure, much as we have just done under Ex emption 6. W hat Prudential fails to recog n i z e i s that Ex emption 7(C) is more protective o f p r ivacy than Ex emption 6. As the Supreme Co u rt n oted in Reporters Committee
, “Ex emption 7(C)’s privacy la n gu a ge is broader than the comparable lang uag e in Ex e m p t i on 6 in two respects.” 489 U.S. at 756. F irst, E x emption 6 requires that the invasion of p rivacy be “cle a

r l y u n warranted,” w hereas Ex emption 7(C) requires only that the invasio n b e “unwarranted.” Second, Ex emption 6 requires a d isclosure that “would constitute” an invasion of p rivacy

, w hereas E x emption 7(C) requi res only that a disclosure “could reasonably be ex pected to constitute” an invasion of privacy

. However, because HUD has chosen
to rely on Ex emption 6 rather than Ex e mption 7(C), we needP R U D E N T I A L L O C A T I O N S L L C V

. HUD 21

not ex amine whether the 2003 L e t t e r and the 2008 Email would also be protected under Ex emption 7(C).

Conclusion

F or th e f

oreg oing reasons, we conclude that HUD properly withheld t h e i d e ntities of the authors of the 2003 L etter a nd the 2008 E mail. W e therefore a f f i r m the district
court.

AF F IRMED.

B ERZ ON, Circuit J udg e , dissenting :

The F reedom of I

nformation Act (“F OI A”) establishes a strong default r

ule: Government must disclose information in its possession unless it invokes, at its discretion, one of nine

narrow ex emptions. S

e e , e.g. , U.S. D ep’t of Def. v. FLRA
, 510 U.S. 487, 494 ( 1994) (citing U.S. Dep’t of Air Force v

. Rose
, 425 U.S. 352, 360–61 (1976)); see als o 5 U .S.C. § 552(b)(1 )

– (9) ( enumerating ex emptions). Here, HUD has invoked only Ex emption 6, which authoriz es w i t hholding “personnel and medical file s a n d similar files the disclosure of which would c onstitute a clearly unwarranted invasion of personal privacy .” 5 U

. S.C. § 552(b)(6). Apply ing that

ex e mption requires balancing the personal privacy interests it protects “ag ainst the p u b l ic interest in g overnment openness that w ould be served b y disclosure.” Lahr v. Nat’l Transp. Safety Bd. , 569 F .3d 964, 973 (9th Cir. 2009).

The majority

identifies a personal privacy interest which
may n ot ex ist, and then w eig hs the public int e r e s t inP R U D E N T I A L L O C A T I O N S L L C V

. HUD 22

disclosure too lig h tly

. And it does both in the name o f reducing the g overnment’s burden in comply ing with the law, a concern with no application here. I dissent.

I

.

W e re it u p to me, I would d o what we did in our orig inal resolu t i on of this case—remand to the district court for further factual development. See Prudential Locations LLC

v. U.S. Dep’t of H

o u sing & U

rban Dev.
, 648 F

. 3d 768, 778–79 (9th Cir. 2 011), vacated and rehearing g ranted

, 665 F .3d 1379 (9th Cir. 2 012). The present r e cord is i n a dequate to confirm the ex istence of any personal privacy interest, let alone to b a lance it ag ainst the p u blic interest in naming those informant s whose tips o ur g overnment deems credible enoug

h to merit investig ation.

A.

1. Ex emption 6 appli e s o n l y where some “personal privacy ” interest is at stake. See Rose
, 425 U .S. at 371, 375 n.14. A “ ‘nontrivial privacy interest’” c a n be enoug h to trig g er further analy sis under the ex emption. See Forest Serv. Emps. for Envtl. Ethic s v. U.S. Forest S e rv. , 5 2 4 F .3d 1021, 1 0 2 6

– 27 (9th Cir. 2 008) (quoting FLRA
, 510 U.S. a t 501). B ut if no nontrivial privacy interest is in jeopardy

, then F OI A require s d i sclosure. See Multi Ag Media LLC v

. Dep’t of Agric. , 515 F .3d 1224, 1229–30 (D.C. Cir. 2008).

A nontrivial p r i vacy interest does not ex ist merely because the g overnment asse r t s i t. Rather, F O I A’s “strong
pre s umption in favor of disclosure places the burden on the

a ge ncy to justify the withholding of any reques t e d documents.” U.S. Dep’t of State v

. Ray
, 502 U.S. 164, 173P R U D E N T I A L L O C A T I O N S L L C V

. HUD 23

(1991); Maricopa A udu b o n Soc’y v. U.S. Forest Serv.
, 108 F .3d 1089, 1092 (9th Cir. 1997); 5 U.S.C. § 552(a)(4)(B ). L ike all parties on summary judg ment, the g overnment must adduce specific evidence to carry its burden. See F ed. R. Civ. P. 56(c).

T h e g overnment in this c ase h as submitted no evidenc e whatever concerning the rel e v ant circumstances or privacy

concerns of the individuals who f iled the compl a i n t s o f
wrong doing with HUD. I n t he face of this vacuum, the majority in e ffect holds that the g o vernment carries its burden of demonstrating a nontrivial privacy interest simply b y specify ing that the individual whose name is being withheld reported alleg e d w rong doing to a g overnment official. F OI A Ex emption 6 requires more.

Ex emption 6 provides protection for “ personal privacy

. ” 5 U.S.C. § 552(b)(6) (emphasis added). T h e c a s e law g ives effect, as it must, 1 t o t h e “personal” modifier, requiring the
g overnment to demonstrate either that disclosure of an individual’s name would be linked with p ersonal deta ils about his life or that disclosure would subject an individual to harassment in his personal life.

