Walston v. United States Department of Defense , 238 F. Supp. 3d 57 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
LINDA P. WALSTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-2202 (EGS)
)
UNITED STATES DEPARTMENT OF )
DEFENSE, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
The plaintiff, Linda P. Walston, filed this civil case
against the defendant, the United States Department of Defense
(“DOD”), alleging violations of the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. See Compl., ECF No. 1 ¶¶ 1-2, 19-20.
Currently pending before the Court is DOD’s motion for summary
judgment. Upon consideration of the motion, the response and
reply thereto, the applicable law, and the entire record, DOD’s
motion for summary judgment is GRANTED IN PART and DENIED IN
PART.
I. Background
Ms. Walston discovered that someone hacked her personal
computer on various occasions between 2010 and 2014 and, in the
course of that hacking activity, altered, deleted, or destroyed
certain of her computer files and operating systems. Def.’s
Statement of Material Facts (“Def.’s SMF”), ECF No. 12-1 ¶ 2;
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Pl.’s Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp.”), ECF No.
13 at 3; Pl.’s Statement of Material Facts (“Pl.’s SMF”), ECF
No. 13-1 ¶ 7. One of the computer forensics specialists that Ms.
Walston hired to identify the hacker suggested to her that the
hacker might have been an employee of the Defense Information
Systems Agency (“DISA”). Def.’s SMF ¶ 2; Pl.’s Opp. at 3; Pl.’s
SMF ¶ 7. DISA is a component of DOD. Compl. ¶ 3. Accordingly,
Ms. Walston filed a complaint with DOD’s Office of Inspector
General (“DOD OIG”) on September 2, 2014. Pl.’s SMF ¶ 7; Def.’s
Resp. to Pl.’s SMF, ECF No. 14-1 ¶ 7. The complaint alleged that
a DISA employee had hacked her computer, altered or deleted
files, and reported Ms. Walston’s activities to a third party.
Def.’s SMF ¶ 2. The complaint was delegated to DISA’s Office of
the Inspector General (“DISA OIG”) and assigned the case number
2014-0193. Pl.’s SMF ¶ 7; Def.’s Resp. to Pl.’s SMF ¶ 7.
On April 21, 2015, Ms. Walston filed a FOIA request with
DISA for “all documents, reports, records, statements, and files
that refer or relate to the DISA OIG complaint #2014-0193.”
Def.’s SMF ¶ 1. Eventually, on November 3, 2015, DISA responded
to Ms. Walston’s request by providing her with two redacted
documents: (1) a December 24, 2014 memorandum from DISA OIG to
DOD OIG concluding that Ms. Walston’s allegations that a DISA
employee had hacked her computer were unfounded and (2) the
report that provided the analysis undergirding the determination
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that the allegations were unfounded. Def.’s SMF ¶ 3; Pl.’s SMF ¶
11. Finding DISA’s records production inadequate, on November
13, 2015 Ms. Walston filed an administrative FOIA appeal, Def.’s
SMF ¶ 4; Pl.’s SMF ¶ 12, and ultimately filed this action
against DOD on December 18, 2015. Def.’s SMF ¶ 4; Pl.’s SMF ¶
13.
On March 7, 2016, DISA provided Ms. Walston with 13 pages
of emails among DISA analysts discussing their analyses of her
complaint that a DISA employee had hacked her computer. Def.’s
SMF ¶ 5; Pl.’s SMF ¶ 17. Ms. Walston, in turn, sent an email
through counsel asserting that DISA still had not provided all
of the documents and records that she had requested. Def.’s SMF
¶ 6; Pl.’s SMF ¶ 18. On March 23, 2016, DISA produced an
additional 32 pages of internal administrative documents and
documents that Ms. Walston had submitted to DISA. Def.’s SMF ¶
7; Pl.’s SMF ¶ 19.
On June 6, 2016, DOD filed its motion for summary judgment.
