Case Detail

FOIA Project Annotation: On remand from the Ninth Circuit, a federal court in Montana has ruled that the Forest Service improperly redacted personal information from records pertaining to a hostile workplace investigation of the Trapper Creek Job Corps Center. The investigation was conducted by the agency based on complaints filed by Mark Kowack, an employee of the Center. The investigation concluded that Kowack's allegations were not substantiated. Kowack then filed a FOIA request for records of the investigation. After portions of the records were withheld by the Forest Service under Exemption 5 (privileges) and Exemption 6 (invasion of privacy), Kowack filed suit. Based on the agency's Vaughn index, the district court ruled in favor of the agency. Kowack then appealed to the Ninth Circuit. The Ninth Circuit reversed, finding the agency's Vaughn index seriously inadequate and sent the case back to the district court. There, the agency provided a supplemental Vaughn index. The district court found that Vaughn index inadequate and after reviewing the documents, which included witness statements and administrative documents, the court found the agency had continued to redact more information than was appropriate under the Ninth Circuit's ruling. The Forest Service argued that Center employees could face retaliation and embarrassment as the result of greater disclosure. But after reviewing the records in camera, the court noted that "much of the redacted information does not implicate a privacy interest, but merely casts a negative light on the operation of the Center or includes comments and opinions that are not identifying in nature." The court added that "there is no cognizable privacy interest in information that references or describes Kowack alone. Exemption 6 cannot be invoked to withhold from a requester information pertaining only to him or herself." Recognizing a public interest in disclosure of some of the information, the court pointed out that "in camera review shows that much of the content of the witness statements and administrative documents provides insight into the operations and management of the Center. This kind of information sheds light on the Forest Service's performance of its statutory duties and lets the citizens know what their government is up to." Balancing the privacy interest against the public interest in disclosure, the court observed that "the challenge in this case is providing a complete and accurate record of whether the Forest Service, as an agency, acted appropriately under the circumstances." The court indicated that "here, the disclosure of certain personal information is necessary to provide an accurate picture of the agency conduct." The court added that "the public interest in disclosing most of the substantive content of the witness statements and the summaries is only strengthened by the divergent conclusions one could draw from reviewing the redacted and unredacted documents. Accordingly, the reasonably segregable portions of the record must be disclosed."
Issues: Exemption 6 - Invasion of privacy, Litigation - In camera review

Date Filed	Doc #	Docket Text
2011-06-27	1	COMPLAINT against All Defendants (Filing fee $350 receipt number 0977-903793), filed by Mark Kowack. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet) (NOS, ) (Entered: 06/28/2011)
2011-06-28	2	Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General. Original mailed to Plaintiff's counsel this date. (NOS, ) (Entered: 06/28/2011)
2011-07-26	3	Defendant's ANSWER to 1 Complaint by Thomas L. Tidwell, United States Forest Service. (Darragh, George) (Entered: 07/26/2011)
2011-07-27	4	PRELIMINARY PRETRIAL CONFERENCE ORDER: Preliminary Pretrial Statement due by 10/14/2011. Joint Discovery Plan due by 10/14/2011. Pretrial Conference set for 10/21/2011 at 1:30 PM in the Russell Smith Courthouse, Missoula, MT before Judge Donald W. Molloy. Signed by Judge Donald W. Molloy on 7/27/2011. (dle) (Entered: 07/27/2011)
2011-09-12	5	MOTION for In-Camera Inspection Stacey Weldele-Wade appearing for Plaintiff Mark Kowack (Weldele-Wade, Stacey) (Entered: 09/12/2011)
2011-09-12		NOTICE REGARDING ELECTRONIC DATE: re 5 MOTION for In-Camera Inspection . The signature on this document does not comply with Local Rules or the CM/ECF Administrative Procedures Manual, or the document is not dated. This notice is for your information for future filings. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (BAW, ) (Entered: 09/12/2011)
2011-09-19	6	RESPONSE to Motion re 5 MOTION for In-Camera Inspection filed by Thomas L. Tidwell, United States Forest Service. (Darragh, George) (Entered: 09/19/2011)