I n United States Department of State v. Ray
, for ex ample, the Court invoked both of these c i r c u m stances in approving withholding the na m e s of involuntarily repatriated Haitians interviewed pursuant to a State Department inve s t i gation. Ray
, 5 02 U.S. at 175–76. I t noted that “hig hly personal

1 “ ‘ W e h av e lo n g f

o llo w ed th e p rin cip le th at ‘ [s ] t a t u tes sh o u l d n o t b e

co n stru ed t o m ak e su

rp lu sag e o f an y

p ro v isio n .’ ” Lo ca l Jo in t Exec. Bd

. o f La s Veg a s v. NLRB
, 6 5 7 F .3 d 8 65
, 6 7 5

– 7 6 (9 th Cir. 2 0 1 1 ) (q u o tin g Nw. Fo rest Res. Co u n cil v. Glickma n , 8 2 F.3 d 8 2 5 , 8 3 4 (9 th Cir. 1 9 9 6 )).P R U D E N T I A L L O C A T I O N S L L C V

. HUD 24

information reg arding marital a n d e mploy

ment status, children, li v i n g conditions and attempts to enter the United States, would be l inked publicly with particular, named individuals.” Id. I n addition, the Court hig hlig hted t h e dang er that Haitians c o operating w ith the State Depar t m ent i nvestig ation mig ht be subject to retaliatory action for ill e g ally departing H aiti, or that interviewees would be embarrassed “ in their social and community relatio nships.” Id. at 176.

Our cases, too, are consistent wi t h this understanding o f Ex emption 6’s requirement of “pers onal” ex posure o r harassment. Forest Service Employees

, for ex am p l e , permitted the applicatio n o f E x emption 6 to the names o f low-level federal employ ees because they could personally be subject to “embarrassment a nd s t ig ma” or “harassment” b y litig ants a

nd media. 524 F .3d at 1 0 2 6

. Similarly

, Lahr affirmed the application of Ex emption s 6 a nd 7(C) where disclosing the names of ey ewitnesses t o an accident could

ex p ose them to “undesired contact[ ] ” by litig ants and media. 569 F .3d at 975–77.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 25

The majority purports to r ely on these cases. 2 B ut none o f them upheld applicati o n of Ex emption 6 solely because the i d e n t i f i ed i n d i v i d u a l s p ro v i d e d i n f o r m at i o n to t h e g overnment. I n each c as e , the g overnment revealed more than that a

bout the circumstances of those individuals whose

names the g o vernment sough t t o wi thhold. And it was that additional information that established the dan g e r o f e x posure

2 I ag ree w ith th e m aj o rity t h at treatin g f

iles s uc h as th o s e in th is case, Fo rest Emp lo

yees , an d La h r as “ sim i lar f i l e s ” f o r th e p u rp o se of Ex em p tio n 6 is pro b lem atic, an d ad d so m e ad d itio n al reaso n s w h y th at is

so . Maj . Op . 1 0

– 1 1

.
First, th e g ram

m atical “ ru le o f th e last an teced en t” co m p els a n arro w

co n stru ctio n o f

“ sim ilar f

i les.” U n d er th at ru le, a relativ e p ro n o u n ref ers to t h e n earest r e a s o n a b le an t eced en t. S ee, e.g

. , Ba rn h a rt v. Th o ma s , 5 4 0 U.S. 2 0
, 2 6

– 27 (2 0 0 3); A n t o n i n Scalia & B ry an A

. Garn er, Rea d i n g La w: Th e In terp reta tio n o f Leg a l Texts 14 4

– 4 6 (2 0 1 2 ). Here, th e relativ e p ro n o u n “ w h ich ” attach es o n ly to “ sim ilar f iles”—n o t “p erso n

n el an d

m ed i cal f iles”—an d d escrib es h o w th e relev an t f iles m u st b e “ sim ilar” to p erso n n el o r m ed ical m aterials. T h at d escrip tio n t h u s i n d icates th at d isclo su re o f th e f iles as a w h o le (alth o u g h n o t ev ery reco rd in th e f iles)

m u st, like th e d isclo su

re of p erso n n el an d m ed ical f iles, en t ail a “ clearly

u n w arran ted in v asio n

o f p erso n al p riv acy .”

Seco n d

, ap p licatio n o f t h e f am i l i a r eju sd

em g en eris can o n also

su g g ests th at th e catch

- all term —“ sim ilar f

iles th e d isc l o su

re of w h ich

w o u l d co n stitu

te a clearly u

n w arran ted in v asio n o f perso n a l
p riv acy ”—sh ou ld b e “ ‘ co n s tru ed to em brace on ly o b

j ects sim ilar i n n atu re to th o s e o b

j ects en u m erated by t

h e p reced in g sp ecif

ic w o rd s

. ’” Circu i t City S to res, In c. v. Ad

a ms , 53 2 U.S. 10 5
, 1 1 4 –1 5 (2 0 0 1 ) (q u o tin g 2 A N. Sin g er, S uth erla n d o n S ta tu tes an d S ta tu to ry Co n s tru ctio n § 4 7 .1 7 (1 9 9 1)). “ [P ]erso n n el an d m ed ical f i les” are, b y d ef

in itio n , a b ou t in d iv i d u als an d th eir p erso n al liv es—th eir b o dies, th eir f am ilies, th eir f in an cial circu m stan ces, th eir crim i n al an d discip l i n a ry reco rd s , if an y

. “S i m i l ar f

iles” o u g h t t o carry a p arallel m ean in g , an d so n o t reach f iles th at are ab o u t th e w

ro n g d o in g o f oth er p eo p le a n d c o n t a i n n o su ch
p erso n al d ata ab o u t th e in f orm an t.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 26

of personal information or of harassm e nt in the informants’ personal lives.

