Insider Inc. v. General Services Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2023 Decided February 16, 2024
No. 22-5330
INSIDER INC.,
APPELLANT
v.
GENERAL SERVICES ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02653)
Christopher Bix Bettwy argued the cause and filed the
briefs for appellant. Matthew Topic entered an appearance.
Laura E. Myron, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were Brian
M. Boynton, Principal Deputy Assistant Attorney General, and
Daniel Tenny, Attorney.
Before: PILLARD and CHILDS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge CHILDS.

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CHILDS, Circuit Judge. Congress enacted the Freedom of
Information Act (“FOIA”) “to pierce the veil of administrative
secrecy and open agency action to the light of public scrutiny,”
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 31-32
(D.C. Cir. 2002), and thereby to “achieve greater transparency
in support of open government,” Jud. Watch, Inc. v. U.S. Dep’t
of Homeland Sec., 895 F.3d 770, 783 (D.C. Cir. 2018). In
furtherance of that goal, the FOIA allows members of the
public to request documents from federal agencies and requires
agencies to produce those documents, subject to certain
exceptions. See 5 U.S.C. § 552(a)(3).
In early 2021, the news organization Insider, Inc.
(“Insider”) submitted three FOIA requests for documents
relating to President Trump’s and Vice President Pence’s
outgoing transition teams. In response to Insider’s FOIA
requests, the United States General Services Administration
(“GSA”) produced several hundred pages of documents
relating to its expenditures on President Trump’s and Vice
President Pence’s outgoing transition teams. Among these
documents were two excel spreadsheets listing the salaries of
transition team members, one of which also included job titles,
from which the GSA redacted several low-level team
members’ names. In support of its redactions, the GSA
invoked FOIA Exemption 6, which protects “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). Insider sued the GSA to compel
production of the names, arguing that production is required by
the FOIA. The district court held the redactions proper, and so
it granted the GSA’s motion for summary judgment and denied
Insider’s corresponding motion. We agree and accordingly
affirm the district court’s summary judgment order.

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I.
In its FOIA requests, Insider sought: (1) “details about any
expenditures made from outgoing President Donald Trump’s
Presidential Transition Account,” (2) “all emailed
communications between GSA and representatives of former
President Donald Trump regarding expenditures from his
Presidential Transition account at GSA,” and (3) “all emailed
communications between GSA and representatives of former
Vice President Mike Pence regarding expenditures from his
Presidential Transition account at GSA” along with “any
available details of expenditures made from that account.”
GSA Br. 5.
In response to Insider’s request, the GSA produced over
three hundred documents, including two spreadsheets listing
the estimated salary and benefits costs for twenty-eight
members of the two transition teams. One of those spreadsheets
also contained job titles. However, the GSA redacted the first
and last names of nine of the team members listed on the
spreadsheets, on the basis of FOIA Exemption 6. After Insider
objected to the redactions, the GSA made two supplemental
productions, in which it released the names of four more
transition team employees. The GSA maintains that the five
remaining names are protected from disclosure under
Exemption 6 on the basis that “disclosure of the names would
constitute a clearly unwarranted invasion of personal privacy”
of “lower-level employees within [the offices of the former
President and former Vice President].”
The GSA explains its process for determining which
names to produce and which to withhold as follows. The GSA
first considered whether the transition team members were
public figures. The GSA produced the names of several
transition team members whom it determined to be public

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figures. For transition team members who were not public
figures, the GSA evaluated whether those individuals
nevertheless served in a sufficiently high-level role on the
transition team such that the public interest in disclosure
outweighed their privacy interests. To make this
determination, the GSA considered the salaries and job titles
listed on the spreadsheet. According to the GSA, a salary of
$60,000 or less indicates a low-level (likely clerical or
administrative) employee. In addition, job titles such as
“Personal Aide” and “Administrative Assistant to the Former
First Lady” indicates a low level of responsibility. The GSA
produced the names of several high-level transition team
members. Finally, the GSA evaluated whether any of the
remaining individuals had voluntarily disclosed their
involvement with the Trump transition team, such that their
privacy interest in the release of their name was diminished.
The GSA released the names of at least one transition team
member based on such voluntary public disclosure. Because
the GSA determined that five transition team members were
not public figures, did not serve in high-level roles within the
transition team, and had not voluntarily disclosed their
involvement with the Trump or Pence campaigns, it redacted
their names from the spreadsheets that it produced to Insider.
Insider brought the present lawsuit in district court,
challenging the propriety of GSA’s redaction. Both parties
moved for summary judgment. The district court held that the
GSA properly redacted the names of low-level transition team
members from the salary spreadsheets. It granted the GSA’s
motion for summary judgment and denied Insider’s. Insider
appeals.