See Def.’s Mot. for Summ. J., ECF No. 12. DOD asserts that
summary judgment is warranted because it conducted an adequate
search for records in response to Ms. Walston’s FOIA request;
properly redacted its productions pursuant to the applicable
FOIA exemptions; and complied with FOIA’s segregability
requirement. See generally Def.’s Mem. in Supp. of Mot. for
Summ. J. (“Def.’s Mem. Supp.”), ECF No. 12. In her opposition,
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filed on July 11, 2016, Ms. Walston does not challenge the
propriety of DOD’s assertion of FOIA exemptions or its
compliance with FOIA’s segregability requirement. See Pl.’s Opp.
at 6. Instead, her only argument is that genuine issues of
material fact concerning the adequacy of DISA OIG’s document
search foreclose a grant of summary judgment as to that issue.
See id. at 7-11. On August 11, 2016, DOD filed its reply brief,
maintaining that an adequate search was conducted. See generally
Def.’s Reply, ECF No. 14. DOD’s motion is ripe for adjudication.
II. Standard of Review
Summary judgment is granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56; Waterhouse v. District of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining
whether a genuine issue of fact exists, the court must view all
facts in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). After the underlying facts and inferences drawn from
them are analyzed in the light most favorable to the FOIA
requester, summary judgment is appropriate when the agency
proves that it has fully discharged its FOIA obligations. Moore
v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
“FOIA cases typically and appropriately are decided on motions
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for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd.
of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (internal quotation marks omitted).
When considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B). The court may award summary judgment on
the basis of information provided by the agency in affidavits or
declarations. See Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981); Vaughn v. Rosen, 484 F.2d 820, 826-28
(D.C. Cir. 1973). Agency affidavits or declarations must be
“relatively detailed and non-conclusory.” SafeCard Servs., Inc.
v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation
marks omitted). Such affidavits or declarations are “accorded a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Id. (internal quotation marks omitted).
III. Analysis
A. The Search for Records
In response to a challenge to the adequacy of its search
for requested records, an agency “must show beyond material
doubt . . . that it has conducted a search reasonably calculated
to uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
Thus, the “‘issue is not whether any further documents might
conceivably exist but rather whether the government’s search for
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responsive documents was adequate.’” Id. (quoting Perry v.
Block, 684 F.2d 121, 128 (D.C. Cir. 1982)). The adequacy of a
search is measured by the reasonableness of the agency’s effort
to find the responsive records in light of the specific request
that was made, Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir.
1986), and depends upon the circumstances of the case. Weisberg,
705 F.2d at 1351. To meet its burden, the agency may provide “‘a
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials . . . were searched.’”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C.
Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). Any factual assertions in such an
affidavit will be accepted as true unless the requesting party
submits affidavits or other documentary evidence contradicting
those assertions. Wilson v. U.S. Dep’t of Transp., 730 F. Supp.
2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453,
456-57 (D.C. Cir. 1992)).
Here, DOD initially offered a declaration of Mark H.
Herrington, an Associate Deputy General Counsel in the Office of
General Counsel of DOD responsible for overseeing DOD’s FOIA
litigation, that averred that “searches were completed using the
case number ‘2014-0193’”; that records pertaining to DISA OIG
investigations——including reports, letters, and emails——are
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stored in an electronic database and in a shared drive and are
organized exclusively by case number; and that DISA OIG does not
keep paper files for its investigations. First Decl. of Mark H.
Herrington, ECF No. 12-2 ¶¶ 1, 8.
Ms. Walston challenges the sufficiency of this declaration.
She first argues that even though Mr. Herrington asserts that
the search was completed using the search term “2014-0193,” she
has emails between herself and DISA OIG that bear the subject
line “Case #2014-0193” and yet those emails were not part of the
records DISA OIG provided to her pursuant to her FOIA request.
Pl.’s Opp. at 8. Ms. Walston reasons that the fact that these
emails are missing from DISA OIG’s production indicates that its
search was inadequate. See id. at 8-9. She also argues that Mr.