Ray
, 502 U.S. at 176, for ex ample, concerned the identity and personal information o f repatriated Haitian emig rants potentially vulnerable to g overnment p ersecution in H aiti for having unlawfully fl e d the country

. Forest Service Employ e es , 524 F

. 3 d a t 1026, concerned low-level
g overnment employ ees, some of whom were associated with serious alleg a tions of misconduct a s to themselv e s , in the
contex t of pending litig ation and much public u p r o a r

. A nd Lahr

, 569 F .3d at 975–77, concerned b y stander ey ewitnesses and i n v e s t ig ators of an infamous plane crash, whom the plaintiff ex p ressly wished to contact ag ainst the backdrop o f substantial media attention. Such additional details—not the bald c laim that the identified indi v i d u a ls provided information to the g overnment—established the ex istence o f

a p e rsonal privacy interest. Moreov e r , in each o f these instances, the underly ing investig ation

, a b out w hich the plaintiffs soug ht records, had been trig g ered by the
g overnment. F or that reason, the information s o u g h t was “personal” in the sense that it concerned individuals w ho h ad
not voluntarily entered the public sphere with reg ard to the information collected by

the g overnment.

The majority ’s opinion thus breaks new g round by finding in the n am e s o f voluntary g overnment informants a per se personal privacy interest. Still w orse, the majority ’s per se rule departs from statute a s well as precedent, because it does nothing to verify that the p urported privacy interest protected by nondisclosure is personal in nature.

The major i t y ’s rule would see a cog niz able “personal privacy ” interest in any inf o r mant’s name, without more.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 27

“ Personal p rivacy” u nder Ex emption 6 is not so broa d

. Disclosure of the names o f those providing information to the
g overnment is not “inherently and alway s a sig nificant threat
to the privacy of the [ named] individuals.” Ray , 502 U.S. at 1 7 6 n.12. T o be sure, an informant’s name refers to h i s person a n d i s in that narrow sense “personal.” B ut “‘[ p] e rsonal’ in th e p h r ase ‘ personal privacy ’ convey s more than just ‘of a person.’ I t sug g ests a ty pe of privacy evocative of human concerns.” FCC v. A T & T, Inc.
, 131 S. Ct. 1177, 1183 (2011).

I n some circumstances, revelation o f an informant’s name does n o t r aise the “human concerns” evoked by the term “personal privacy .” Con s i d er, for ex a mple, the business

ex e c utive accusing his competitor of lawbre aking

. Such an informant acts on behalf of the business t h a t employ s him. And business concerns rarely qualify as “human concerns” o f the sort encompassed by “personal privacy .” “[ W ] e often use t h e word ‘ personal’ to mean precisely the opposite o f business-related: W e s p eak of p ersonal ex penses a nd business ex penses, personal life and work life

. . . . ” I d

. at 1182 (emphasis in orig inal).

F or ex ample, Electronic F rontier Foundation v. Office of the Director of

National Intelligence

, 639 F .3d 876, 8 88 (9th Cir. 2 010), which required the g overnment to d i s c lose the

names of b usiness lobby ists, minimiz e d a lmost to the point o f

non-ex istence the notion that t h e r e was any “personal privacy ” interest in the “nature of their employ ment.” T h ere,

we reasoned that “g overnment a c knowledg m e nt of a lobby ist’s lobby ing activities does not r eveal sensitive personal information abo u t t h e individual rising to a clearly unwarranted invasion of personal privacy

. ” Id. (int e rnal
q uotation marks omitted); see also W ash. Post Co. v. U

. S

.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 28

Dep’t o f Justice
, 863 F .2d 9 6, 100 (D.C. Cir

. 1 988) ( “ In f o r m a t i o n r e l a t i n g t o b u s i n e s s j u d g m e n t s a n d relationships d oes not qualify ” as a personal privacy interests under Ex emption 7(C), “even if disclosure mig ht tarnish someone’s professional reputation.”). Similarly

, if one firm, acting throug h an offi c er or other ag ent, retaliates in the marketplace ag ainst another f or b lowing the whistle, I see no invasion of personal privacy

.

Nor is there necessarily a nontrivial p ersonal privacy interest in the name of a seni o r g o vernment official when such an o fficial acts as an informant. True, “‘individuals do
not waive all privacy interests in information relating to them simply b y ta k i n g an oath of public office.’” Lahr

, 569 F .3d
at 977 (quoting Lissner v. U.S. Customs Serv.
, 241 F .3d 1220, 1223 (9th Cir. 2 0 0 1 ) )

. B u t the p ersonal privacy interests o f senior officials ar e especially a ttenuated. Lahr

, 569 F .3d at 977 (citing D obronski v. FCC
, 17 F .3d 275, 280 n .4 ( 9th Cir. 1994)). W h ere such a senior official voluntarily submits information to the g overnment to trig g er a g ove r n mental investig ation, his affirmative act may f u r t her weaken any putative privacy interest in his nam e

. See Elec. Frontier Found.

, 6 39 F .3d at 887–89 ( n oting that voluntary submission of information intended to affect public policy minimiz es an informant’s p rivacy interest). I n an appropriate case, a court could well d etermine t h a t such a senior g overnment official
possesses, at best, a trivial p e r s o nal privacy interest in withholding his name.

Nor, in the particular circumstances of this case, are there
any o bvious personal privacy interests jeopardiz ed b y the disclosure of an informant’s name if the informant is wholly unaffiliated with either Prudential or the real estate industry

. Such an unrelated informant is not e specially vulnerable t oP R U D E N T I A L L O C A T I O N S L L C V

. HUD 29

retaliation or harassment from his em ploy er, co-workers, o r f r i e n ds, a s mig ht be true if he worked for Prudential or a related f irm. F or th i s r e a s on, too, a privacy interest put in dang er “more palpable than [a] mere possibilit[ y ] ” w ould need to be identified. Rose , 425 U.S. at 380 n.19.

