In Texas Public Policy Foundation v. United States Department of State, the Fifth Circuit held that the State Department must disclose the names and email addresses of rank-and-file employees pursuant to a FOIA request.  The opinion, written by Judge Wilson, forces the Trump Administration to choose whether to take its pitch to the Supreme Court.  Will the Trump Administration maintain its view that the public is not entitled to the details of certain Biden Administration deliberations—or will it let this one go?  Only time will tell.

The underlying FOIA request involves the Paris Agreement and, specifically, President Biden’s 2030 emissions reduction target.  The Texas Public Policy Foundation sought the materials on which the State Department had relied in advising President Biden to select that target.  Nine months passed—and all the Foundation had to show for it was an acknowledgment of receipt.  So, the Foundation sued the State Department.

The State Department eventually released a set of files—but when it did so, it redacted the names and agency email addresses of “rank-and-file”—rather than “policymaking”—employees.  It claimed that doing so was proper pursuant to FOIA Exemption 6, which carves out information contained in “personnel and medical files and similar files[,] the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”  The State Department has maintained its stance that the Foundation is not entitled to the names or email addresses.  The Foundation has maintained that it is. 

The Fifth Circuit ruled for the Foundation.  The majority opinion declined to reach whether the files were “similar” to “personnel and medical files,” as the district court had held, and instead determined that ‘disclosure of the underlying information does not ‘constitute a clearly unwarranted invasion of personal privacy.’ ”  In the majority’s view, the State Department “ha[d] not established that its employees have a significant interest in keeping private the fact that they participated in, and made particular contributions to, the development of a national emissions reduction pledge,” nor “that disclosure would result in harassment.”  And release of the redacted information, the majority reasoned, “would help the public learn  .   .   .  the seniority, backgrounds, and areas of expertise” of key State Department employees.

Judge Haynes dissented.  In her view, other circuits “have recognized privacy interests in similar circumstances and permitted agencies to redact their employees’ identities from FOIA responses.”

Mikaela Milligan (née Schulz) is an associate at a law firm in Washington, D.C.