2011-09-20	7	NOTICE re 5 by Mark Kowack to Court (Weldele-Wade, Stacey) . (Entered: 09/20/2011)
2011-09-29	8	REPLY to Response to Motion re 5 MOTION for In-Camera Inspection filed by Mark Kowack. (Weldele-Wade, Stacey) (Entered: 09/29/2011)
2011-09-30	9	Notice of Correction: re 8 Reply to Response to Motion; Counsel did not file a Certificate of Compliance per Local Rule 7.1(d)(2). Counsel to file a separate Notice of Certificate of Compliance re document 8 . (BAW, ) (Entered: 09/30/2011)
2011-09-30	10	Brief/Response to Order re 8 Reply to Response to Motion Certificate of Compliance for Reply Brief filed by Mark Kowack. (Weldele-Wade, Stacey) . (Entered: 09/30/2011)
2011-09-30		Notice of Incorrect Docket Event: re 10 Brief/Response to Order. Incorrect event used: brief/response to order. correct event to use: notice. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. COUNSEL TO REFILE CERTIFICATE OF COMPLIANCE USING "Notice". (BAW, ) (Entered: 09/30/2011)
2011-10-04	11	ORDER denying 5 Motion for an in camera inspection of documents. IT IS FURTHER ORDERED that Defendants shall file a public Vaughn Index and their motion for summary judgment within 30 days of this Order, and that all deadlines in the 7/7/2011 Order are VACATED. Signed by Judge Donald W. Molloy on 10/4/2011. (dle) (Entered: 10/04/2011)
2011-10-06	12	NOTICE by Mark Kowack Certificate of Compliance Document No. 8 (Weldele-Wade, Stacey) (Entered: 10/06/2011)
2011-11-02	13	MOTION for Summary Judgment George F. Darragh, Jr appearing for Defendants Thomas L. Tidwell, United States Forest Service (Darragh, George) (Entered: 11/02/2011)
2011-11-02	14	Brief/Memorandum in Support re 13 MOTION for Summary Judgment filed by Thomas L. Tidwell, United States Forest Service. (Darragh, George) (Entered: 11/02/2011)
2011-11-02	15	Statement of Undisputed Fact re: 13 MOTION for Summary Judgment by Thomas L. Tidwell, United States Forest Service filed by Thomas L. Tidwell, United States Forest Service. (Attachments: # 1 Attachment 1, Turner Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Darragh, George) (Entered: 11/02/2011)
2011-11-23	16	RESPONSE to Motion re 13 MOTION for Summary Judgment filed by Mark Kowack. (Weldele-Wade, Stacey) (Entered: 11/23/2011)
2011-11-23	17	Statement of Genuine Issues re: 14 Brief/Memorandum in Support, 16 Response to Motion, 13 MOTION for Summary Judgment , 15 Statement of Undisputed Fact, filed by Mark Kowack. (Attachments: # 1 Affidavit Kowack, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit 2) (Weldele-Wade, Stacey) (Entered: 11/23/2011)
2011-12-01	18	MOTION for Extension of Time to File Response/Reply as to 16 Response to Motion George F. Darragh, Jr appearing for Defendants Thomas L. Tidwell, United States Forest Service (Attachments: # 1 Text of Proposed Order) (Darragh, George) (Entered: 12/01/2011)
2011-12-01	19	ORDER granting 18 Motion for Extension of Time to File Response/Reply re 13 MOTION for Summary Judgment. Replies due by 12/21/2011. Signed by Judge Donald W. Molloy on 12/1/2011. (dle) (Entered: 12/01/2011)
2011-12-21	20	REPLY to Response to Motion re 13 MOTION for Summary Judgment filed by Thomas L. Tidwell, United States Forest Service. (Attachments: # 1 Attachment No. 1 - Departmental Regulation 4070-735-001, # 2 Attachment No. 2 - Declaration of Lisa Fisher, # 3 Attachment No. 3 - Amended Declaration of Sharon L. Turner) (Darragh, George) (Entered: 12/21/2011)
2012-08-24	21	ORDER granting 13 Motion for Summary Judgment Signed by Judge Donald W. Molloy on 8/24/2012. (BAW, ) (Entered: 08/24/2012)
2012-08-24	22	JUDGMENT entered in favor of United States Forest Service, Thomas L. Tidwell and against Mark Kowack pursuant to Order 21 . (BAW, ) (Entered: 08/24/2012)
2012-10-22	23	NOTICE OF APPEAL as to 21 Order on Motion for Summary Judgment, 22 Clerk's Judgment by Mark Kowack. Filing fee $ 455, receipt number 0977-1142120. (Attachments: # 1 Supplement Representation Statement) (Weldele-Wade, Stacey) (Entered: 10/22/2012)
2012-10-22	24	USCA Time Scheduling Order as to 23 Notice of Appeal filed by Mark Kowack. (ASG, ) (Entered: 10/22/2012)
2012-10-22		USCA Case Number 12-35864 for 23 Notice of Appeal filed by Mark Kowack. (ASG, ) (Entered: 10/22/2012)
2014-09-09	25	OPINION/ORDER of USCA as to 23 Notice of Appeal filed by Mark Kowack: Reversed in part and remanded. Costs to Appellant. (NOS, ) (Entered: 09/09/2014)
2014-11-04	26	MANDATE of USCA as to 23 Notice of Appeal filed by Mark Kowack. (NOS, ) (Entered: 11/05/2014)