2. The majority side s t e p s these concerns with unwarranted conjecture

. “ Given the nature of [ the informants’] communications,” the maj o r i t y s p e c u lates, “they
appear to have inside knowledg e of the mortg ag e industry in Hawai’i.” Maj. Op. 1 5 (emphasis added). I nferences of this variety cannot carry the day in the p resent contex t. This is an

a p p e a l from the g r ant o f summary judg ment against Prudential, so “[ w] e draw all reasonable inf erences in the lig ht most favorable to the n o n-moving party .” Corns v

. Laborers Int’l Union of N. Am.
, 709 F .3d 901, 907 ( 9 t h Cir. 2013). “ Appearance” seems to be another word for inference,
y et o ther i n fe rences—such as the inference that the information came from a d isg runtled former c u s tomer—are also possible.

Ev e n w e re it otherwise proper, the majority ’s inference would remain unreasonable. T hese informan t s purported to draw their facts from a newspaper article and a conversation with a Prudential employ ee, r espectively —hardly the stuff o f “inside knowledg e.”

The ma j o r i ty continues by sug g esting that Prudential itself may harass, retaliate ag ains t , stig matiz e, or embarrass the informants. After all, the majority hints, Prudential went to the ex pense of f

i l ing a F OI A request and, when it was dissatisfied with HUD’s r e sponse, initiated a lawsuit that it has carried throug h appea l

. Maj. Op. 1 5. Once ag ain, the inference of malice that the majority draws from thisP R U D E N T I A L L O C A T I O N S L L C V

. HUD 30

litig ation history is not its to make. This Court may only take judicial not i c e of “ a fact that is n ot subject to reasonable dispute.” F ed. R. Evid. 201(b). A nd Prudential’s motivations for pursuing its leg al o ptions are re asonably disputable. I t may , for ex a mple, wish to l o b b y HU D to improve its complaint screening proc e s s to w eed out non-credible informants. Or it may wish to improve its own internal confidentiality

policies.

My point is n ot that these al t e r native inferences a re compelled by the reco r d

, or e ven that they are more

reasona b l e than the majority ’s inferences. Rather, the

reaso n a ble possibility o f such motivations r enders the majority ’s preferred interpretation “subject t o reasonable dispute” and hence bey o n d the scope of its authority in reviewing a summary judg ment record as barren as this one. 3

3. I n sum, there can be no per se rule t h a t t h o s e w ho provide information about the alleg ed w r ong doing of others have a personal privacy interest in their identity subject to a threat “more p alpable than [ a ] mere poss i b ilit[ y ],” R o se , 425 U.S. at 380 n.19. B ecause the record in this case leaves

us speculating about the personal p r i v a cy interests o f the

3 T h e m aj o rity ’ s attem

p t s to s h o re u

p its in f eren ce b y o b serv in g th at th e d istrict co u rt o p in io n n o ted t h a t P ru den tial h ad “ m en tio n [ed ] th e p o ssib ility

o f a civ il law su it ag ain s t th e u n i d en tif ied in div id u als f

o r th eir

‘ sh am ’ co m

p lain ts.” Maj

. Op

. 1 5. A n y su ch “ m en tio n ,” h ow ev er, ap p ears

n o w h ere in th e reco rd

. Rath er, th e d istrict co u rt m isin terp reted on e o f P ru d en tial’s l e g a l arg u m en ts—th at pu b lic p o licy d o es n o t p ro tect th ose

w h o f ile u n su pp o rted co m

p lain ts w ith th e g o v ern m en t—as a statem en t of P r u d en tial’ s in ten tio n s. In an y case, HUD d o es n o t rely o n th e d ist r i c t

co u rt’ s u n su

p p o rt e d fi n d in g o n ap p eal. T h e m aj o rity sh ou ld n ot d o so , eith er.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 31

informants, I w ould remand to the dis t ri c t court to develop the record.

M o re o ver, even if we could infer from the absence o f a record—which w e cannot—that there is some nontrivial privacy interest on the p art of the informants, we have n o clue what it is. O nce a n o n t r ivial privacy interest is established, the nex t stag e of the analy sis is to evaluate whether invasion of that interest is “clearly unwarranted” by the countervailing public interest in disclosure. S ee Lahr

, 569 F

. 3 d at 973. Ex ecuting that ba l an cing analy sis requires knowing something about the nature and streng th of the priva cy interest at stake. W e cannot balance a personal privacy interest whose measure we have y et to take.

B

.

Not only is the majority ’s understanding of “ p e r sonal
p r i v a c y ” interests too broad, its account of the public p olicy interests protected by disclosure is too narrow. The majority unnecessarily constricts its inquiry by focusing only o n a public interest in ex posing government impropriety or inefficiency

. I t fails to a c k n owledg e, let alone reject, the broader public interest that Prudential advances.

As the majority correctly notes, only a d isclosure that

“ would ‘she[ d] lig ht o n an ag ency ’ s performance o f i t s statutory duties’ or otherwise let citiz ens know ‘ w hat their
g overnment is up to,’” qualifies as a cog niz able public interest under F OI A. F

LRA
, 510 U.S. a t 497 (quoting U .S. Dep’t o f Justice v. Rep o r t e rs Comm. for F reedom of the Press
, 489 U.S. 749, 773 (1989)). B ut that does n o t mean, a s the majority ’s analy sis at some points sug g ests, tha t t h e plaintiff must have demonstrated that the g o vernment’sP R U D E N T I A L L O C A T I O N S L L C V

. HUD 32

b e h avior may have b een improper or inefficient

. “ [ P] ubli c understanding of the operations o r a c tivities of the
g overnment,” Reporters Comm.
, 4 8 9 U

. S

. at 775, includes not

on ly ex posure of g overnment misfeasance, but also o f
g overnmental effectiveness and o ther aspects of inter nal
ag ency functioning