Herrington’s declaration does not reveal who conducted the
search, what process those persons used, whether Mr. Herrington
was directly involved in the search, and whether the DISA OIG
electronic database where investigative materials are stored was
actually searched. Id. at 10. Further, because of these
shortcomings, she contends that there is a dispute of fact as to
whether all of the searches conducted actually used the search
term “2014-0193.” Pl.’s SMF ¶ 3. Additionally, she contends that
DISA OIG investigative records are retrievable by searching for
an individual’s name, id. ¶ 4 (citing Privacy Act of 1974;
System of Records, 79 Fed. Reg. 64,581, 64,582 (Oct. 30, 2014)),
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but Mr. Herrington’s declaration asserts that the records “are
stored exclusively by case number.” First Decl. of Mark H.
Herrington ¶ 8. She also contends that DISA OIG investigative
records are stored in electronic and paper form, Pl.’s SMF ¶ 5
(citing 79 Fed. Reg. at 64,582), but Mr. Herrington’s
declaration asserts that DISA OIG “does not keep a paper file
for investigations.” First Decl. of Mark H. Herrington ¶ 8. She
also argues that Mr. Herrington’s declaration does not indicate
where the search took place——i.e., whether it was conducted at
the “primary location” for DISA OIG’s investigative materials in
Fort Meade, Maryland or at the “decentralized location” at Scott
Air Force Base in Illinois. Pl.’s Opp. at 11 (citing 79 Fed.
Reg. at 64,581).
That certain emails between Ms. Walston and DISA OIG
bearing the subject line “Case #2014-0193” did not turn up in
DISA OIG’s search and, consequently, were not part of its
production to Ms. Walston does not support the conclusion that
DISA OIG’s search was inadequate because “the adequacy of a FOIA
search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the
search.” Iturralde, 315 F.3d at 315. In response to Ms.
Walston’s other challenges to the adequacy of the search, DOD
has provided a second declaration of Mr. Herrington. Second
Decl. of Mark H. Herrington, ECF No. 14-2 ¶ 2 (“The purpose of
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th[is] declaration is to address issues raised by [Ms. Walston]
in her opposition to D[O]D’s motion for summary judgment.”).
Therein Mr. Herrington specifies that DISA OIG searched for
responsive records in its electronic database, its shared drive,
and its investigators’ individual emails files. Id. ¶ 5. He also
provides that investigators working for DISA OIG conducted the
search, and the search terms they used “included” the case
number “2014-0193” and the name “Walston.” Id. Mr. Herrington
also indicates that paper files are kept for DISA OIG
investigations in “rare cases,” like those involving original
wet signatures or documents having historical significance, but
Ms. Walston’s case was not one that would involve paper files.
Id. ¶ 6. Mr. Herrington concludes by averring that DISA OIG
“conducted a thorough and reasonable search.” Id. ¶ 7.
The Court can “rel[y] on supplemental declarations
submitted with an agency’s reply memorandum to cure deficiencies
in previously submitted declarations where, as here, the
[p]laintiff filed no motion for leave to file a surreply
challenging [the] defendant’s supplemental declarations.”
DeSilva v. U.S. Dep’t of Housing and Urban Dev., 36 F. Supp. 3d
65, 72 (D.D.C. 2014) (internal quotation marks omitted).
Accordingly, the Court can consider Mr. Herrington’s second
declaration when assessing the adequacy of DISA OIG’s search.
That supplemental declaration does go a long way toward
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resolving concerns about the adequacy of the search.
Specifically, it makes clear that DISA OIG’s electronic database
for investigative materials——along with its shared drive and its
individual investigators’ email accounts——was actually searched;
that the search terms used “included” not just the case number
“2014-0193” but also the name “Walston”; that the search was
conducted by DISA OIG investigators; and that Ms. Walston’s
complaint was not the sort that would spawn paper records.