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II.
We review the district court’s order on cross-motions for
summary judgment de novo. See Chambers v. U.S. Dep’t of
Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).
The FOIA is structured around a presumption that agency
documents should be subject to disclosure. Nat’l Ass’n of
Home Builders, 309 F.3d at 32. It requires federal agencies,
like the GSA, to produce, upon request, documents in their
possession “unless the documents fall within one of nine
enumerated exemptions.” U.S. Fish & Wildlife Serv. v. Sierra
Club, Inc., 592 U.S. 261, 267 (2021). As relevant here, one of
the enumerated exemptions is FOIA Exemption 6, which
exempts “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). We have
held that “personnel . . . and similar files” under FOIA
Exemption 6 includes “bits of personal information, such as
names and addresses, the release of which would ‘create[] a
palpable threat to privacy.’” Jud. Watch, Inc. v. FDA, 449 F.3d
141, 152 (D.C. Cir. 2006) (quoting Carter v. U.S. Dep’t of
Commerce, 830 F.3d 271, 278 (D.C. Cir. 2005)).
No party disputes the transition team members’ names
qualify as “personnel . . . and similar files.” To determine
whether the exemption applies, therefore, we must decide
whether “disclosure of [the names] would constitute a clearly
unwarranted invasion of personal privacy.” Id. We apply a
three-step process. Id. at 153. First, we ask whether the agency
has shown a privacy interest in the information being withheld.
Id. Second, if a privacy interest exists, we analyze whether the
party seeking production has shown a public interest in the
information. Id. Third, if both a privacy interest and public

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interest exist, we must then determine if the privacy interest
substantially outweighs the public interest. Id.
The first step is easily met here. Insider concedes that the
transition team members whose names the GSA withheld have
“a non-de minimis privacy interest” in the nondisclosure of
their names. See Insider Br. at 12. As private citizens, the
members of the transition team have a strong privacy interest
in their personal information. See Common Cause v. NRC, 674
F.2d 921, 938 (D.C. Cir. 1982) (The FOIA “provides greater
protection to private individuals, including applicants for
federal grants and officials of regulated private companies . . .
than to government officials with executive responsibilities.”).
That privacy interest is bolstered by the GSA’s showing that a
“significant privacy interest” in information that “might invite
unwanted intrusions,” Niskanen Ctr. v. FERC, 20 F.4th 787,
791 (D.C. Cir. 2021), exists here. As the GSA has shown, after
it released the names of other transition team members, Insider
contacted them and wrote news articles discussing them by
name. Moreover, some GSA employees involved in the
transition, and their families, were harassed by members of the
public through email and phone communications. Thus, the
transition team members have a substantial privacy interest in
the continued confidentiality of their names.
Having identified a substantial privacy interest in non-
disclosure, we turn to the second step and evaluate whether
Insider has articulated a public interest in disclosure. It has not.
The interests that Insider puts forth are not cognizable public
interests under the FOIA, because they relate to the activities
of private actors, the former executive officials on the transition
teams, instead of the activities of the GSA or other government
actors.

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The FOIA requires the government to provide
transparency about its own activities. See Fed. Lab. Rels. Auth.
v. U.S. Dep’t of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446,
1451 (D.C. Cir. 1989) (“[U]nder FOIA the disclosure interest
must be measured in terms of its relation to FOIA’s central
purpose—to ensure that the Government’s activities be opened
to the sharp eye of public scrutiny.”). Thus, to be cognizable
under the FOIA, a public interest must sound in activities that
reveal information about the government itself; it cannot sound
in activities exclusively concerning non-government actors.
Compare U.S. Dep’t of Just. v. Reps. Comm. For Freedom of
Press, 489 U.S. 749, 773 (1989) (noting that FBI criminal
history records containing “information about private citizens .
. . reveals little or nothing about an agency’s own conduct,” and
thus holding that the public interest in those files was not
cognizable under the FOIA) with Sims v. CIA, 642 F.2d 562,
575 (D.C. Cir. 1980) (holding that Exemption 6 does not
protect names of non-government persons and institutions who
had contracted with the CIA to undertake highly controversial
research on the CIA’s behalf). Nor can it sound in activities
that concern only former government actors. Cf. Behar v. U.S.
Dep’t of Homeland Sec., 39 F.4th 81, 85, 94 (2d Cir. 2022) (An
incoming president was not a government actor for FOIA
purposes.).
Insider fails to show a public interest in the activities of the
government. Insider claims that it seeks information about
“[w]ho . . . the country’s most powerful executives entrust[ed]
and work[ed] the closest with . . . in executing the somber duty
of ensuring the peaceful transfer of power.” Insider Br. at 18.
It divides this asserted interest into two principal categories.
First, Insider claims that knowing the names of the transition
team members could “reveal possible ethical concerns”
relating to the membership and activities of the transition
teams. Id. at 14. Second, Insider claims that the names would