. 4

Consider, f

or ex ample, Reporters Committee
, 489 U.S. 749. There, the Supreme Court held out Rose
, 425 U.S. 352,

as an e x ample of disclosure that advanced the public interest in understandin g t h e working s of g overnment. That c ase, Reporters Committee ex plained, required the disclosure o f Air F orce Academy disciplinary -hearing summaries because they “obviously contained information that would e x plain how the disciplinar y procedure actually functioned a nd therefore were an appropriate subje c t o f a F O I A request.” Reporters Comm.
, 489 U.S. at 773. The in t e r est was purely informatio nal; suspected g overnment misfeasance h ad nothing to do with it. B ecause the public inte r e st in disclosure is broader than the ex p os u r e of official
wrong doing

, the majority ’s preoccupat i o n with Prudential’s fa i l u re to alleg e that “HUD performed either of the two investig ations improperly or inefficiently ” is beside the point. Maj. Op. 16–17.

4 S ee Co o p er Ca mero n Co rp

. v. U.S

. Dep ’t o f La b o r , 2 8 0 F.3 d 5 3 9
, 5 4 8 (5 th Cir. 2 0 0 2 ) (“ [T ]h ere is a co g n izab le p u b lic in terst in m o n ito rin g ag en cies’ en f

o rcem en t o f th e law

. . . .”); N a tio n M a g a zin e, W

a sh

. Bu rea u v. U.S . Cu sto ms S

erv. , 7 1 F.3 d 8 8 5 , 8 9 5 (D.C. C ir. 1 9 9 5 ) (reco g n i zin g a p u b lic in terest in u n d erstan d in g th e “ ‘ priv a t i z atio n o f g o v ern m en t f u n ctio n s,’ ” p articu larly law en f orcem en t in v estig atio n s); cf. B r ock v. Pierce Cn ty. , 4 7 6 U

. S

. 2 5 3
, 26 2 (1 9 8 6 ) (“ [T ]h e p ro t ectio n o f th e p u b l ic f isc is a m atter th at is o f

in terest to ev ery

citizen . . . .”).P R U D E N T I A L L O C A T I O N S L L C V

. HUD 33

O n t his more ex pansive v iew of the public interest i n knowing “what the g overnment is u p t o ,” Prudential did

ex p lain how disclosure would advance the p ublic knowledg e of HUD’s performance of i ts statutory duties: Prudential

a rg ued that H UD’s operations “cannot be fully underst o o d without knowing who initiates or influences investig a tions.” I t articulated concern that H UD had initiated i n vestig ations “based o n a c c u s a

t ions from potentially b iased, self-interested, or otherwise unreliable sources.”

Althoug h the majority ’s d oes n ot so state, this concern is le g i t i m a t e. Government investig a tions carry costs, burden the public fisc, and d ive r t r esources from other potentially meritorious a ctivities. Meanwhile, targ eted individuals a nd entitie s ar e saddled with disruptive inquiries, the costs o f compliance, and, above all, tarnished reputations. S ee, e.g. , Richard A. B ierschbach & Alex Stein, Overenforcement , 93 Geo. L

. J

. 1743, 1771–7 2 (2005) (collecting sources concerning the “sig nificant ex traleg al s anctions for the d e f e n d a n ts and their employ ees” associated with i n v e s t i g a t i o n of corporate misfeasance or convicti o n )

. Ag encies, a nd the firms and individuals they invest i ga te, will bear those costs

even when investig a tion does not support further prosecution. Given the c osts and c o llateral damag e , the public is entitled
to k now what tips its g overnment deems sufficiently reliable to merit investig ation. 5

5 I n o te th at alth o u g h P ru d en tial is a b u sin ess en tity

, g o v ern m e n t ag en cies in v estig ate m an y i n d iv id u als f o r w ro n g d o in g —f

o r ex am p le,
tax pay ers, so cial secu rity an d o th er b en ef i t reci p i e n t s, an d alleg ed

u n d o cu m en te d i m

m ig ran ts. Un d o u

bted ly

, m an y o f th ese in v estig atio n s

are trig g ered by in f

o rm atio n v olu n taril y p r o v id ed b y m em b ers o f th e p u b lic, f o r m o t iv es g o o d an d ill. T h e m aj o rity ’ s ap p ro ach to th i s c a se

w o u ld p resu m ab ly

ap p ly to su ch in stan ces as w ell. T h at ap p ro ach co u ld
p reclu d e, i n t

h e ab sen ce o f alleg atio n s o f m is f easan ce, th e rev elatio n ofP R U D E N T I A L L O C A T I O N S L L C V

. HUD 34

F ully e v a luating reliability

, in turn, usually requires knowing an informant’s name. Reliability is g enerated b y features both e x ternal and internal to a sta t em e n t. Ex ternal indicia of reliability relate to the identity of t h e i nformant. Knowledg e of an informant’s identity enables a ssessment credibility

, throug h what Florida v. J.L.
, 529 U.S. 2 6 6
, 2 7 0 (2000), termed “ r e putation.” See Illinois v. Gates
, 462 U.S. 213, 233–34 (1983) (noting t h a t “an u nquestionably h onest citiz en” or an informant with a history of “unusual reliability ” would be especially credible). W here an informant is “known

. . . personally and had p rovided

. . . information in the past,” for ex ample, his statement is more rel i a ble than “an
anony mous telephone tip.” Adams v. W illiams

, 407 U

. S. 143, 146 (1972). B y contrast, internal indicia relate to the contents of an informant’s statement —its measure of detail o r the evidentiary base on which it purports to r est. See Gates
, 462 U.S. a t 234 (noting that an “ex plicit and detailed description of alleg ed wrong doing

, al o ng with a statement that the event was o bserved first-hand ,” enhances a tip’s credibility

