Fair Lines Am. Found. Inc. v. US Dep't of Commerce

619 F.Supp.3d 212

FAIR LINES AMERICA FOUNDATION INC., Plaintiff, v. US DEPARTMENT OF COMMERCE, et al., Defendants.

Civil Action No. 21-1361 (ABJ)

United States District Court, District of Columbia

Signed August 2, 2022

Jason B. Torchinsky, Holtzman Vogel PLLC, Washington, DC, Jonathan Philip Lienhard, Kenneth Clark Daines, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, for Plaintiff.

Jonathan D. Kossak, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Fair Lines America Foundation, Inc. brought this Freedom of Information Act ("FOIA") lawsuit against the Bureau of the Census and Department of Commerce on May 18, 2021. See Compl. [Dkt. # 1]. Both parties have filed motions for summary judgment. See Mem. of P. & A. in Supp. of Defs.' Mot for Summ. J. [Dkt. # 13-1] ("Defs.' Mot"); Mem. of P. & A. in Supp. of Pl.'s Combined Opp. to Defs.' Mot. and Cross-Mot. for Summ. J. [Dkt. # 14-1] ("Pl.'s Mot."). The motions are fully briefed. See Defs.' Reply in Supp. of Defs.' Mot. and Opp. to Pl.'s Mot. [Dkt. # 17] ("Defs.' Reply"); Pl.'s Reply in Supp. of Pl.'s Mot. [Dkt. # 19] ("Pl.'s Reply"). For the following reasons, plaintiff's motion will be DENIED, and defendants' motion will be GRANTED.

BACKGROUND

Every ten years, defendants are tasked with conducting the census: a count of the population of the United States. This duty is mandated by the United States Constitution, which "requires an 'actual Enumeration' of the population every 10 years and vests Congress with the authority to conduct that census 'in such Manner as they shall by Law direct.' " Wisconsin v. City of New York, 517 U.S. 1, 5, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996), quoting U.S. Const. art. I, § 2, cl. 3.

Defendants conducted the most recent census in the year 2020. As the Supreme Court has recognized, the census is a massive undertaking, but it is inevitably imperfect. "Although each [census] was designed with the goal of accomplishing an 'actual Enumeration' of the population, no census is recognized as having been wholly successful in achieving that goal." Wisconsin, 517 U.S. at 6, 116 S.Ct. 1091.

Despite consistent efforts to improve the quality of the count, errors persist. Persons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date, because they were not a resident of the country, or because they did not exist) are counted; and persons who should have been counted only once are counted twice.

Id. One particular issue is that a lack of responses can - and inevitably does - lead to an "undercount" of the population. Id. at 7, 116 S.Ct. 1091. "The Census Bureau has recognized the undercount as . . . [a] significant problem[ ], and in the past has devoted substantial effort toward achieving [its] reduction." Id. With this goal in mind, the Census Bureau does not simply rely on survey responses to count the population; it has devised methods to improve the accuracy of its count and to avoid undercounting.

One of these methods is that the Bureau "imputes" numbers based on other information it has collected. The Supreme Court has explained that the Census Bureau utilizes

different kinds of "imputation" depending upon the nature of the missing or confusing information. Where, for example, the missing or confused information concerns the existence of a housing unit, the Bureau speaks of "status imputation." Where the missing or confused information concerns whether a unit is vacant or occupied, the Bureau speaks of "occupancy imputation." And where the missing or confused information concerns the number of people living in a unit, the Bureau refers to "household size imputation." In each case, however, the Bureau proceeds in a somewhat similar way: It imputes the relevant information by inferring that the address or unit about which it is uncertain has the same population characteristics as those of a "nearby sample or 'donor' " address or unit — e.g., its "geographically closest neighbor of the same type (i.e., apartment or single-family dwelling) that did not return a census questionnaire" by mail.

Utah v. Evans, 536 U.S. 452, 458, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002) (emphasis omitted).

One way defendants sought to obtain an accurate count in 2020 was a methodology called "Group Quarters Count Imputation" ("GQCI"). Pl.'s Mot. at 1. Defendants describe "group quarters" as

places where people live or stay in a group living arrangement that is owned or managed by an organization providing housing and/or services for the residents. Group quarters differ from typical household living arrangements because the people living in them are usually not related to one another. Group quarters include such places as college residence halls, residential treatment centers, skilled nursing facilities, group homes, military barracks, prisons, and worker dormitories.

Second Decl. of John M. Abowd, Ex. 1 to Defs.' Mot. [Dkt. # 13-3] ("Abowd Decl.") ¶ 63.¹ After defendants' "review indicated anomalies" in its count of group quarters, id. ¶ 64, they

used processing information from the group quarters enumeration records, group quarters advance contact records, and administrative data to determine whether records were double counted, appropriately counted, or missing. The GQCI resolved the status of group quarters addresses for frame eligibility (occupied or not; unoccupied group quarters are deleted from the census frame) and, if occupied, the status of persons residing in the group quarters—eliminating duplicates and imputing missing persons.

Id. ¶ 66.

"Due to its concerns about the Census Bureau's lack of transparency in its methodology, Plaintiff filed a FOIA Request seeking information to help inform the public about the impact of GQCI on the 2020 Census, as well as the extent to which it was employed in the enumeration." Pl.'s Mot. at 2. The original FOIA request has been narrowed down throughout this litigation, and now plaintiff "only seeks documents identifying the total population (number of individuals) imputed statewide by the Census Bureau for group quarters for each U.S. state." Id. (internal quotation marks and citation omitted). In short, plaintiff wishes to know how many individuals were imputed by the GQCI process in each state.

Defendants object to producing this information and argue that FOIA Exemption 3 applies. Exemption 3 states that FOIA "does not apply to matters that are specifically exempted from disclosure by statute . . . if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3)(A)(i).² Defendants' position is that "the Census Act's confidentiality provisions, 13 U.S.C. §§ 8(b) & 9," Defs.' Mot. at 1, require that they not produce the requested information because its release would inevitably allow third parties to "reconstruct[ ]" the larger dataset and then identify the private information of individual people counted. Id. at 21.

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party's motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must be "genuinely in issue" in order for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted).

"[S]ummary judgment may be granted on the basis of agency affidavits" in FOIA cases, when those affidavits "contain reasonable specificity of detail rather than merely conclusory statements," and when "they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). See also Chambers v. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) ("In a suit seeking agency documents—whether under the Privacy Act or FOIA—'[a]t the summary judgment stage . . . the court may rely on a reasonably detailed affidavit.' "). A plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through "purely speculative claims about the existence and discoverability of other...