Second Decl. of Mark H. Herrington ¶¶ 5-6; see also Def.’s Resp.
to Pl.’s SMF ¶¶ 3-5. In short, through this supplemental
declaration, DOD has adequately responded to most of Ms.
Walston’s valid concerns about the adequacy of DISA OIG’s
search.
Even so, Mr. Herrington’s supplemental declaration still
does not permit DOD to carry its burden of demonstrating that
DISA OIG’s search was adequate. It is “necessary” that the
declaration that DOD relies upon aver that “all files likely to
contain responsive materials . . . were searched.” Oglesby, 920
F.2d at 68 (emphasis added). Here, Mr. Herrington’s supplemental
declaration makes clear that searches were conducted in DISA
OIG’s electronic database, in its shared drive, and in its
investigators’ email files, and his supplemental declaration
makes clear that there is no reason to think that there are
paper files connected to the investigation of Ms. Walston’s
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complaint. See Second Decl. of Mark H. Herrington ¶¶ 5-6. But
nowhere does Mr. Herrington state that the electronic database,
the shared drive, and the investigators’ email files constitute
the entire universe of files likely to contain responsive
materials. The omission of this necessary statement is all the
more troubling because it appears that investigative materials
in the DISA OIG database might be located in the “primary
location” in Maryland or in the “decentralized location” in
Illinois. See Pl.’s Opp. at 11 (citing 79 Fed. Reg. at 64,581).
Nowhere does the supplemental declaration specify where the
searches occurred or, if the searches took place in one
geographic location, whether those searches canvassed all of the
materials in both possible locations. Without the “necessary”
statement that the entire universe of files likely to contain
responsive records was searched, the Court is foreclosed from
granting summary judgment as to the adequacy of DISA OIG’s
search. See Oglesby, 920 F.2d at 68.
Additionally, for DOD to carry its burden of demonstrating
the adequacy of DISA OIG’s search, the declaration it relies
upon must set forth “the search terms” used in the search, not
some of the search terms used. Oglesby, 920 F.2d at 68 (emphasis
added). Mr. Herrington’s supplemental declaration avers that the
search terms “included” the case number “2014-0193” and the name
“Walston.” Second Decl. of Mark H. Herrington ¶ 5 (emphasis
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added). Without a complete list of the search terms used in
response to Ms. Walston’s FOIA request, the Court is unable to
conclude that DISA OIG’s search was adequate.
For these reasons, DOD’s motion for summary judgment as to
the adequacy of the search is DENIED WITHOUT PREJUDICE. DOD must
either (1) conduct a new search for the requested records to
ensure that the search is adequate, consistent with governing
case law; or (2) provide the Court with an additional
declaration from which the Court can find that DISA OIG searched
all files likely to contain responsive materials and from which
the Court can assess all of the search terms used in DISA OIG’s
search. In either event, DOD will be required to file a renewed
motion for summary judgment with a sufficiently detailed
declaration.
B. Claimed Exemptions
FOIA requires that agencies release all documents requested
unless the information contained within such documents falls
within one of nine exemptions. 5 U.S.C. § 552(a), (b). These
statutory exemptions must be narrowly construed in favor of
disclosure. Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976). The government bears the burden of justifying the
withholding of any requested documents. U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991). Here, DOD partially withheld
responsive documents pursuant to FOIA Exemptions 5 and 6. Ms.
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Walston does not challenge the propriety of these withholdings.
Pl.’s Opp. at 6.