). W ithout more, h owever, “ ‘an a n o n y mous tip alone seldom demo n s t r a tes the informant’s basis o f knowledg e or veracity .’” J.L.
, 529 U.S. at 270 (quoting Alabama v. W

h ite
, 496 U.S. 325, 329 (1990)). To be deemed reliable, the statement must include independently verifiable details, such a s accurate predict i o n of a suspect’s future behavior. See id. at 2 7 0

– 7 1; U nited States v. Morales

, 252 F .3d 1070, 1076 ( 9th Cir. 2001) (reviewing cases concerning anony

mous tips). I n o t h e r w ords, some e x ternal validation is alway s n e e ded; a statement c annot be considered reliable without it. A nd the informant’s identity i s almost alway s the best w ay of prov i d i n g such ex ternal validation.

in f o rm atio n th at m ig h t brin g t o l ig h t t h e criteria u sed to d eterm in e w h ich

su ch in f orm an t- p ro v id ed in f

o rm atio n is in v estig ated

an d to w h at d eg ree.P R U D E N T I A L L O C A T I O N S L L C V

. HUD 35

Thus, the “marg inal additional usefulness ,” Forest Serv. Emps. , 524 F .3d at 1027 (internal quotation marks omitted), of knowing an informant’s name—that is, the deg ree to which the informant’s name adds to one’s ability to assess reliability —is substantial. A nd such a sig nificant aid to the evaluation of reliability must b e taken into account in determining wheth e r an invasion of personal privacy is

“ clearly unwarranted.” 5 U.S.C. § 552(b)(6) (emphasis added).

I n p a r ticular, the possibility of what Prudential calls “biased” or “self-interested” tips enhances the public interest in identify ing informants. As n oted, an investig a tion injures its targ ets, even if it ulti m ately ex onerates them. F or this
reason, what children call “snitching ” can be an effective way to settle a pe r s o n a l score or g a in a competitive advantag e in the marketplace. 6 I f an informant successfully trig g ers a baseless investig ation for personal g ain

, h e will have put g overnment p o wer to private purpose. That dang er is
p r e e m i nently a public concern. Cf. Exxon Shipping Co.

v. U.S. Dep’t of Interior
, 34 F .3d 7 7 4
, 779 (9th Cir. 1 994) (acknowledg ing , in the contex t of discovery requests a rising
out of litig ation to which the g overnment was not party , “the
g overnment’s s e r i ous and leg itimate concern that its employ e e resources not be commandeered into service b y

6 T h ese a r e h ard ly f

ar- f etch ed p o ssib ilities. S

ee, e.g

. , Po rto men e v. Un ited S ta tes , 2 2 1 F.2 d 5 82
, 5 83 (5 th Cir. 1 9 5 5 ) (d escrib in g an alleg atio n th at “ th ere w as b ad b lo o d b etw een [an in f o rm an t] an d th e d ef

en d an t, an d th at t h is f u rn ish ed th e m o tiv e f

o r [th e in f o rm an t’ s ] d esirin g to in v o lv e [th e d ef en d an t ] b y f

alse ch arg es th at h e h ad d ealt in n arco tics”); Med i fa s t, In c.

v. Min ko w , No

. 1 0

- CV- 3 8 2 J L S (B G S), 2 0 1 1 W L 1 1 5 7 6 2 5
, at * 1 (S.D. Cal. Mar. 2 9
, 20 1 1 ) (d escrib in g an alleg ed “ s eries o f co o rd in ated attack s ”

o n a co m p an y , i n clu d in g accu s atio n s o f reg u lato ry v io latio n s, d esig n ed ‘ to in crease th e v alu e o f

a sh o rt p o s itio n ’ ”).P R U D E N T I A L L O C A T I O N S L L C V

. HUD 36

private litig ants to the detriment o f the smooth functioning o f
g overnm ent operations”). Such a dang er, moreover, is precisely the sort of potential corruption that the F OI A soug ht
to forestall by limiting secrecy

. 7 A nd knowing who alleg e s illeg ality can be helpful in assessing the scope of s u ch possible corruption. Without names, the public is hampered in evaluating th e prevalence of self-interested informants o r the mag nitude of their manipulation.

I do not und e r s t a nd the majority a f firmatively to reject these considerations, but instead to disreg ard them, e vidently as insufficiently

raised. I disag ree on the latter point. And I

ex p ect that a f

uture panel, a djudicating a ca s e w h e r e such

concerns are fully articulated, will be attentive to the full
scope of the public interest in learning “what the g overnment is up to” in the p rocessing of complaints by outside informants.

7 FOIA en s u res citizen o v ersig h t o ve r t h e g o v ern m en t, “ a stru ctu ral

n ecessity in a real d e m o c r a cy .” Na t’l Arch ives & Reco rd s Ad min

. v. Fa vish

, 54 1 U.S. 1 5 7
, 1 7 2 (2 0 0 4 )

. In th e d eb ate o v er th e FOIA

am en d m en ts, leg islato rs so m etim es co n trasted th at co m m itm en t to d em ocratic ov ersig h t w ith “ th e u n h ap p y co n seq u en ces o f th e o th er

a l tern ativ e,” p lay in g o u t “ b eh in d th e Iro n Cu rtain .” 1 Freed

o m o f In fo rma tio n Act S

o urce Bo o k: L eg isla tive Ma teria l s , C a ses, Articles 7 8 (1 9 7 4); see a lso id

. at 8 3 (callin g a “ p o licy o f secrecy

. . . t h e co rn ersto n e

o f a to talitarian b u re a u c r acy ”). A n d b eh i n d th e Iro n Cu rtain

, w h ere in f o rm in g w as w id esp read

, in f o rm an t s o f

ten “ s n i tch ed ” o n th eir riv als f or p erso n al g ain

. See, e.g

. , Ro b ert Gellately

, Den un cia tio n s i n Twen tieth

Cen tu ry Germa n

y: Asp ects o

f S elf-Po l i c i n g i n th e Th ird Reich a n d th e Germa n Demo cra tic Rep u b lic

, 6 8 J

. Mo d ern H i st. 9 3 1
, 9 4 4

– 5 0, 9 5 6 (1 9 9 6) (d o cu

m en tin g th e p rev alen ce o f in f o rm i n g f o r p erso n al g ain in Nazi an d co m

m u n ist Germ an y ).P R U D E N T I A L L O C A T I O N S L L C V

. HUD 37

C.

