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Kowack v. United States Forest Service

United States Court of Appeals, Ninth Circuit

September 9, 2014

MARK KOWACK, Plaintiff-Appellant,
v.
UNITED STATES FOREST SERVICE; THOMAS TIDWELL, Chief of the United States Forest Service, Defendants-Appellees

Argued and Submitted, Seattle, Washington April 10, 2014

Appeal from the United States District Court for the District of Montana. D.C. No. 9:11-cv-00095-DWM. Donald W. Molloy, District Judge, Presiding.

Freedom of Information Act

The panel reversed in part the district court's summary judgment entered in favor of the United States Forest Service in an action challenging the Forest Service's response to a Freedom of Information Act request.

Mark Kowack, a teacher in the Forest Service's Job Corps Program, filed a Freedom of Information Act (" FOIA" ) request to obtain records pertaining to a misconduct investigation. The Forest Service responded that it had located responsive pages, but withheld a number of pages under certain FOIA Exemptions. After an administrative appeal, the agency disclosed 188 pages of documents, many of which were heavily redacted. The district court ordered the Forest Service to create a Vaughn index describing each document and explaining why each document was exempt from disclosure.

Concerning Kowack's challenge to redactions to twenty-two pages of witness statements made to an investigator by employees other than himself, the panel held that it did not have enough information to assess whether the Forest Service properly redacted the documents pursuant to FOIA Exemption 6, the personal privacy exemption. Concerning Kowack's challenge to redactions made to seventeen pages of administrative documents and reports created by the agency investigator and redacted under FOIA Exemption 6 and FOIA Exemption 5 (which protects certain intra-agency records), the panel held that Exemption 6 did not justify non-disclosure of the documents and there was insufficient information to determine whether Exemption 5 applied. Concerning Kowack's challenge to the redaction of grievance-related documents created by the National Federation of Employees and complaints made by employees other than Kowack, the panel held that the documents were properly withheld under FOIA Exemption 6.

The panel remanded to the district court to order the government to produce a more detailed Vaughn index with regard to the first two categories of documents, and, if that was insufficient, to conduct an in camera review. The panel directed the district court to disclose the documents if the government failed to meet its burden. The panel held that the remaining redactions were proper.

Stacey Weldele-Wade (argued), Antonioli and Wade, P.C., Missoula, Montana, for Plaintiff-Appellant.

Michael W. Cotter, United States Attorney, George F. Darragh, Jr. (argued), Assistant United States Attorney, Great Falls, Montana, Karen Carrington, Office of General Counsel, U.S. Department of Agriculture, Charles Spricknall, Office of General Counsel, U.S. Department of Agriculture, Washington, D.C., for Defendant-Appellee.

Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson and Carlos T. Bea, Circuit Judges. Opinion by Chief Judge Kozinski.

OPINION

Page 1131

KOZINSKI, Chief Judge

Democracy functions ill in shadow, yet government bureaucracies are notoriously reluctant to reveal their internal processes. Recognizing this tension, Congress passed the Freedom of Information Act (" FOIA" ) in 1966. FOIA fosters transparency by adopting a baseline presumption that information in the hands of the government belongs to the people and must be disclosed on request. But some secrecy is necessary, so FOIA includes several narrow exemptions. We consider how much the government must explain to show that an exemption blocks the release of requested information.

I. Background

Mark Kowack teaches disadvantaged youth at the Trapper Creek Center in Darby, Montana as part of the Forest Service Job Corps Program. Kowack claims that in 2008 he " began experiencing threats, aggression, and workplace hostility from certain of his co-workers." He says he feared for the safety of himself and his students.

After Kowack filed a complaint and sought help from one of his senators, the Director of the Jobs Corps National Center launched an investigation into " allegations of work place violence, threatening ...


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