Judge Must Reconsider Shielding Informants

      (CN) – A real estate company can get another chance to learn the names of informants who tipped off a federal agency about an alleged kickback scheme, the 9th Circuit ruled Thursday.

     The Honolulu-based federal appeals panel found that the U.S. Department of Housing and Urban Development (HUD) had failed to answer essential questions about whether its redaction of names on documents requested under the Freedom of Information Act (FOIA) met the law’s narrow exceptions related to privacy.
     Acting upon tips from industry insiders, HUD had twice investigated Prudential Locations for violations of anti-kickback laws. Prudential Locations responded in 2008 with a request to access all of the documents related to the probe – including the names of the tipsters.
     HUD eventually turned over hundreds of pages of documents, but blacked out a 2003 letter and a 2008 email that contained the names of its informants.
     Prudential sued, but Chief U.S. District Judge Susan Oki Mollway agreed with HUD that the redactions were justified under FOIA’s Exemption 6, which bars the release of information that could invade someone’s privacy.
     On appeal, the three-judge panel ruled that HUD had not provided enough information to account for the exemption, and remanded the case for another look.
     Such an inquiry “requires assessing the magnitude of the privacy interests at stake and the severity of the invasion of those interests that would be occasioned by disclosure,” Judge Marsha Berzon wrote for the court.
      “Here, we are faced with an additional, different question: How likely is it that disclosure would result in any privacy invasion at all?” the ruling states. “We remand because HUD has not provided a factual basis sufficient to answer any of those three questions.”
     “In light of the FOIA’s strong presumption in favor of disclosure, and the narrow reach of the FOIA exemptions, we cannot affirm the grant of summary judgment on the current record,” Berzon added.
     “While HUD has conjured the specter of privacy interests, it has not adduced evidence establishing such interests are actually at stake, or if they are, how much weight they should be accorded.”

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