Recog niz ing the p ublic interest in disclosing informants’

names does not, by any m eans, preclude the application o f Ex e m p tion 6. Had HUD produced evidence ( in camera , if
necessary ) c o ncerning its informants’ vulnerability to retaliation, for ex ample, that personal privacy interest mig ht well outweig h the public interest in disclosure, r endering d i s c l o s ure o f the informants’ identities “clearly unwarran t e d

. ”

That is not, however, the balance struck by the majority

. To t h e contrary , it arrives at a b alance unsupported by the

r e c o r d : I t assumes a p ersonal privacy interest where there
may well be none, and it ig nores countervailing interests that
g o bey ond g overnmental misconduct. Ag ain, I would remand for further development of the record.

I I

.

The majori t y ’s treatment of this case is all the more frustrating because it is unnecessary

. The history of this case establishes the backg round for understand i n g why : I n our initial resolution of the matter, we reman ded for f urther factual development a s to the personal privacy interests o f the informants on the g rounds articulated above, supra Part I .A. Prudential L o ca t i o n s , 648 F .3d at 778–79. I n a petition for reheari n g, however, the g overnment complained that demanding some evidence of a personal privacy interest would burden its administration of the statute, and soug h t a

more deferential rule. I n r e v ersing c o u r s e, today ’s decision would seem to have answered the g overnment’s ca l l

. The Supreme Court, however, has commanded us to refuse s u ch invitations to enervate FO I A

. I n a n y case, Cong ress hasP R U D E N T I A L L O C A T I O N S L L C V

. HUD 38

already provided less burdensome means for the g overnment to protect its informants.

A.

The premise of the g overnment’s objection i s s ound
enoug h: The F OI A is a burden. See, e.g. , Antonin Scalia, The Freedom of

Information Act Has No Clothes

, Reg ulation, Mar./Apr. 1982, at 15 ( quipp i n g t hat F OI A is “the Sistine Chapel of cost-benefit analy sis ig nored”). I n 2 0 1 2 alone, HUD fielded some 2,544 F OI A requests, which it processed

w i t h the e quivalent of over thirty staff members a t a n ag g r eg ate cost of o ver $ 3 million (not counti n g l i tig ation

ex p enses). U

. S

. D ep’t of Housing a nd Urban Dev., 2012 Annual F OI A Report, at 6, 18 (2012).

B u t these costs canno t b e dismissed a s useless

e x p e n ditures. Cong ress imposed them for a reason—to “ensure an informed citiz enry , vital to the fun c tioning of a democratic society

, needed to c heck a g ainst corruption and to hold the g overnors accountable to the g overned.” John Doe Agency v. John Doe Corp.
, 493 U.S. 146, 152 (1989) (citation and quotation marks omitted). Consistent with the objective of facilitating disclo s ure, the Supreme Court has repeatedly commanded that F OI A’s ex emp tions are ex clusive a nd “‘narrowly construed.’” Milner v. U.S. De p ’ t of Navy
, 131 S. Ct. 1259, 1262 ( 2011) (quoting FBI v. Abramson

, 456 U.S. 615, 630 (1982)); see also id. at 1265–66 (collecting additional Supreme Co u r t c a s e s ). I ndeed, recent jurisprudence has taken a sharply tex tual appro a c h to interp r eting F OI A e x emptions. See Peter L

. Strauss et al., Gellhorn and B

yse’s Administr ative Law: Cases and Comments 471 (11th ed. 2011) (citing , as ex amples, Milner

, 131 S. Ct. 1259, and AT & T , 131 S. Ct. 1177).P R U D E N T I A L L O C A T I O N S L L C V

. HUD 39

This Court cannot relieve the government of the burden
t h a t Cong ress ex pressly placed upon it. Althoug h a per s e rule protecting the identify of g overnment informants would be simple to administer

, “we are n ot free to eng r aft that policy choice onto the st a t u t e that Cong ress passed.” U .S. Dep’t of Justice v. Landano

, 508 U.S. 165, 181 (1993 )

. T o the contrary , Cong ress “created a sch e m e of categ orical

ex c lusion; it did not invite a judicial weig hing of the benefits and evils of disclosure on a case-by -case basis.” Abramson

, 456 U.S. at 631.

This Court should, of course, seek to develop “workable rules” for the ag encies to follow, Reporters Comm.
, 489 U.S.
at 779, but o n l y w i thin the confines of the ex emptions Cong r ess created. Milner

, for instance, rejected on tex tual
g rounds a long -settled interpretation of Ex emption 2, despite the dang er that disclosure mig ht “ w r e ak havoc and make catastrophe more likely .” 131 S. Ct. at 1271 (internal quotation marks and brackets omitted). The Court reasoned that, if “ Cong ress has n ot enacted the FO I A e x emption the Governm e nt desires,” or if the e x emption that Cong ress enacted proves unworkable, then the g overnme n t —here, HUD—may

take its complaint to Cong ress. Id.