1. Exemption 5
FOIA Exemption 5 exempts from disclosure “inter-agency or
intra-agency memorandums or letters that would not be available
by law to a party . . . in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). Thus, “Exemption 5 permits an agency to withhold
materials normally privileged from discovery in civil litigation
against the agency.” Tax Analysts v. IRS, 117 F.3d 607, 616
(D.C. Cir. 1997). To qualify as exempt under Exemption 5, “a
document must meet two conditions: its source must be a
Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Stolt-
Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733
(D.C. Cir. 2008) (internal quotation marks omitted). One of the
privileges against discovery that Exemption 5 encompasses is the
attorney-client privilege. Mead Data Central, Inc. v. U.S. Dep’t
of Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977). “The
attorney-client privilege protects confidential communications
from clients to their attorneys made for the purpose of securing
legal advice or services.” Tax Analysts, 117 F.3d at 618. “The
privilege also protects communications from attorneys to their
clients if the communications rest on confidential information
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obtained from the client.” Id. (internal quotation marks
omitted). “In the governmental context, the ‘client’ may be the
agency and the attorney may be an agency lawyer.” Id.DOD relies on the attorney-client privilege prong of
Exemption 5 to partially withhold one record. That record is an
email exchange between a DISA investigative analyst and an
attorney in DISA’s Office of General Counsel. First Decl. of
Mark H. Herrington ¶ 10. In the email exchange, the analyst asks
the attorney a legal question and the attorney responds, in
turn, with his legal opinion. Id. The analyst and the attorney
intended to communicate in confidence. Id. Because this email
exchange involved a “request[ ] for and the provision of legal
advice in the context of an attorney-client relationship,” the
partial exemption pursuant to the attorney-client privilege was
proper. See Reliant Energy Power Generation, Inc. v. FERC, 520
F. Supp. 2d 194, 207 (D.D.C. 2007); see also Elec. Privacy Info.
Ctr. v. U.S. Dep’t of Homeland Sec., 117 F. Supp. 3d 46, 65
(D.D.C. 2015) (explaining that there is “no question” that
exemption pursuant to the attorney-client privilege is proper
when the exempted material “contains a communication between
a[n] [agency] employee and a[n] [agency] attorney seeking legal
review and advice.”). Accordingly, DOD’s motion for summary
judgment on this issue is GRANTED.
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2. Exemption 6
FOIA Exemption 6 exempts from disclosure “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). Exemption 6 permits withholding of
information when two requirements have been met. See U.S. Dep’t
of State v. Washington Post Co., 456 U.S. 595, 598 (1982). The
first requirement is that “the information must be contained in
personnel, medical or ‘similar’ files.” Id. The statutory
formulation “similar files” is understood broadly to include any
“[g]overnment records on an individual which can be identified
as applying to that individual.” Id. at 602 (internal quotation
marks omitted). Thus, Exemption 6 permits exemption of “not just
files, but also bits of personal information, such as names and
addresses, the release of which would create[ ] a palpable
threat to privacy.” Judicial Watch, Inc. v. FDA, 449 F.3d 141,
152 (D.C. Cir. 2006) (internal quotation marks omitted). The
second Exemption 6 requirement is that “the information must be
of such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy.” See Washington Post
Co., 456 U.S. at 598. This second requirement demands that a
court “weigh the privacy interest in non-disclosure against the
public interest in the release of the records in order to
determine whether, on balance, the disclosure would work a
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clearly unwarranted invasion of privacy.” Lepelletier v. FDIC,
164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation marks
omitted); see also Multi Ag Media LLC v. Dep’t of Agric., 515
F.3d 1224, 1228 (D.C. Cir. 2008). The only relevant public
interest in this balancing analysis is “the extent to which
disclosure of the information sought would she[d] light on an
agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to.” Lepelletier, 164
F.3d at 46 (internal quotation marks omitted).
Here, pursuant to Exemption 6, in 13 documents produced to
Ms. Walston DOD withheld the names, email addresses, phone
numbers, signature blocks, and office locations of the low-level
DISA employees who conducted the investigation related to her
complaint. Def.’s Mem. Supp. at 16; First Decl. of Mark H.