2015-01-05	27	ORDER re 25 USCA Order. Defendants are required to produce a more detailed Vaughn index for the witness statements and the administrative documents and reports created by the investigator. Signed by Judge Donald W. Molloy on 1/5/2015. (dle) (Entered: 01/05/2015)
2015-01-05		Set/Reset Deadlines: Response to Order due by 2/4/2015. (NOS, ) (Entered: 01/08/2015)
2015-02-04	28	NOTICE by Thomas L. Tidwell, United States Forest Service of Filing Supplemental Vaughn Index (Attachments: # 1 Declaration of Sara L. Sullivan, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Darragh, George) (Entered: 02/04/2015)
2015-02-05	29	MOTION for Leave to File Response to Supp. Vaughn Index Stacey Weldele-Wade appearing for Plaintiff Mark Kowack (Attachments: # 1 Text of Proposed Order Exhibit) (Weldele-Wade, Stacey) (Entered: 02/05/2015)
2015-02-06	30	ORDER granting 29 MOTION for Leave to File Response to Supp. Vaughn Index filed by Mark Kowack. Plaintiff may file a response to the Supplemental Vaughn Index on or before 3/9/15. Signed by Judge Donald W. Molloy on 2/6/2015. (NOS, ) (Entered: 02/06/2015)
2015-03-06	31	Brief/Response to Order re 30 Order and 28 Notice (Other). Response to Suppl Vaughn Index filed by Mark Kowack. (Weldele-Wade, Stacey) Modified on 3/6/2015 to amend linkage (NOS, ). (Entered: 03/06/2015)
2015-03-09	32	MOTION for Leave to File a Reply to Plaintiff's Response to Supplemental Vaughn Index George F. Darragh, Jr appearing for Defendants Thomas L. Tidwell, United States Forest Service (Attachments: # 1 Text of Proposed Order) (Darragh, George) (Entered: 03/09/2015)
2015-03-23	33	Order Setting: Forest Service to file unredacted witness statements and administrative records for in camera review by 4/6/2015. Motions terminated: 32 MOTION for Leave to File a Reply to Plaintiff's Response to Supplemental Vaughn Index filed by Thomas L. Tidwell, United States Forest Service. Signed by Judge Donald W. Molloy on 3/23/2015. (dle) (Entered: 03/23/2015)
2015-04-03	34	NOTICE by Thomas L. Tidwell, United States Forest Service re 33 Order Setting, Terminate Motions,, [NOTICE OF FILING UNREDACTED WITNESS STATEMENTS AND ADMINISTRATIVE RECORDS UNDER SEAL FOR IN CAMERA REVIEW] (Darragh, George) (Entered: 04/03/2015)
2015-04-03	35	In Camera Document(s) filed for review per Order of 03-23-15 (Doc. 33) re: 34 Notice (Other) filed by Thomas L. Tidwell, United States Forest Service. (Darragh, George) (Entered: 04/03/2015)
2015-04-06	36	ORDER. The Forest Service must file the redacted version of the documents filed at Doc. 35 on or before April 8, 2015. Signed by Judge Donald W. Molloy on 4/6/2015. (NOS, ) (Entered: 04/06/2015)
2015-04-08	37	NOTICE by Thomas L. Tidwell, United States Forest Service re 36 Order (of Filing Redacted Witness Statements and Administrative Records) (Attachments: # 1 Redacted Witness Statements and Administrative Records) (Darragh, George) (Entered: 04/08/2015)
2015-06-16	38	OPINION and ORDER. IT IS ORDERED that the Forest Service provide a less redacted version of the relevant documents to Kowack on or before July 8, 2015. IT IS FURTHER ORDERED that each party must file a brief on the question of attorney's fees on or before June 29, 2015. Briefs are not to exceed ten (10) pages. Signed by Judge Donald W. Molloy on 6/16/2015. (NOS, ) (Appendices attached as sealed documents on 6/16/2015 with access given only to Defendants; NEF regenerated: # 1 Witness Statement Appendix, # 2 Administrative Documents Appendix) (NOS, ). (Entered: 06/16/2015)
2015-06-18	39	Joint MOTION for Extension of Time to File Briefs or to File stipulation on Attorney's Fees George F. Darragh, Jr appearing for Defendants Thomas L. Tidwell, United States Forest Service (Attachments: # 1 Text of Proposed Order) (Darragh, George) (Entered: 06/18/2015)
2015-06-22	40	ORDER granting 39 Motion for Extension of Time to File. Signed by Judge Donald W. Molloy on 6/22/2015. (dle) (Entered: 06/22/2015)
2015-07-01	41	NOTICE by Thomas L. Tidwell, United States Forest Service of Filing Less Redacted Witness Statements and Administrative Records (Attachments: # 1 Less Redacted Documents) (Darragh, George) (Entered: 07/01/2015)
2015-07-23	42	STIPULATION to Settle Plaintiff's Claim for Attorney's Fees and Costs by United States Forest Service. (Attachments: # 1 Text of Proposed Order) (Darragh, George) (Entered: 07/23/2015)
2015-07-24	43	ORDER that the Joint Stipulation 42 is APPROVED and its terms ADOPTED. Signed by Judge Donald W. Molloy on 7/24/2015. (ASG, ) (Entered: 07/24/2015)
2015-07-24	44	CLERK'S JUDGMENT in favor Plaintiff and against Defendant to the extent provided in the Opinion and Order 38 . (ASG, ) (Entered: 07/24/2015)
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