I n any c a s e , demanding some evidence with which a reviewing court can substantiate and evaluate the nature and
mag nitu d e o f a putative personal p r ivacy interest is not especially burdensome. T a ke Landano : That cas e r e q uired

an ag ency invoking F OI A e x emption 7(D) t o protect the identify of informants to “point to more narrowly d e f ined circumstances that w ill support” the application of that

ex e mption. L a n d

ano , 508 U.S. at 179. Such a “particulariz ed approach,” the Court held, “is consistent withP R U D E N T I A L L O C A T I O N S L L C V

. HUD 40

Cong r ess’ intent t o provide workable rules of F OI A disclosure.” Id. at 180 (internal quotation marks omitted).

I would require no more. Such e v i dence need n ot be adduced via elaborate, c o s t ly procedures; affidavits that “contain reasonably detailed descriptions of the doc u m ents and alleg e facts sufficient to establish a n ex emption” suffice. Bowen v

. U. S

. Food & Drug Admin.

, 925 F .2d 1 2 25, 1227 (9th Cir. 1 9 91). I n those r a r e circumstances t h a t s u ch affidavits would themselves compromise t he identity o f informants, they may be reviewed in camera

. Landano

, 508 U.S. at 180.

B

.

I n addition, as the majority recog niz es, Maj. Op. 19–20, much of the difficulty the g overnment has p utatively
encountere d in protecting the identity of voluntary
g overnment i nformers under Ex emption 6 is of its o wn creation. F OI A includes a separate ex emption e x pressly desig ned to facilitate the p rotection o f informants, but the
g overnment did not invoke it here.

Ex emption 7(D) authoriz es withholding “r e c ords o r information c ompiled for law enforcement purposes, but only
to the ex ten t ” that disclosure “could reasonably be ex pected
to disclose the identity of a co n f i d en t i al source

. . . . ” 5 U.S.C. § 552(b)(7)(D) (emphasis added). “[ A] source is ‘confidential,’” under this ex emption

, “ i f it ‘provided information under an ex press assurance of confidentiality or in circumstances f

rom w h i ch such a

n assurance could be reasonably inferred.’” Rosenfeld v. U.S. Dep’t of Justice
, 57 F .3d 8 03, 814 (9th Cir. 1995) (quoting Landano

, 508 U.S.
at 172). The ex emption applies e qually to the enforcement o fP R U D E N T I A L L O C A T I O N S L L C V

. HUD 41

civil and crimina l law. Church of S cientology Int’l v

. IRS
, 9 9 5 F.2d 9 16, 919 (9th Cir. 1 993). I ts application is n o t conting ent on the e x istence of a personal privacy interest in nondisclosure, and does n o t require balancing that interest
ag ainst the interest in disclosure. To the contrary , Ex emption 7(D) represents Cong ress’ own assessment of the appropriate balance when it comes to informants.

HUD h as n ot invoked that e x emption here. W h ether it could sustain HUD’s nondisclosure of t h ese informants’ names is thus a question for another day and another court.

The very ex istence of Ex e mption 7(D), however, strong ly implies that Ex emption 6 a pplies quite narrowl y , if at all, to information concerning g overnment informant s

. “ ‘[ I ] t is a commonplace of statutory co n s t ruction that the specific
g overns the g eneral.’ That is particular l y true where, a s [ here]

, ‘Cong ress has enacted a comp rehensive scheme a nd has deliberately targ eted specific pro b l ems with specific

s o lutions.’” RadLAX Gateway Hotel, LLC v. Amalgamated Bank

, 1 32 S. Ct. 2065, 2071 (2012) (quoting M orales v

. Trans W orld Airlines, Inc.
, 504 U.S. 374, 3 8 4 (1992), a nd Varity Corp. v. Howe
, 5 16 U.S. 4 89, 519 (1996) (Thomas, J
., dissenting )). Ex emption 7(D) specifically applies to the withholding of information provided by informants. And it, unlike Ex emption 6
, sets a condition, requiring that a ny such informa nt b e assured that his identity w ill remain confidential. G iven this sta t utory scheme, Ex emption 7(D)—not Ex e mption 6—oug h t to control the g overnment’s request to withhold information concerning its informants. 8

8 T h e sam e p oin t ap p lies w ith ev en g reater f orce to Ex em

p tio n 7 (C),

w h ich th e m aj o rity u rg es th e g o v ern m en t to in v o k e in t h e f u tu re. Maj

. Op

. 1 9

– 2 0

. Ex em

p tio n 7 (C) is p art o f th e v ery sam e su b sectio n o f FOIA asP R U D E N T I A L L O C A T I O N S L L C V

. HUD 42

Mo r e over, HUD’s leg itimate d e sire to withhold informants’ identities can be readily accommodated b y implementing procedures to document HUD’s assurance that informants’ names would b e k ept confidential. W here “the Government h as other tools at hand to shield” the information it seeks to w ithhold, Milner

, 131 S. Ct. at 1 271, ju d i cial distortion o f other of F OI A’s narrow ex emptions, to avoid the requirements of the most directly applicable o n e , i s unnecessary

as well as illeg itimate.

HUD, and other federal ag encies, would be well advised
to restrict their invocation of F OI A ex emptions for voluntary informants to Ex emption 7(D). H e r e, Prudential failed to contest whether HUD’s correspondence with the informants qualified as “similar f

iles” within the meaning of Ex emption 6. Future plaintiffs will b e less reticent. Meanwhile, the majority

, while not rejecting their pertinence, does not weig h in its analy sis the full rang e of the public interests in d isclosure, seeming ly on the g round of inadequate invo c a t i o n

. F uture litig ants, I suspect, w ill be more specific in cases like this one in articulating the public interests in dis c l o s u r e, so future panels will conduct a more complete b a l a n cing analy sis.

CONCL USI ON

F or all these reasons, I

respectfully

dissent.

Ex em p tio n 7 (D), so t

h e g en eral/sp ecif

ic can o n sh o u ld h av e p articu lar f o rce.