Herrington ¶¶ 11-13. This information is the sort that satisfies
Exemption 6’s first requirement, as the DISA OIG investigators,
working in a component of DOD, are employed in a “sensitive
agenc[y]” and have “sensitive occupations.” See Long v. Office
of Pers. Mgmt., 692 F.3d 185, 192 (2d Cir. 2012). Accordingly,
they “have a cognizable privacy interest in keeping their names
from being disclosed.” See id.; see also Ctr. for Pub. Integrity
v. U.S. Office of Pers. Mgmt., No. 04-1274, 2006 WL 3498089, at
*3-4 (D.D.C. Dec. 4, 2006) (accepting a plaintiff’s concession
that personal information about DOD employees constitutes the
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type of information that satisfies Exemption 6’s first
requirement); O’Keefe v. U.S. Dep’t of Defense, 463 F. Supp. 2d
317, 326 (E.D.N.Y. 2006) (holding that names and telephone
numbers of DOD personnel who conducted or reviewed an
investigation constitute the type of information that satisfies
Exemption 6’s first requirement). Thus the information withheld
in this case was the sort of personal information “the release
of which would create[ ] a palpable threat to privacy.” Judicial
Watch, 449 F.3d at 152 (internal quotation marks omitted).
The privacy interest that exists here is not outweighed by
the public interest in the release of the redacted information.
“In this balancing analysis, [Ms. Walston] bears the burden of
establishing a legitimate public interest supporting disclosure
which is in line with the core purpose of FOIA, to contribute to
greater general understanding of agency practice and procedure.”
Clemmons v. U.S. Army Crime Records Ctr., No. 05-2353, 2007 WL
1020827, at *5 (D.D.C. Mar. 30, 2007) (citing U.S. Dep’t of
Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495
(1994)). Ms. Walston has not attempted to demonstrate a
legitimate public interest supporting the disclosure of the
investigative employees’ names, phone numbers, email address,
and office addresses. See Pl.’s Opp. at 6. In its own analysis,
the Court does not see how disclosure of that information would
“she[d] light on an agency’s performance of its statutory duties
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or otherwise let citizens know what their government is up to.”
Lepelletier, 164 F.3d at 46 (internal quotation marks omitted).
Accordingly, DOD’s motion for summary judgment on this issue is
GRANTED.
C. Segregability
If a record contains some information that is exempt from
disclosure, any reasonable segregable information not exempt
from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably
intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-
Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1027 (D.C. Cir. 1999). The Court has an “affirmative duty to
consider the segregability issue.” Trans-Pac. Policing
Agreement, 177 F.3d at 1028. The reviewing court may rely on the
agency’s description of the withheld records and its declaration
that it has released all segregable information to conclude that
the agency has fulfilled its obligation to show with reasonable
specificity why documents cannot be further segregated. See
Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008).
Here, Mr. Herrington avers that “[a]ll of the documents
addressed herein have been carefully reviewed for reasonable
segregation of non-exempt information, and it has been
determined that no further segregation of meaningful information
in the withheld documents can be made without disclosing
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information warranting protection under the law,” First Decl. of
Mark H. Herrington ¶ 15, and he describes in some detail the
portions of the documents that have been withheld pursuant to
Exemptions 5 and 6. Id. ¶¶ 10, 13. Based on Mr. Herrington’s
averment that no further segregation is possible and his
explanation of the basis for the redactions that were made, it
appears that DISA OIG has redacted only what was necessary to
protect the exempt information. Thus, DOD’s “affidavit[ ]
provided here show[s] with ‘reasonable specificity’ why the
documents cannot be further segregated.” Armstrong v. Exec.
Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).
Accordingly, the Court concludes that DISA OIG has released all
reasonably segregable information and, thus, DOD’s motion for
summary judgment as to this issue is GRANTED.
IV. Conclusion
For the reasons stated above, DOD’s motion for summary
judgment is GRANTED IN PART and DENIED IN PART WITHOUT
PREJUDICE. As to its claimed exemptions and the segregability of
the records it has produced, DOD’s motion is granted. As to its
search for records, DOD’s motion is denied without prejudice. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 28, 2017
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