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serve a derivative purpose, of “facilitat[ing] interviews with the
media or other interested parties that would illuminate the
transition process.” Reply Br. at 9.
But these interests are not cognizable under the FOIA,
because, as Insider acknowledges, the transition teams are not
government entities, see Oral Argument 1:38-54, and Insider is
unable to articulate how information about non-governmental
entities like the transition teams would shed light on the
activities of the government. Insider makes no attempt to
connect its asserted public interests to its original request for
information relating to the GSA’s finances. And no connection
is apparent. The GSA does not hire the transition team
members, set the amount of their compensation, or control their
job responsibilities. See 3 U.S.C. § 102 note (Presidential
Transition Act § 3(a)(2), (5)). Insider also fails in its attempt
to connect the transition team members to the GSA’s activities
by relaying 1) that they are hired before the President and Vice
President leave office and 2) that they must be subject to an
ethics plan in the Memorandum of Understanding (“MOU”)
between the transition teams and the GSA. Although the
transition team members are chosen by the President and Vice
President while still in office, they are chosen to carry out non-
governmental roles. And while the GSA is required to enter
into an ethics plan with incoming administrations, no such
requirement applies to outgoing administrations. See 3 U.S.C.
§ 102 note (Presidential Transition Act § 4(g)). Moreover, with
respect to incoming administrations, the GSA has no control
over the content of the ethics plan in its MOU or power to
enforce it. Id. Thus, if Insider uncovered ethical violations in
the way that transition team members were hired or how they
carried out their job responsibilities, that information would
still not show what the government is up to.

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Additionally, even if information about the transition
teams could shed light on the GSA’s activities, Insider has not
explained how knowing the names of low-level transition team
members would do so. The GSA produced hundreds of pages
of financial information regarding its expenditures on the
transition, including the transition team members’ job titles,
salaries, and benefits information. The relevant question
before us is therefore whether, “given the information already
disclosed by [GSA], the incremental value served by disclosing
[a transition staffer’s] name outweighs that person’s privacy
interest.” American Immigration Lawyers v. Executive Office
for Immigration Review, 830 F.3d 667, 674 (D.C. Cir. 2016)
(internal quotation marks omitted). We conclude it does not.
Nor does Insider successfully articulate a public interest in
derivative uses of the information it seeks. According to
Insider, learning the identities of the transition team members
will allow it to contact those individuals as part of its
investigation, and through those conversations, learn of
possible government misconduct. Oral Argument 3:10-50.
The individuals on the transition team, it argues, may have
information regarding interactions between the outgoing
administration and FOIA-covered agencies, such as whether
confidential documents were properly returned to the National
Archives. Oral Argument 2:27-40. Insider fails to articulate a
cognizable public interest, however, because its argument is
purely speculative. While the Supreme Court has left open the
possibility that derivative uses could amount to a public interest
under some circumstances, it has suggested that the derivative
information sought must be more than speculative. See U.S.
Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) (“Mere
speculation about hypothetical public benefits cannot outweigh
a demonstrably significant invasion of privacy.”). Recognizing
a public interest in the name of any individual who might know
about government wrongdoing would create an exception that

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swallows the rule. And Insider does not articulate a non-
speculative basis to conclude that the transition team members
would lead it to information regarding government misconduct.
Insider’s reference to “media coverage expressing ethical
concerns about the members of former President Trump’s 2016
transition team,” Insider Br. at 15, for example, suggests
concerns about the former President and Vice President’s
activities—not those of the GSA.
Finally, the GSA’s production of some high-level
transition team members’ names has not waived the privacy
interests of low-level transition team members. When
evaluating whether it may withhold each piece of information,
the GSA must first consider whether any privacy interest exists
in the information. If it determines that there is no privacy
interest in the information, for example, because the person it
pertains to is a public figure or has already publicly disclosed
the information, then the GSA must disclose that information,
and it need not reach the second step of determining whether
there is a public interest in the information. Thus, the GSA’s
determination that some individuals waived their privacy
interest says nothing about whether a public interest exists in
that information. And even if the GSA itself thought the names
of high-level team members was a matter of public interest
under the FOIA, we conclude that any such interest is
overcome here by the private interests involved.
Where Insider has not identified a public interest
cognizable under the FOIA, its arguments about the “fraught”
Trump Administration transition, including concerns about
whether a “peaceful transition would be accomplished,” Insider
Br. at 4, make no difference. Even a very high level of public
concern about the activities of non-government actors (or
former government actors) cannot bring those activities within
the scope of the FOIA.

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*****
For the foregoing reasons, we affirm.
So ordered.

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