Feds Need not Out Gay Staffers to Watchdog

     (CN) – A conservative-run watchdog seeking records about a conference for gay lawyers cannot access papers that would out Justice Department employees, a federal judge ruled.
     Judicial Watch Inc. had its eye on the National LGBT Bar Association’s 2012 Lavender Law Conference and Career Fair because U.S. Attorney General Eric Holder spoke at it.
     It asked the DOJ Office of Information Policy to release its records on the event, and by December 2013 received 135 pages with redactions.
     Another two pages were later released, but Judicial Watch took issue with just one category of the 66 fully withheld documents.
     Citing Exemption (6)-(4) of the Freedom of Information Act (FOIA), the office had withheld emails “discussing the drafting of the Attorney General’s speech which discuss/infer the sexual orientation of certain department employees.”
     FOIA Exemption 6 prevents the release of personnel and medical files and other records whose release “would constitute a clearly unwarranted invasion of personal privacy.”
     Judicial Watch argued that the invasion-of-privacy exemption should not apply because it was not looking for employee names. But in its opposition brief, the Justice Department countered that “the e-mails on their face would identify the individuals even with the redaction of names and/or their job titles.”
     After reviewing the material, U.S. District Judge Ellen Huvelle granted the Justice Department summary judgment and denied Judicial Watch’s motion for the same on Monday.
     “Based on its in camera review of the e-mails, the court agrees with the agency’s determination that based on the very small number of individuals that are referenced, their identities – which plaintiff agrees can be protected – could easily be determined based on the context of the e-mails,” Huvelle wrote.
     Judicial Watch argued that public interest in the emails outweighs privacy concerns because there is a “significant public interest [that] exists in the disclosure of government officials’ attempts to apply stereotypes and speculate on their colleagues’ sexual orientation,” according to the opinion.
     Judge Huvelle disagreed, calling those public interests “relatively inconsequential” compared with employee privacy.
     The court also deliberated Exemption 5 withholdings, even though Judicial Watch had specifically challenged redactions under Exemption 6.
     “The court is satisfied that parts of the e-mails at issue were properly withheld pursuant to Exemption 5,” wrote Judge Huvell. “But, even if Exemption 5 had not been properly invoked, the court would reach the same conclusion under Exemption 6.”
     FOIA Exemption 5 applies to agency documents that are both “predecisional and deliberative in nature.”
     They are protected because disclosure of such documents could harm the decision-making process, according to the opinion.

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